Convicted murderer, rapist asks court for new DNA tests
Motion claims Smith's brother may have committed the crimes
Staff reporter
DNA evidence was first used in a Kansas court in 1986 in Marion County. Now those DNA tests are being challenged.
On Sept. 8, arguments will be heard in Marion County District Court regarding new tests.
Oliver Smith, convicted murderer and rapist of 22-year-old Shelly Prine, is asking the court for new DNA testing to prove his innocence.
Students from the University of Kansas School of Law took the case following a request made by Smith.
Jean Gilles Phillips is the attorney representing Smith and is director of the Paul E. Wilson Defender Project at KU. She filed a motion in April requesting the court to retest Smith's DNA.
"A motion was filed stating (previous) DNA testing was flawed," said Phillips.
In the motion document, Smith's brother was implicated as the possible perpetrator.
"Individuals close to Mr. Smith have made it known that his brother, and not Mr. Smith, could have perpetrated the crimes against Mrs. Prine," read the motion, which was written by Phillips.
"The testing procedure used to convict Mr. Smith very likely would not have excluded his blood brother and the probability his brother would have a matching DNA profile is much greater than a person randomly chosen from the general population," continued the document.
Smith was convicted in January 1989, of the Oct. 26, 1986, rape and murder of the rural Goessel woman.
The recently-filed motion requested DNA that was collected at the scene of the crime in 1986 by the Kansas Bureau of Investigation be tested and compared with Smith's DNA.
In 1987, DNA testing only required a match of one loci or factor. Current standards require a match of at least 13.
"A state statute was passed four years ago that allows those convicted of rape and murder the right to have DNA tested, if there is genetic material in the possession of the state that had not been tested," said Phillips. "If evidence can be subjected to new DNA testing, the petitioner has the right to have that done."
Since passing the statute, Phillips cited a Kansas Supreme Court case ruling a few months ago that a person has a right to have it tested even if it's a "fishing expedition," Phillips said.
The main issue to be discussed at the Sept. 8 hearing will be if there is sufficient DNA from 1986 still available to test.
"You can't tell by looking at it (evidence)," Phillips said. "You have to get it in the lab and test it."
Special Marion County prosecutor Stephen Joseph of Wichita agrees the new statute gives Smith the right to force the issue.
"If the defendant can come forward to prove there is evidence to test," Joseph said, "it is the judge's discretion to have the retesting."
The judge also will determine the options if a test is conducted.
If the motion is denied by the judge, an appeal can be filed.
"There's no reason not to send this to a lab and have somebody attempt to retrieve the DNA material," said Phillips. "That's the purpose of the statute."
Joseph agrees.
"I'm never opposed to having DNA testing," said Joseph.
The crime
Shelly Prine's husband, Robert, discovered his wife with two bullet wounds to the head Oct. 26, 1986, when he returned from a hunting trip.
According to a story in the issue of the Oct. 29, 1986, Marion County Record, Kansas Bureau of Investigation assisted the Marion County Sheriff's Department in the investigation and subsequent arrest of 25-year-old Oliver Smith, 11 months after the crimes were committed.
Smith was charged with first degree murder and rape.
DNA evidence from the rape would be the first court case in Kansas where DNA evidence was used.
The trial began in Marion County but was moved to Geary County following a motion made by Smith's attorney, Ralph DeZago.
Concerns of a fair trial in Marion County due to the small size of the county and lack of African-American residents to serve on the jury were the primary reasons for the change of venue.
Smith was African-American and Prine was Caucasian.
Witnesses reported they had seen a motorcycle leaving the Prine residence but no one could identify the bike or the rider. Smith owned a motorcycle at the time.
Smith worked with Robert Prine in Newton and was a friend of the couple.
Smith was convicted of the crimes and sentenced to life in prison for first-degree murder and a consecutive term of 15 years for rape.
The case
The state's decision to use DNA testing, a novel form of evidence at the time, brought publicity to the case and the subject of a July 1989, Reader's Digest article about the case, stated Phillips in the motion.
LifeCodes Corporation provided the DNA testing for the state.
According to state's experts, there was more than a 99 percent probability that Smith was a contributor of the DNA found at the crime scene.
In 1989, only one loci or location was used in determining if the DNA found at the murder scene matched Smith.
After LifeCodes concluded Smith's DNA profile "matched" the evidence sample, the state presented this evidence at trial.
The state's experts testified the DNA test excluded all but .2 percent of the white population and all but .4 percent of the black population as donors of the DNA.
"If presented in court today, the DNA evidence used against Mr. Smith would be ruled inadmissible," stated the document. "Because Mr. Smith's conviction was based on a match with the evidentiary sample at one locus, and because this result would not meet the current standards of the scientific and forensics communities, Mr. Smith is entitled to retesting under K.S.A. 21-2512," stated Phillips in the court case.
"The lab is no longer in business," said Phillips. "The procedures they were using at that time were flawed because the data base for comparison was flawed."
Phillips said the lab did not have accurate population information and that type of testing is no longer conducted.
The class
Students in the Paul E. Wilson Defender Project at the University of Kansas School of Law receive more than 300 requests each year from defendants wanting their cases reviewed for possible appeal.
Of the 300-400 cases, only 40-50 cases actually make it to the review process.
The class conducts investigations, narrowing the requests to five to 10 cases, and files petitions.
Currently, the class is working on six cases.
The department has three attorneys and takes 20 students in the fall. The class continues through the spring semester.
"There were five this summer in the class," said Phillips. "Typically, the students are interested in being a prosecutor or a defense attorney."
The goals of the class are to expose the students to procedure, clients, and "give them a feel for criminal law," said Phillips.
This is the second time the class had researched the case and represented Smith. Due to procedural errors, the case was dismissed with prejudice, which meant it could be refiled.
"Nobody ever refiled it," said Phillips. "He (Smith) recontacted the project a year or two ago saying 'You guys helped me out a long time ago. I don't know what happened to my case'," said Phillips.
In the early 1990s, the class reexamined the case. When the statute was passed four years ago allowing new DNA testing for murder and rape crimes, Phillips knew it was time to look at the case again.
Joseph, special county prosecutor, also was a member of the class while attending law school.
"I feel I've come full circle," said Joseph.
The DNA
If DNA can be successfully retrieved from evidence gathered at the crime scene in 1986, lab technicians now have the capability to replicate DNA and use it for testing.
If the appeal is granted, new DNA will be drawn from Smith and compared to the crime scene DNA.
According to both Phillips and Joseph, the new process of testing is far more reliable than the previous methods.
"At trial, it was narrowed down to four percent of the population," said Joseph. "Now it would be narrowed down more."
The cost for DNA testing is expensive and is typically paid by the client.
"The state does the testing," said Phillips. Sometimes an independent lab is requested.
"A straight-up test costs $3,000," said Phillips, where DNA is tested against the individual, the original sample, and at least two tests to make the comparisons.
"My understanding of DNA is that there is a vast majority that is the same in all of us," said Phillips, "but there is a difference that makes it unique."
In Smith's DNA testing, the motion states the evidence was "at best, unreliable, and at worst, completely erroneous."
