STATE OF MISSOURI ) Case No. CR484-5F Plaintiff, ) ) vs. ) ) PATRICIA ANN PREWITT ) Defendant. ) MOTION FOR POST-CONVICTION DNA TESTING

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1 IN THE 18 TH CIRCUIT COURT OF PETTIS COUNTY, MISSOURI DIVISION 4 STATE OF MISSOURI ) Case No. CR484-5F Plaintiff, ) ) vs. ) ) PATRICIA ANN PREWITT ) Defendant. ) MOTION FOR POST-CONVICTION DNA TESTING COMES NOW Movant Patricia Ann Prewitt, by and through her undersigned counsel, pursuant to Section , Mo. Rev. Stat., respectfully requests that this Court order post-conviction DNA testing of physical evidence secured in relation to the murder of William Prewitt, Mrs. Prewitt s husband. Mrs. Prewitt asserts that DNA analysis on previously untested evidence would provide exculpatory evidence substantiating her innocence and identify the actual perpetrator of the crime. At the time of the crime and Mrs. Prewitt s trial, DNA testing was unavailable, so none of the evidence secured in relation to the crime was previously analyzed for DNA. Specifically, Mrs. Prewitt requests that the following items be tested for DNA: 1

2 (1) Pajama top of Patricia Prewitt (Item 18) 1 (2) Pajama bottom of Patricia Prewitt (Item 19) (3) Telephone and cord from master bedroom (Item 9) (4) Telephone and cord from downstairs hallway (Item 13) (5) Veri Veri Sharp serrated knife recovered from yard (Item 16) (6) St. Regis Knife found behind cushion of love seat in family room (Item 1B) (7) Paring knife (Item 3D) (8) Brown towel (Item 6D) (9) Cut & pulled victim hair samples (Item 20) (10) Pillow and pillow case from under victim s head (Item 3) In the absence of eyewitnesses, the prosecution s case relied heavily on attacks on Mrs. Prewitt s character and credibility and the lack of an alternative suspect. DNA evidence corroborating Mrs. Prewitt s account of an intruder who assaulted her and murdered her husband would create a reasonable probability that a jury would not have convicted Mrs. Prewitt. Mrs. Prewitt has served over 31 years of a life sentence; she has always maintained her innocence. Trusting that the Sheriff s Office would find her husband s killer, she cooperated with investigators 1 Item numbers are those indicated on the Property Records used the Johnson County Sherriff s Office in their investigation. These records are attached as Exhibit A. 2

3 by meeting with them without a lawyer for over 20 hours in the three days following the murder. Trusting that a jury would reach the correct outcome, she rejected a plea deal that would have made her eligible for parole over two decades ago. Once again, Mrs. Prewitt places her trust in our justice system by petitioning this Court. In support of her motion, Mrs. Prewitt pleads the following: Sentence A jury convicted Mrs. Prewitt of capital murder on April 19, 1985 (T ) She was sentenced to life without eligibility for parole until she has served fifty years (T. 710.) She is currently in the custody of the Missouri Department of Corrections at the Women s Eastern Reception, Diagnostic and Correctional Center in Vandalia, Missouri. Factual Background High school sweethearts William (Bill) and Patricia (Patty) Prewitt married in 1968 (T. 572.) The Prewitts were active in their small community of Holden, a town with 2000 residents roughly fifty miles outside of Kansas City. By 1984, they had five school-aged children and owned and operated a lumberyard in the center of town. In the early morning hours of February 18, 1984, Patty and Bill returned to their home after a night of socializing with friends. Bill went to bed after 2 Cites to the Trial Transcript are cited as T. followed by the transcript page number. 3

