DNA FINALLY UPSETS A SCANDALOUS CONVICTION

Drew Whitley had never met the young woman who approached him outside his mother's modest Braddock apartment yesterday, gently shook his hand and muttered: "God bless you." An examiner scrutinizing his driver's license application the other day thanked him for his perseverance. At a shopping center over the weekend, Mr. Whitley encountered a deluge of well-wishers. "People I don't know walked up to me and told me they are sorry for what happened, and to thank me for standing so strong," he said. "They told me my fight gives people hope." The warm welcomes feel great, but they take some getting used to.

Eight days ago, Mr. Whitley was nearing his 18th year in state prison, where he was serving a life sentence for the brutal 1988 murder of Noreen Malloy, a 22-year old McDonald's restaurant night manager. People weren't so nice to him there. Then he abruptly was set free with intense media coverage -- only the second man in Allegheny County ever to be exonerated by modern-day DNA tests on physical evidence from a crime long ago....

Mr. Whitley said he was able to keep fighting for his freedom because he was innocent, because of his own strong "spirit," and because of the support of his mother on the outside, and several of his friends on the inside.

One of those was Thomas Doswell, who was incarcerated in various prisons with Mr. Whitley before being released last August. Mr. Doswell had spent nearly 19 years in prison until DNA tests showed that he could not have committed the rape for which he had been convicted. "Me and Tommy, we were just fortunate that we had some DNA evidence to test. Believe me, there's a lot of people I know are innocent who are still locked up," Mr. Whitley said.

The path to his exoneration began last year when a judge ordered a round of DNA tests on hairs found on clothing worn by the man who killed Ms. Malloy. She was shot twice outside the McDonald's restaurant near Kennywood Park during an aborted robbery early on a summer morning in July 1988.

After a second set of tests showed that hairs found in the mask worn by Ms. Malloy's killer were not Mr. Whitley's, Allegheny County District Attorney Stephen A. Zappala Jr. dropped the case.

Twenty-one states and the federal government have a claims process to provide restitution to victims of wrongful convictions, but Pennsylvania does not. A bill to set one up, sponsored by state Rep. Michael P. McGeehan, D-Philadelphia., has languished in the Legislature since last May. "It's crazy," Mr. Whitley repeated. "I keep saying that because it is."

Mr. Whitley yesterday also reached out to the family of Ms. Malloy, whose murder now is listed as unsolved and under renewed investigation by the Allegheny County Police Department. Her family has not chosen to comment on his exoneration. "I got my closure, I got out, but they got to go over it again," Mr. Whitley said. "That has to be double hard for them, especially for the mother. I know it is. They are in my prayers."

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Background

The events that left a bright 22-year-old woman dead and Drew Whitley's life forever changed began on a summer night in 1988 when Noreen Malloy and her late-night staff at the McDonald's restaurant near Kennywood Park finished cleaning up at 2:45 a.m. Ms. Malloy sent one employee to the parking lot to make sure it was safe for the others to leave. Jerome Wilson, who had worked at the restaurant for two days, was waiting outside the back door to start his 3 a.m. shift.

As the employees emerged from the building, a tall, black man wearing a beige trench coat, a dark nylon stocking mask and a felt hat darted from a stairwell holding a gun and shouting, "Don't move!" He grabbed Ms. Malloy by the neck, demanding the "money bag." "I don't have a bag," the frightened woman cried. The gunman fired into the air, causing the others to flee.

She pushed herself away and tried to get into her car. The gunman shot her in the back, grabbed her purse and fled through the vast Kennywood parking lot, leaving Ms. Malloy dead.

In the parking lot, police found the hat, the coat and the mask, all loaded with fragments of hair. They also found two .25-caliber shell casings, a tennis shoe footprint and two Newport cigarette butts. None of the witnesses could identify the killer.

