Death row inmate wins right to DNA testing

LOUISVILLE - A death row inmate won the right for the DNA testing of some evidence stemming from an old murder, the second time a condemned prisoner in Kentucky has won such a request.

A Fayette County Circuit judge on Friday granted a request by Thomas Clyde Bowling, 54, to test a jacket, hat and thermos that were gathered after the 1990 slayings of a husband and wife in Lexington.

The judge rejected an attempt to take DNA samples from a car used as a getaway vehicle, saying too many people could have driven or been passengers in the car, making any test results unreliable.

"Even if touch DNA or mitochondrial DNA could be located 16 years later, there is no credible proof to establish the age of the DNA," judge Kim Bunnell wrote. "Thus, there would be no proof to connect the evidence to the time period of the crime."

Bowling is awaiting execution after being convicted of shooting Eddie and Tina Earley outside their Lexington dry cleaning store, Earley Bird Cleaners. The couple's son survived the attack.

Kentucky's law allows condemned inmates to request genetic testing of evidence in cases that predate the use of DNA testing.

Another death row inmate, 49-year-old Brian Keith Moore, has been granted a DNA test on evidence stemming from a 1979 murder.

Bowling's attorney, Assistant Public Advocate David Barron, said the DNA could point to another suspect who lived in the area and had a grudge against the Earleys. The thermos will be tested if it can be located and could prove valuable, Barron said.

The thermos was among the items found in the getaway car, but it wasn't introduced as evidence at trial and it's current location is unknown. But because someone likely drank from it around the time of the murder, it could provide evidence that someone else was in the getaway car at the time of the slayings, Barron said.

"If it's something somebody drinks from, you would think it wouldn't have sat there for months before the crime," Barron said.

Fayette County Commonwealth's Attorney Ray Larson called Bowling's requests part of a "never-ending appeal" and said he may appeal the decision.

"We don't have to make that decision immediately," Larson said.

Kentucky's law is similar to statutes in 39 other states. It allows death row inmates to request DNA testing on evidence so long as there haven't been previous tests and that they can convince a judge that the evidence would have affected the outcome of their trial.

Similar tests have resulted in more than a dozen people around the country being freed from death row. At least two other death row inmates in Kentucky have filed for DNA testing. Roger Epperson, convicted of the June 1985 slaying of Tammy Acker in Letcher County, and Victor D. Taylor, convicted of the September 1984 kidnapping, robbery and murder of two high school students in Louisville.

Bowling was originally scheduled for execution in November 2004 for the slayings. He has previously lost appeals claiming he is mentally retarded and that he is ineligible for execution because his mental age falls below 18.

Kentucky has executed two inmates since the reinstatement of the death penalty in 1976.