4 checking on their children and Patty followed after placing some dishes in the kitchen sink (T. 602.) What happened next is, of course, the primary source of dispute in this case. Throughout the case, the prosecutor characterized Patty as a lustful woman intent on murdering her husband (T. 148, 656, 659, 664.) In his closing statement, the prosecutor reminded the jury that Bill Prewitt was nude in that bed, and argued that Patty, after lulling an unsuspecting Bill Prewitt to sleep, shot her husband twice (T ) The prosecutor stated that Patty then set the stage to make it seem like an intruder murdered Bill and attacked her by inflicting marks on her throat, severing the phone line, and hiding the murder weapon (T ) As described in greater detail below, Patty maintains that an intruder murdered her husband and attacked her before fleeing the scene. What is not disputed is that Bill Prewitt was shot in his bed and that Patty sustained injuries. The Investigation The lead investigator in the Prewitt case, Johnson County Deputy Sheriff Kevin Hughes arrived at the Prewitt home at about 4:40 AM on February 18 (T. 255.) Hughes conducted a brief survey of the murder scene. Mrs. Prewitt had driven herself and the children to the home of a neighbor, a former police officer, to seek help. (T ) Hughes drove to the neighbor s home to interview Patty 4

5 with his colleague, Deputy Doug Rusher. 3 Still dressed in the flower print pajamas she wore to bed, Patty shared her account with the investigators (T ) She told Hughes and Rusher that she woke up to what she thought was a clap of thunder. 4 She was grabbed by her hair, and thrown to the floor by a man who pulled down Patty s pajama bottoms and panties and held a knife to her throat (T. 277.) After a struggle, the assailant departed down the stairs. 5 Patty checked on her husband who was incapacitated by the injuries he had sustained. 6 The lights were inoperable, as were the phones. 7 She gathered the children and left to seek help. 8 Hughes learned from Patty that the Prewitts owned two guns. 9 Patty had cuts on her neck. 10 She did not receive medical attention for these wounds. Subsequent actions by Hughes and his colleagues exhibit a single-minded focus on Patty as the perpetrator. As a result, no efforts were made to test evidence that could identify another suspect. Leads that pointed to another suspect were not followed. Indeed, Hughes later revealed he had arrived on the scene mindful of a 3 The account of this interview is drawn from the testimony of Kevin Hughes, where cited, as well as the report of the interview authored by Deputy Doug Rusher: Doug Rusher, Johnson Cty. Sheriff s Office, Offense/Incident Report, Complaint No (Feb. 18, 1984). This report is attached as Exhibit B. 4 Ex. B at 3. 5 Ex. B at 4. 6 Id. 7 Id. 8 Id. 9 Transcript of Deposition of Kevin Craig Hughes at 6, State v. Prewitt, No CV F (Mo. Cir. Ct. May 25, 1984). 10 Ex. B at 3. 5

6 statistic that seventy-five percent of murders are committed by a family member or friend of the victim (T ) After his initial interview with Patty at her neighbor s house, Hughes returned to the Prewitt home. Little physical evidence was collected in these crucial, early hours of the investigation, even though much could have been preserved. Fingerprints were not collected from anywhere in the bedroom or from the breaker box, which was the site where electric power to the house was cut (T ) Reports made at the time by investigators do not note any effort to collect fingerprints or search for hairs in the bedroom (T. 327.) In fact, while Hughes described at trial a tepid effort to dust a few doorknobs, not a single fingerprint or hair sample was lifted from the entire house (T ) In a report written over a year later, and just prior to trial, Hughes claimed that he had searched for hair to verify Patty s account of being pulled from bed by her hair, but no quantities of hair were discovered. 11 Contemporaneous records made at the time of the investigation do not support this assertion; no written records indicate that any such search was conducted (T ) At trial, however, Hughes claimed that he saw hairs embedded in the bedroom carpet, but they appeared to have been there for a long period of time (T. 324.) Mary O Roark, Patty s friend and neighbor, cleaned the bedroom after the Sheriff s Office released the crime scene. 11 Memorandum from Kevin Hughes to Tom Williams regarding Prewitt Crime Scene Search (undated, but at trial Hughes confirms that it was written the week before trial in April 1985 (T. 326.)), attached as Exhibit C. 6

