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Ky. high court rejects appeal, new evidence claim from six-time convicted killer on death row

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LOUISVILLE, Kentucky — An expert opinion offering a new take on old evidence after a re-examination of the materials does not constitute newly found information about two murders, the Kentucky Supreme Court ruled Thursday.

The high court's decision came in the case of 57-year-old Robert Carl Foley, who is awaiting execution for the 1991 slayings of brothers Rodney and Lynn Vaughn in Laurel County as well as four killings in 1989.

Justice Daniel Venters wrote for a unanimous court that if inmates were allowed to have experts offer fresh opinions of old evidence, cases would never come to an end.

In this case, the expert witness failed to identify anything that was previously unknown about the shooting, Venters said. Also, the expert report is filled with "speculation, inference and surmise," Venters said.

"There would be no finality to a verdict if the facts upon which it was based were perpetually subject to whatever reanalysis might be conceived in the mind of a qualified expert witness," Venters said.

Foley, the convicted of more killings than any of the state's 33 condemned inmates, says a firearms expert's examination shows that he acted in self-defense when he shot the brothers in Laurel County 23 years ago.

Foley, a former FBI informant, also was convicted of killing four other people in eastern Kentucky in 1989 and 1991.

Prosecutors say the Vaughns were killed Aug. 17, 1991 as they — along with Foley, eight other adults and several children — were gathered at his home.

A fight broke out between Rodney Vaughn and Foley that subsided but escalated again when Rodney Vaughn pointed a finger at Foley and warned him against delivering another sucker punch. Prosecutors say Foley knocked Rodney Vaughn to the floor, drew his pistol and shot six times.

The shooting prompted most of the crowd to exit the home, leaving only the Vaughn brothers, Foley and another man behind. Prosecutors say Foley retrieved another gun from the kitchen; went back to the living room, where Lynn Vaughn remained next to his dying brother; and shot Lynn Vaughn in the back of the head.

"He then kicked Rodney's corpse, saying 'you son of a bitch, you caused me to have to kill my partner (Lynn)'," Venters wrote.

Foley says Rodney Vaughn pulled a pistol first, forcing him to shoot in self-defense and that another man shot Lynn Vaughn.

Foley presented a review of the evidence by John Nixon, a forensic expert on firearms and ballistics from Fort Wayne, Indiana Nixon concluded that the evidence supported Foley's version of events and that the shooting constituted self-defense.

"An opinion consisting simply of a re-examination and reinterpretation of previously known facts cannot be regarded as 'newly discovered evidence'," Venters wrote.

Kentucky is under a judge's order banning executions because of issues with the way the state carries out lethal injections. A judge in Frankfort is expected later this year to set a trial date in that case.

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Follow Associated Press reporter Brett Barrouquere on Twitter: http://twitter.com/BBarrouquereAP

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