James J. Kilpatrick

Four months ago a panel of the U.S. Court of Appeals for the 11th Circuit spoke emphatically -- and unanimously -- against further litigation on Grayson's behalf. Judge Frank Mays Hull began by quoting the trial judge: "The court cannot think of a case it has seen, heard, or even read, that would equal the cruelty shown in this case by the defendant to Mrs. Orr."

Judge Hull summarized the case: "Grayson confessed several times, testified at trial about the murder and his role in it, and does not contend that he was denied a fair trial. The non-biological evidence against him was and is overwhelming. For example, Grayson admitted that he and Kennedy planned the robbery a week before; the victim's wedding rings were found in Grayson's wallet; Grayson's bloody shirt was found in the woods near his house; and Grayson was discovered hiding in the woods after his mother told him of Mrs. Orr's death."

Judge Hull emphasized that his panel was not closing the door on DNA evidence in post-conviction proceedings: "Our decision here in no way demeans the value of DNA testing or suggests that it should not be made available post-conviction; it simply holds that Grayson has asserted no constitutional right to it under the factual circumstances of the case."

In the prolonged post-conviction proceedings, said Judge Hull, Grayson never sought DNA testing of the blood and semen evidence until five years ago. Even now, Grayson does not contend that he is actually innocent, but only that he does not know whether he is guilty or innocent.

"The government has a strong interest in the finality of duly adjudicated criminal judgments. Here, Grayson has enjoyed extensive judicial process over the years; indeed, it has been over 20 years since his conviction, and he now seeks to forestall his death sentence by seeking further process with minimal probable value."

Judge Kilpatrick, meaning me, concurs. The high court ought to hold up review of DNA testing until a better case comes along -- as one surely will.

James J. Kilpatrick

James J. Kilpatrick has been reporter, editor, columnist, commentator, and briefly an adjunct professor of journalism.

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