7 O Roark testified at trial that she had vacuumed hair off the bedroom floor (T. 551.) Some footprints at the scene were not analyzed despite later testimony from the sheriff at a preliminary hearing that many of these prints were present near the Prewitt home. 12 The lack of thorough evidence collection at the crime scene is further demonstrated by the way in which a shell casing from the apparent murder weapon was discovered. Roughly eleven hours after the crime scene had been secured, a detective found it only because it fell out of a wicker loveseat that he sat on in the bedroom (T ) The loveseat was just four feet from the bed where Bill was killed. Instead of a thorough investigation of the crime scene, Hughes, in the early moments of the investigation, collected Bill Prewitt s life insurance policy, which listed Patty, his wife, as the beneficiary, as well as over a dozen Alfred Hitchcock mystery novels. In a deposition three months later, Hughes stated that he had taken the books because [o]n the back of one of the books there was an advertisement for another book, another novel of some kind that said something to the effect of how to commit the perfect murder. 13 It is noteworthy that the investigators looked to fictional material for answers while failing to collect concrete evidence at the 12 Transcript of Preliminary Hearing at 43, Missouri v. Prewitt, No. CR684-84F (Mo. Cir. Ct. Apr. 6, 1984). 13 Transcript of Deposition of Kevin Hughes at 17, State v. Prewitt, No. CV F (Mo. Cir. Ct. May 25, 1984). 7

8 crime scene. The focus on the mystery novels is indicative of the investigators tunnel vision and their related failure to preserve evidence of an intruder. With this bias so firmly in place, almost all of the leads and evidence pursued were those that seemed to confirm their foregone conclusion of Patty Prewitt s guilt. These crucial decisions prevented Prewitt from the legal right of a presumption of innocence, a right that essentially disappeared as soon as the lead detective began his investigation. Exculpatory evidence in the Prewitt case was ignored or explained away as immaterial. Ambiguous evidence was interpreted as confirmation of Patty s guilt. Deputy Rusher conducted interviews with the Prewitt children on the first day of the investigation. Sarah Prewitt, age 12, and the oldest child present in the home at the time of the murder, described being awoken in her upstairs bedroom by her mother that morning. 14 Her mother told her that there had been a fire and Sarah rushed downstairs. 15 While Sarah was waiting at the foot of the stairs, she heard, according to Rusher s record of the interview, a noise coming from the basement that sounded like rattling or someone banging on tin. 16 Sarah also shared that she thought her dad was downstairs because she saw a light coming from beneath the 14 Doug Rusher, Johnson Cty. Sheriff s Office Supplementary Report, Complaint No , Interview with Sarah Prewitt (Feb. 18, 1984), attached as Exhibit D. 15 Id. 16 Id. 8

9 basement door. 17 Because power to the house had been cut, the light indicates that someone was in the basement with a flashlight. There is no record of any subsequent search of the basement as a result of Sarah s comments. In his closing argument, the prosecutor dismissed Sarah s account since it was given after being in the custody of her mother, implying, of course, that Patty had pressured her daughter to make the comment (T. 698.) Investigators likely dismissed Sarah s account from the outset. Additionally, a Prewitt neighbor, Ethel Juanita Stephens, testified in a hearing for a new trial that she spoke with the sheriff within a day or two after the murder to tell him that she had seen a suspicious vehicle on the desolate road facing the Prewitt home approximately two hours before the murder took place (T ) There is no indication that the Sheriff s Office conducted any investigation based on this information, nor was this information shared with the defense. The sheriff later stated that he did not recollect receiving such information, even though the investigative records include a lead related to a car on the road at the time of the murder (T. 732.) 18 It is not clear if this lead is related to 17 Id. 18 Missouri Rural Crime Squad Complaint No Lead Assignment at 2, attached as Exhibit E. 9

10 Stephens s report, but this lead was marked in investigators records as void not issued. 19 On Sunday, February 19, the day after Bill Prewitt was murdered, Kevin Hughes convened the Rural Missouri Major Case Squad, as is common in rural counties with relatively small police forces. Approximately twenty-five officers from law enforcement offices across west central Missouri met for an initial briefing on the case from Johnson County Sheriff Charles Norman and from Hughes. In his handwritten notes of that initial meeting, the Officer in Charge of the Major Case Squad, Sheriff Paul Johnson noted [t]he victim s wife Patricia Ann Prewitt was a likely suspect[.] 20 The notes do not indicate discussion of other suspects at this critical investigative juncture. This meeting is described further in a personal memoir-style account of the case and trial authored by the prosecutor, first copyrighted in 1987 and published in According to the prosecutor s account of this meeting, Sheriff Norman wanted every fact considered on its own merit. Hughes had successfully set a different effort in motion. The facts would now be reconciled to fit the Hughes theory. The investigation at that moment took a definite and direct course toward Patty Prewitt. 21 As a result, according to 19 Id. 20 Memorandum from Paul Johnson, Officer in Charge, Rural Mo. Major Case Squad (Feb , 1984), attached as Exhibit F. 21 Tom R. Williams & Nan Cocke, PRACTICE TO DECEIVE 62 (2016). 10

