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Pa. Superior Court Approves DNA Testing for Robert Conway

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In the Commonwealth of Pennsylvania, those convicted of crimes can have DNA evidence tested post-conviction if the perpetrator’s identity was at issue during the trial and DNA testing would establish prove the defendant is “actually innocent.”  Norristown man Robert Conway, convicted of the 1986 stabbing death of Michele Capitano, asked for physical evidence collected from the murder scene to be tested for DNA to establish his innocence of the crime.   The case is unusual, and the first in Pennsylvania to raise the question of what “proof of actual innocence” means.   Unlike cases where the perpetrator of the crime left behind known biological material (like blood or semen) which would establish the criminal’s identity, in this case no single piece of evidence seemed likely to definitively identify the killer. 

But here, according to lawyers from The Innocence Project and local counsel Steve Fairlie, the presence of a “redundant profile” of a single person (and the absence of DNA from Mr. Conway) would prove his innocence.  That is, if a single foreign DNA profile is found on multiple pieces of evidence from the scene, the logical inference is that it came from Ms. Capitano’s killer.  Further, if that DNA profile could be compared to other profiles in CODIS, the national DNA database the true perpetrator could be identified. 

The trial court denied the request for DNA testing, and Mr. Conway appealed to the Superior Court.  In a unanimous decision, the Court reversed the trial court and ordered that the testing take place. A copy of the opinion is available here: Robert Conway Superior Court opinion

Conway’s case is especially important because it underscores the need for the Commonwealth to consider new criteria for establishing when to allow post-conviction DNA testing, and how DNA can be used to prove innocence. The Commonwealth has not yet filed an appeal from the Court’s decision.

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