Expert: Man's DNA not present in evidence

Missouri death row inmate Brian J. Kinder's DNA was not present in the re-testing of evidence from the 1990 rape and murder for which he was convicted, a DNA expert said Wednesday.

But there is little DNA to test, and some of the original samples have degraded to the point where testing can't be done, Missouri Highway Patrol DNA technical leader Cary Maloney said in a Cole County courtroom.

Kinder, his attorney Frederick Duchardt Jr. and lawyers from the Missouri Attorney General's Office were there to discuss the results of testing that could be the only thing standing between Kinder and the death chamber.

Those tests were ordered by St. Louis Circuit Judge Lisa Van Amburg, who was assigned as special master to the case by the Missouri Supreme Court after Duchardt questioned the original DNA testing.

DNA helped convict Kinder in 1992 of the Dec. 21, 1990, rape and murder of his distant cousin, Cynthia Williams, in her home in Crystal City.

All of Kinder's appeals have been denied so far, but after the attorney general's office asked the Supreme Court to set an execution date, Kinder got another chance.

Duchardt argued that the original DNA testing was either flawed or contaminated, and that the state's DNA expert erased a mark on the DNA test that would have exonerated Kinder.

That court exhibit has been lost.

But the attorney general's office said the evidence was never altered, and the DNA expert testified at the trial that the mark in question either indicated a match with Williams' DNA or was produced by photocopying.

Although Van Amburg stressed that Wednesday's hearing was simply a status conference, if Kinder's DNA had matched evidence taken from the scene, it would likely have marked an end to delays in setting his execution date.

If tests identified another male's DNA, it might not help Kinder either. The attorney general's office could argue that the DNA came from the victim having consensual sex with someone else before the murder.

The tests have been inconclusive so far. Assistant Attorney General Deborah Daniels said that for Kinder to prevail under the law, DNA testing must produce evidence that would have changed the outcome of the trial if jurors had been aware of it.

Duchardt said that if further rounds of testing are also inconclusive, the questions might still cause the Supreme Court to say, "This smells to high heaven, and we are not going to execute a man based on flawed testing."

Van Amburg told Duchardt to propose another round of testing by Dec. 31, and to research the advanced testing technologies that might be used on what little DNA evidence is left. That testing could include one method so new it's not yet accepted for use in Missouri courts.