11 the prosecutor, Hughes s soldiers set out like a swarm of scandal sheet reporters, intent on digging up dirt. 22 At a time when critical physical evidence still remained uncollected and leads about an intruder uninvestigated, records indicate that the efforts of the Major Case Squad focused primarily on information about Patty s extramarital affairs while she and Bill had been separated, and Bill s life insurance coverage. Officers conducted numerous interviews to discuss second or third-hand accounts of Patty s past affairs. 23 By that Sunday, at least five individuals shared rumors that Patty had boyfriends and/or was a flirt in response to investigators questions. 24 Such single-minded fixation on Patty and rumors of years-old affairs deterred law enforcement from following leads that would identify an alternative suspect. Three days after the murder, on February 21, as critical latent fingerprint evidence sat uncollected from both the house and the basement, investigators recovered a gun believed to be owned by the Prewitts from a pond on their 22 Id. at Memorandum from T. Charrette and D.S. Stewart, Sheriffs, Johnson Cty. Sheriff s Office (Feb. 19, 1984) (lead number 10, Suzan Brown interview notes); Memorandum from Jefferson and Carroll, Sheriffs, Johnson Cty. Sheriff s Office (Feb. 19, 1984) (lead number 7, Billy Gunn interview notes); Memorandum from Jefferson and Carroll, Sheriffs, Johnson Cty. Sheriff s Office (Feb. 19, 1984) (lead number 23, Harmon Randolph interview notes); Memorandum from Frank Walker and Robert Scott, Sheriffs, Johnson Cty. Sheriff s Office (Feb. 19, 1984) (lead number 11, Paul Martin Kluz interview notes); Memorandum from Sammy L. Watson and Tony Zink, Sheriffs, Johnson Cty. Sheriff s Office (Feb. 19, 1984) (lead number 8, Robert G. Wolfe interview notes), attached as Exhibit G. 24 Id. 11

12 property and discovered footprints nearby that allegedly matched Patty s boots. The prints cannot be placed within any timeframe related to the death of Mr. Prewitt, nor is it unusual to find a person s footprints on their own property, but investigators were lost in the grip of tunnel vision. Patty was arrested on February 22. The Trial The State s case relied on the absence of evidence of an intruder combined with attacks on Patty s credibility. Of course, evidence that would exculpate Patty was not available at trial because investigators failed to collect it. In his closing, the prosecutor stated, There s not one shred of evidence, not one shred of evidence other than Mrs. Prewitt s testimony that refutes [that Patty committed the murder] (T. 661.) In effect, the prosecutor relied on the result of an inadequate and incomplete investigation to convict Patty. Because Patty did not retain a lawyer until after she was arrested, it was not possible for her attorney to conduct a defense investigation in the crucial early days after Bill s murder. The State repeatedly emphasized the absence of evidence of an intruder on the Prewitt property and mischaracterized the police investigation as including a complete and through examination of the house from top to bottom [that] was conducted by the officers (T. 134.) In his closing, the prosecutor cited the lack of vehicle tracks from an intruder s car and the absence of shoeprints, other than 12

13 those the State alleged matched Patty s boots where the alleged murder weapon was found, to demonstrate that Patty s account was implausible (T. 661, 663.) By neglecting to preserve and recover evidence, the investigators in the case created a situation in which Mrs. Prewitt s account could not be corroborated. The defense s theory of the case, besides no proof that Patty did this horrible crime, was that there had been an assailant in the house who committed the murder of Bill and the assault on Patty. Patty testified at the trial. She told the jury that Bill and her went out with their longtime friends for dinner and video games on the night of the murder (T. 600.) Patty and Bill returned home late and Bill went to bed after checking on the kids (T. 602.) Patty tidied up the kitchen and living room and then went to bed herself (T. 602.) She testified that she had awakened to what she initially thought was thunder (T. 603.) In darkness, an unknown assailant pulled her from her bed by her hair (T. 603, 623.) The intruder put a knife to her throat and attempted to rape her (T ) He left the room and Patty then checked on Bill and realized he had been shot (T. 605.) She attempted to turn on the lights and to make a call for help but neither the electricity nor the phone worked (T , 631.) Believing the assailant was still in the house, Patty collected the children (T ) One of the Prewitt children, Sarah, testified that as she was leaving the house she heard a sound coming from basement and saw a moving flashlight coming from below basement door (T. 557.) A second Prewitt child, Carrie, 13

