How final is 'Final'?

James J. Kilpatrick

12/27/2006 9:00:00 PM - James J. Kilpatrick

Almost a quarter of a century has passed since Darrell Grayson was convicted of felony murder in Alabama, but the case is not yet closed. One more appeal in his behalf was filed a few weeks ago in the Supreme Court. The case presents a novel question of post-conviction evidence.

First, the facts: A little after midnight on Dec. 23, 1980, two men broke into the home of Annie Laura Orr in Montevallo, Ala., a few miles south of Birmingham. She was a widow, 86 years old, 5 feet, 3 inches tall. Within hours on Christmas Eve the intruders were identified, without question, as Darrell Grayson and Victor Kennedy.

From the record: "They entered Mrs. Orr's bedroom, where she was apparently sleeping. They subdued and beat her, striking her in the head with a blunt instrument and breaking several of her ribs, Grayson then placed a pillowcase over her head and wrapped two relatively long lengths of masking tape very tightly around her head so that when they were finished her head appeared to be that of a mummy. Then they proceeded to look for money and other valuables ...

"During their assault, they raped Mrs. Orr repeatedly. She lived through the assault of being raped, beaten, threatened, unable to see or adequately breathe, and begging her assailants not to hurt her but to take her money and leave, for a considerable period of time. She then died."

Under persistent questioning, Grayson confessed to rape and burglary and admitted his role in her death. His trial in June 1982 was marked by expert witnesses for the state and high-powered appointed counsel for the defendant. Grayson provided garbled testimony in his own behalf, mainly to the effect that he was too drunk to remember anything. A jury took only two hours to find him guilty of murder and burglary. The sentence was death by electrocution. (Kennedy, tried separately, was found guilty and executed in August 1999.)

Then followed a decade of hearings in state and federal courts, marked especially by the intervention of the Innocence Project of New York. The project's particular interest lies in DNA technology as a tool for establishing identity. Since 1989, counsel assert, "at least 187 individuals have been exonerated through the use of post-conviction DNA testing." They quote former Attorney General John Ashcroft in support of DNA evidence, and they cite as examples the exoneration of defendants in Texas and New York. In this case, tests "could definitively show that Grayson did not rape Mrs. Orr." The necessary evidence has been preserved. All that is required is an order from the Supreme Court.

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.