Police eventually found a witness in Mr. Wilson, the new employee, who had said an hour after Ms. Malloy's killing that he had looked directly at the assailant from a distance of 3 feet but did not know who he was. Twenty-six hours later, after repeated interrogations, Mr. Wilson named Drew Whitley as the killer, according to a police report. He said he recognized Mr. Whitley, who lived near him, from his long face, his voice and his pigeon-toed stride. Mr. Whitley was known as a con artist, but few around his home in Monview Heights in West Mifflin considered him dangerous. He said he had never met Mr. Wilson.

The day of Ms. Malloy's killing, Mr. Whitley was scheduled to appear for a preliminary hearing on a charge of theft by deception. He said he dropped his son off at his mother's house that night and returned alone to his apartment. Mr. Whitley was jailed the next day on a technical parole violation for not reporting the theft charge within 72 hours. He has been locked up since.

Mr. Wilson's story contradicted so much evidence collected in the aftermath of the Malloy killing that police did not immediately file charges against Mr. Whitley, but they compared hair and fingerprints collected at the scene with those of Mr. Whitley. Nothing matched. DNA testing was not available at the time.

Six months later, Gary Starr, a double-murderer on death row, said Mr. Whitley had confessed to the Malloy killing in a conversation at the State Correctional Institution Pittsburgh. Mr. Whitley said he had never met Mr. Starr, and penitentiary records show that Mr. Starr was isolated on death row and would not have had access to Mr. Whitley at the prison. Within a year of Mr. Whitley's trial, Mr. Starr's death sentence was reduced to life in prison, although he had claimed prosecutors promised him nothing in return for his testimony. Mr. Starr has not responded to letters seeking comment on the Whitley case.

On the witness stand, Mr. Wilson was the only person at the scene of the crime to identify Mr. Whitley as Ms. Malloy's killer. But he was unable to keep straight whether the assailant held the gun in his right or left hand, whether his trench coat was long or short or whether he was wearing gloves. At one point, Mr. Wilson said the killer wore a straw hat, not a felt hat, and he mischaracterized its size. Mr. Wilson could not say where Mr. Whitley lived in relation to him, or when he had last seen or spoken with him.

One piece of evidence which damaged Mr. Whitley's case was a speck of blood found on one of his tennis shoes which was of the same type as Ms. Malloy's. Mr. Whitley said the blood came from a cut his son had suffered the previous day, and it has never been tested further.

Dorothy Menges, then a criminalist with the Allegheny County Crime Lab, testified that hairs from the crime scene had "many, many overlapping characteristics" to those of Mr. Whitley, but under questioning from Judge Walter Little, she backed off: "You can't say hair came from Whitley?" the judge asked. "No," replied the crime lab manager. She also acknowledged that saliva from two Newport Light butts found at the scene did not match Mr. Whitley's, nor did saliva taken from the killer's stocking mask.

During closing arguments, Assistant District Attorney Nicholas Radoycis pointed to the hairs in the mask and hat as strong evidence of Mr. Whitley's guilt. Mr. Whitley's attorney told the jury that the hair evidence was obviously inconclusive and that no physical evidence linked Mr. Whitley to the crime. Mr. Whitley was convicted of second-degree murder, which spared him the death sentence but condemned him to life behind bars. "I know that you know in your heart that I did not commit this crime," Mr. Whitley told Judge Little at his sentencing. "I am being railroaded. It is a nightmare. ... I am poor and black, but I am not crazy."

DNA testing came into widespread use in the 1990s, and Mr. Whitley petitioned to have the evidence in his case checked against his DNA. After a six-year fight, Judge Little granted DNA testing, but at that point, the Allegheny County police could find only two of the 41 hairs found in the stocking mask and elsewhere at the crime scene. Police officials said the rest of the evidence had been lost during a flood at its Wood Street headquarters in the mid-1990s. The testing of the two hairs was deemed inconclusive.

Last year, county police found the missing hair samples and notified Mr. Whitley's attorney, Mr. Coffey, who used the 2002 post-conviction DNA law to win a ruling to test the hair. Prosecutors argued that the testimony of Mr. Wilson and Mr. Starr would have convicted Mr. Whitley without the hair evidence, but in the wake of the exoneration of Mr. Doswell, District Attorney Stephen A. Zappala Jr. decided not to contest the decision.

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