14 testified that she too had heard noises coming from the basement (T. 569.) Patty got the children out of the house and into a car (T. 607.) She then went back into the house to check on Bill (T.607.) Finding Bill dead, she went back to the children and drove to a neighbor s house to seek help (T. 608.). The prosecution s response to Patty s account of the evening was to attack her credibility based on her past extramarital affairs that had occurred over five years prior to Bill s murder and during a time when Patty and Bill were estranged. During a trip to Sedalia in 1974, Patty was raped by three men (T. 582.) Following this traumatic event, Bill grew more distant from Patty, they slept in separate houses, and Patty began to see other men (T ) By 1980, the Prewitts had reconciled and Patty did not have any additional extramarital relationships (T. 583, 593.) Nonetheless, the prosecution used Patty s past affairs and insinuations about her promiscuity to move the jury. Lead investigator Hughes described statements purportedly made by Patty while in custody for 16 hours two days after the murder. Hughes told the jury that Prewitt, in this unrecorded interview, said a number of provocative and sexually suggestive statements including that she had extramarital relations at least once a day and sometimes three or four times a day, that her fire burns hotter than most people, that she would not tell the truth unless caught red-handed (T. 297, 299.) Hughes claimed she asked him to take her out to dinner before she went to prison 14

15 (T. 300.) Patty has always denied making these statements. Missouri law now requires the recording of custodial interviews in such cases but, unfortunately, in 1984 such protections were not in place. Patty s neck wounds were dismissed as self-inflicted based on highly speculative testimony from a pathologist with a history of professional errors. 25 Dr. James Bridgens, the second pathologist brought in by the State after the original pathologist failed to notice the second gunshot wound in the victim s head, testified based only on his observation of a photograph of the wounds on Mrs. Prewitt s neck, that they were characteristic of self-inflicted hesitation marks (T. 477.) The defense failed to call a forensic expert to counter Bridgens s claim. The State called Ricky Mitts, with whom Patty had a relationship six years earlier, to testify that Patty offered him $10,000 to murder Bill Prewitt in the summer of 1982 (T ) Remarkably Mitts admitted in his testimony that after speaking to the police, he approached Patty and offered to marry her so he would not have to testify against her (T. 447.) Patty was repulsed by Mitts and found this suggestion outrageous and further evidence of how crazy Ricky Mitts was (T. 590.) In the prosecutor s personal account, he wrote that Mitts was in love with Patty, proficient with the murder weapon, and late for work on the morning of the 25 See, e.g., Bill Norton, A Difference of Opinion, Kansas City Star Magazine, Jan. 24, 1988, at 16-17, attached as Exhibit H. 15

16 murder; motive, means and opportunity the classic formula. [ ] Couldn t he have been, in fact, the intruder police never really looked for? 26 Despite what was so clear to the prosecutor, the investigators never pursued Mitts as a suspect. In his closing, Prosecutor Tom Williams further attacked Patty s character, arguing she defiled [Bill s] home with those lovers when the children were there and abandoned her duties as a mother (T. 698.) She disregarded her marital vows and the noticeable obligations of motherhood. She pursued one sleazy affair after another, one, two at a time (T. 659.) He instructed the jury that [t]he dignity of the institution of marriage required a conviction (T. 701.) With that moral imperative given by the prosecutor, the jury was swayed and delivered a guilty verdict. Argument Mo. Rev. Stat provides, in pertinent part, that any person in the custody of the department of corrections claiming that forensic DNA testing will demonstrate the person s innocence of the crime for which the person is in custody may file a postconviction motion in the sentencing court seeking such testing. Mo. Rev. Stat Such a motion must allege facts under oath demonstrating that: (1) there is evidence upon which DNA testing can be conducted; and 26 Williams, supra note 21 at

