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Kentucky Supreme Court delves into DNA evidence, attorney performance in death penalty case

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FRANKFORT, Kentucky — A group of skeptical justices from the Kentucky Supreme Court on Thursday questioned whether previously untested biological evidence would have changed the conviction of a man on death row for a kidnapping, rape and murder 27 years ago.

The justices repeatedly asked an attorney for 57-year-old Gregory L. Wilson how tests results showing that semen and hair didn't match his client could undercut witness testimony and other evidence against him.

Justice Mary Noble wondered if a jury could still find Wilson guilty of raping 36-year-old Deborah "Debbie" Pooley in 1987 based on testimony from a co-defendant and witnesses even if DNA tests show the biological evidence didn't match Wilson. The evidence was considered lost for several years. It has since been located, but never tested.

"This doesn't exclude him from having raped her," Noble said.

Wilson, who served multiple prison sentences for rape in Ohio, was sent to death row at the Kentucky State Penitentiary in Eddyville in 1988. Prosecutors say Wilson raped and later strangled Pooley while an accomplice, 60-year-old Brenda Humphrey, drove after she was kidnapped from Kenton County on May 29, 1987. Her body was found in Indiana two weeks later. Wilson and Humphrey were later arrested wearing two gold chains belonging to Pooley.

The oral arguments are at least the fourth time the justices have taken up Wilson's case. At stake is a possible new trial for Wilson.

Wilson's attorney, Bruce Hackett, told the justices DNA tests could back his client's repeated assertion that he didn't rape Pooley in the back of her car.

"The point of DNA is that it can exclude somebody," Hackett said. "It can absolutely exclude somebody."

Noble said in this case, DNA tests wouldn't clear Wilson because there's no way to know when the evidence was put there or how it got there after the car sat abandoned for several weeks and multiple people went through it.

"It's not an exoneration of him," Noble said.

"Even if that undermines the rape conviction, what about the fact that there are two other aggravators?" Justice Lisbeth Hughes Abramson said, referring to the kidnapping and robbery convictions.

Hackett also asked the judges to consider that Wilson's trial attorneys, John Foote, who had no experience in felony cases, and William Hagedorn, a semi-retired lawyer who gave his office number as the phone number for a local bar, failed to adequately represent Wilson. The two men didn't contact Wilson's family in Cleveland, Ohio, and didn't introduce mitigation showing his client's rough upbringing without a father and little schooling, Hackett said.

"I think there's overwhelming evidence of ineffective assistance of counsel," Hackett said.

Justice Bill Cunningham said there's "overwhelming evidence" of Wilson's guilt and that alone is enough to warrant a conviction and death sentence.

"As horrible as that may be, that's not as horrendous as the details of this crime," Cunningham said.

Assistant Attorney General Heather Fryman said Pooley's family has waited 27 years for the case to end and that the evidence warrants a conviction and death sentence.

"They're watching you now, waiting," Fryman said.

Wilson's claim of a possible mental disability in 2010 was the catalyst for Franklin Circuit Judge Phillip Shepherd to stop all lethal injections in Kentucky the eve of Wilson's scheduled execution. Wilson's attorneys have since dropped the disability issue.

The state has changed its execution method to a one or two-drug method. Shepherd has expressed concerns about the drugs after executions in Ohio and Oklahoma, which use similar drugs, went awry.

Humphrey is serving a life sentence. She lost a parole bid in 2012, but is eligible again in June 2017.

Kentucky has executed three inmates since the reinstatement of the death penalty in 1976, with the last execution in 2008.

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