17 (2) the evidence was secured in relation to the crime; and (3) the evidence was not previously tested because the technology for testing was not reasonably available to the movant at the time of trial; and (4) identity was an issue in the trial; and (5) a reasonable probability exists that the movant would not have been convicted if exculpatory results had been obtained through the requested DNA testing. Mo. Stat (2). The evidence submitted for testing in this case meets all of these requirements. Therefore, Prewitt is entitled to DNA testing. 1. There is evidence upon which DNA testing can be conducted. All physical evidence mentioned above and referenced herein is believed to be available for testing. In or around April 2017, Johnson County Sherriff s Office Lieutenant and Evidence Officer Andrew Gobber responded to a media inquiry by NBC Peacock Productions with a list of evidence currently held by the Sheriff s Office The evidence was secured in relation to the crime. 27 Letter from Lt. Andy Gobber, Johnson Cty. Sheriff s Office, to Derrick Loris, NBC Universal Peacock Productions, attached as Exhibit I. 17

18 All physical evidence mentioned above and referenced herein was recovered by then Johnson County Deputy Sheriff and lead investigator on the Prewitt case Kevin Hughes pursuant to the homicide investigation into the death of William Prewitt. 3. The evidence was not previously tested because the technology for testing was not reasonably available to the movant at the time of trial. At the time of Mrs. Prewitt s arrest in 1984 and trial in 1985, DNA analysis of physical evidence was not yet implemented in Missouri. Early forms of Restriction Fragment Length Polymorphism ( RFLP ) DNA testing did not become recognized and admissible in Missouri until 1991, see State v. Davis, 814 S.W.2d 593 (Mo.1991), and even that rudimentary form of testing was not reasonably available to defendants. While the now more commonly used Short- Tandem Repeat ( STR ) DNA tests were developed in 1996 and 1997, even those early forms of STR testing were not readily available in that time frame. See e.g., John Butler, Fundamentals of Forensic DNA Typing 70 (2009) ( As in the O.J. Simpson case[], conventional RFLP markers were used to match the sample of President Clinton s blood to the semen stain on Monica Lewinsky s dress. At the time these samples were analyzed in the FBI Laboratory (early August 1998), STR typing methods were being validated but were not yet in routine use within the FBI s DNA Analysis Unit. ) (emphasis added). Indeed, authoritative sources, including the 18

19 leading federal commission on DNA testing, indicate that STR testing was not useful or even relied upon until well after that time. In 1998, United States Attorney General Janet Reno requested that the National Institute of Justice establish a National Commission on the Future of DNA Evidence to recommend ways that DNA technology could be used to enhance justice in the postconviction appeals process. US. Dept. of Justice, National Commission on the Future of DNA Evidence, Postconviction DNA Testing: Recommendations for Handling Requests, iii and v (1999). The Commission recounted the history of DNA technology up to that point, and confirms that STR testing was not reasonably available at the time of Mrs. Prewitt s trial. The study reported in 1999 that in in the near future, DNA testing at a number of STR locations will likely replace RFLP [Restriction Fragment Length Polymorphism] and earlier PCR [Polymerase Chain Reaction]- based tests in most laboratories throughout the United States and the world. Id. at 28. RFLP testing generally requires a DNA sample that is not degraded (and broken into smaller fragments), from 100,000 or more cells (e. g. a dime sized or larger saturated blood-stain). Id. at 26. Modern STR testing utilizes 13 core loci (or genetic locations) that can be loaded into the DNA database. See FBI, Codis Brochure, available at Use of the 13 core loci allows for greater power of discrimination (ability to identify an 19

20 individual), far greater than earlier STR technology. Id. Earlier STR technology included just three loci, which results in match probabilities millions of times less discriminating than modern STRs (which use at a minimum the 13 core loci, plus up to an additional three loci.) This important development is clear from the timeline provided by John M. Butler in his seminal text, Fundamentals of Forensic DNA Typing (2010). A wellrespected scientist by both prosecutors and defense alike, Butler provides a timeline of DNA development which indicates that the CODIS database was not launched until 1998, which required tests to be performed at 13, rather than 3 or 4 loci. Id. at 9, available at In fact, the 13 loci were not even identified until 1997, and the tests which included fewer loci were not terminated until Id. As a result, it was impossible for Mrs. Prewitt to have requested testing at the time of her trial in 1985 the 13 loci profiles to be uploaded to CODIS was available, at earliest, in With regard to the pajamas, telephone cord, and knife, the sensitive form of PCR STR testing was also not available at the time of Mrs. Prewitt s trial. While modern STR testing might produce probative results, additional, more advanced techniques might also be needed, such as modern, advanced STR technology powerful enough to obtain a profile from Touch DNA. Touch-DNA generally 20

21 refers to skin cells left behind on an item. Touch-DNA was famously used in 2008 to exclude the Ramsey family in the death of their daughter, JonBenet. ABC News and USA Today reported on September 22, 2008, that [t]he success of the little-known method in her case is triggering requests for the test from law enforcement officials seeking similar breakthroughs in unsolved crimes. Private and state-run laboratories report increases of up to 20% in use of the technique called touch DNA. Kevin Johnson, Touch DNA Offers Hope in Cold Investigations, USA TODAY, September 22, 2008, available at An article published by the Rocky Mountain News on July 9, 2008, reports that Touch- DNA technology was new to the United States, though well established in Europe. Todd Hartman & Lisa Ryckman, New to U.S., Touch DNA Also Exonerated Masters, July 9, These news sources indicate that many law enforcement agencies, let alone defendants like Mrs. Prewitt, were not yet familiar with the capability of this new technology as late as 2008, and certainly not in Identity was an issue at trial. Prewitt has always maintained that she is innocent and that an unknown perpetrator committed the crime for which she has been convicted. (T. 603.) Therefore, identity was clearly an issue at trial, as required by (4). See State v. Ruff, 256 S.W.3d 55, 57 (Mo. 2008) ( The phrase identity at issue 21

22 encompasses mistaken identity, but it also includes all cases in which the defendant claims that he did not commit the acts alleged ). 5. A reasonable probability exists that Prewitt would not have been convicted if exculpatory results had been obtained through DNA testing. Through DNA testing on Mrs. Prewitt s clothing and a few other items from the scene, a third-party DNA profile could be developed. Because the state repeatedly attacked Prewitt's account of an intruder, presence of a foreign DNA profile on these items proximate to the murder would corroborate Mrs. Prewitt s account and exculpate her. The profile of an unknown male developed on the pajamas, phone and cord, and knives would corroborate Patty s account of the events on the night of the murder. It would also restore Patty s credibility in the mind of the jury after being vigorously and unfairly attacked during the State s case. Given the State s emphasis on the lack of corroboration of Mrs. Prewitt s account of an intruder, there is a reasonable probability that a jury would not have convicted her if exculpatory DNA evidence was offered to show a third party present in the Prewitt home. Additionally, if DNA from the physical evidence secured in relation to the crime were to match a profile in the Combined DNA Index System (CODIS) national database or the state database, DNA testing could prove Mrs. Prewitt s innocence and identify the actual perpetrator. 22

23 i. A DNA profile developed from Prewitt s pajamas or the foreign hairs discovered on the pajamas could provide exculpating evidence. Mrs. Prewitt testified that the intruder attempted to rape her (T. 624.) In his closing, the prosecutor dismissed Prewitt s account as incredible (T. 659.) The prosecutor went on to say that there s not one shred of evidence, not one shred of evidence before you other than Mrs. Prewitt s testimony that refutes the prosecution s theory that Patty lied about the intruder and murdered Bill (T. 661.) If Patty s pajamas contain a third party s DNA, either through touch DNA, ejaculate, or the foreign hairs, this would certainly be evidence to corroborate Patty s account and bolster her credibility. ii. A DNA profile developed from the telephone and telephone cords could provide exculpating evidence. In his closing, the prosecutor told that jury that Patty cut the cord on the phone line (T. 660.) The DNA profile of an unknown male would corroborate Patty s account and prove that an intruder entered the Prewitt home that night. iii. A DNA profile developed from the knives collected could provide exculpating evidence. In his closing, the prosecutor told the jury that Patty inflicted the hesitation marks on her throat (T. 660.) In his testimony, Dr. James Bridgens describes Patty s wounds as characteristic of self-inflicted hesitation 23

24 wounds, not consistent with wounds to be expected from an attempted rapist wielding a knife in total darkness (T. 477.) The knives recovered from the crime scene may have DNA from the intruder and prove that Patty did not wield the knife on herself. iv. A DNA profile developed from the dirty brown towel could provide exculpating evidence. According to investigators records, the brown towel was found near the pond where the murder weapon was recovered. 28 If the assailant used the towel, it could contain DNA evidence that would corroborate Patty s account of being attacked. v. Favorable DNA results would be sufficient to overcome the evidence presented by the State at trial. Any exculpatory result from DNA testing would be sufficient to cast substantial doubt on the State s evidence at trial and would provide a reasonable probability that a jury would not have convicted Patty if such corroborating results were presented during trial. Indeed, if testing on multiple items of evidence indicated a single unknown male source, a jury would logically have concluded that Patty was telling the truth about Bill being murdered by an intruder. 28 Ex. A at 4. 24

25 CONCLUSION WHEREFORE, for the foregoing reasons, counsel for Patty Prewitt respectfully moves this Court to: 1. Compel the State to show cause as to why DNA testing should not occur pursuant to Mo. Stat ; 2. Order DNA testing of the items set forth above; 3. Order that DNA profiles obtained from the above listed items be uploaded into CODIS; 4. In the alternative, order a hearing regarding why DNA testing should occur pursuant to Mo. Stat Respectfully Submitted, /s/ Tricia J. Bushnell Tricia J. Bushnell, #66818 Midwest Innocence Project 3619 Broadway Blvd., Suite 2 Kansas City, MO (816) (888) [Facsimile] tbushnell@themip.org Brian Reichart* 91 Manomet Ave. Hull, MA (312) bsr22@law.georgetown.edu * Pro Hac Vice Pending 25

26 CERTIFICATE REGARDING SERVICE I hereby certify that a true and correct copy of this motion filed in the Circuit Court of Pettis County, Missouri, Division One will be sent via Post to Robert W. Russell, Prosecuting Attorney, Johnson County Justice Center, 101 W. Market St., Warrensburg, MO on November 27, /s/ Tricia J. Bushnell Tricia J. Bushnell 26

27 Exhibit List Exhibit A: Johnson Cty. Sheriff s Department Property Records, Case No (Feb 18-21, 1984) Exhibit B: Doug Rusher, Johnson Cty. Sheriff s Office, Offense/Incident Report, Complaint No (Feb. 18, 1984) Exhibit C: Memorandum from Kevin Hughes to Tom Williams regarding Prewitt Crime Scene Search (Undated) Exhibit D: Doug Rusher, Johnson Cty. Sheriff s Office Supplementary Report, Complaint No , Interview with Sarah Prewitt (Feb. 18, 1984) Exhibit E: Missouri Rural Crime Squad Complaint No Lead Assignment at 2. Exhibit F: Memorandum from Paul Johnson, Officer in Charge, Rural Mo. Major Case Squad (Feb , 1984), attached as Exhibit F. Exhibit G: Memorandum from T. Charrette and D.S. Stewart, Sheriffs, Johnson Cty. Sheriff s Office (Feb. 19, 1984) (lead number 10, Suzan Brown interview notes); Memorandum from Jefferson and Carroll, Sheriffs, Johnson Cty. Sheriff s Office (Feb. 19, 1984) (lead number 7, Billy Gunn interview notes); Memorandum from Jefferson and Carroll, Sheriffs, Johnson Cty. Sheriff s Office (Feb. 19, 1984) (lead number 23, Harmon Randolph interview notes); Memorandum from Frank Walker and Robert Scott, Sheriffs, Johnson Cty. Sheriff s Office (Feb. 19, 1984) (lead number 11, Paul Martin Kluz interview notes); Memorandum from Sammy L. Watson and Tony Zink, Sheriffs, Johnson Cty. Sheriff s Office (Feb. 19, 1984) (lead number 8, Robert G. Wolfe interview notes) Exhibit H: Bill Norton, A Difference of Opinion, Kansas City Star Magazine, Jan. 24, Exhibit I: Letter from Lt. Andy Gobber, Johnson Cty. Sheriff s Office, to Derrick Loris, NBC Universal Peacock Productions.