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    Key evidence lost in death penalty case

    By AMY HERDY

    © St. Petersburg Times, published April 14, 2001


    TAMPA -- Before he signed the death warrant for Wayne Tompkins, Gov. Jeb Bush wanted to know if there was any DNA evidence that could be tested.

    No, he was told by officials from the Hillsborough State Attorney's Office, which prosecuted Tompkins for the 1983 murder of a 15-year-old Tampa girl.

    Bush signed the warrant March 22, then learned the State Attorney's Office had not told the entire truth: There had been evidence suitable for DNA testing, but it no longer existed.

    It had been lost.

    Now attorneys for Tompkins, who has steadfastly maintained he is innocent, plan to ask for a stay of his May 1 execution and demand a new trial based on the lost hair and what they claim are other inconsistencies in the case.

    "The Governor has gone out on a limb and signed this warrant based on their misrepresentation," said Martin McClain, an attorney with Capital Collateral Regional Counsel, the state agency that represents death row inmates. "I think it's outrageous."

    McClain is angry that during a hearing Wednesday before Circuit Judge Daniel L. Perry, prosecutors did not disclose the contents of an April 6 letter sent to State Attorney Mark Ober by the governor's office.

    The letter read, in part, "The governor has made it his policy that he will sign no death warrant with respect to an inmate until DNA evidence that could exonerate that inmate has been tested."

    Before learning the DNA evidence in the case had been lost, or that the governor was calling for DNA testing, Judge Perry denied the defense's motion to test it, saying the request was too late and the "testing would not prove or disprove any material issues in this case."

    Only after Perry had ruled did prosecutors reveal that the evidence had been lost.

    Ober could not be reached for comment Friday. Prosecutor Shirley Williams, reached at home Friday, said, "There is some missing evidence. The judge addressed it in his order." As to how the evidence was lost, Williams said, "It was in the custody of the Tampa Police Department."

    Officials with TPD could not be reached Friday.

    The evidence in question, several hairs, was found with the body of 15-year-old Lisa DeCarr on June 5, 1984, more than a year after she had been reported missing by her mother, Barbara DeCarr.

    Her body had been buried underneath her mother's house. The case was bizarre from the start. At the time, Tompkins, a roofer, lived with Mrs. DeCarr and her three children at the house at 1225 E Osborne Ave. in Tampa.

    In the missing person police report, Mrs. DeCarr said she had last seen Lisa at home on March 24, 1983, and that the girl was wearing blue jeans and a maroon shirt.

    During the trial, Mrs. DeCarr said she had last seen Lisa that morning at 9 a.m., and the girl had been wearing a pink bathrobe, the same one found wrapped around her body.

    After the girl had been missing for over a year, Mrs. DeCarr told investigators a psychic had indicated the body would be found under her house.

    A jailhouse informant was set to testify that Tompkins had confessed to him about murdering Lisa. The informant met Tompkins while Tompkins was in jail for kidnapping and raping two convenience store clerks. However, the informant committed suicide before the DeCarr trial by swallowing cyanide.

    The case left against Tompkins was "totally circumstantial," prosecutors said at the time, and was based on three people: Mrs. DeCarr; Kathy Stevens, a friend of Lisa's; and Kenneth Turco, another jailhouse informant who stepped forward after the other informant's suicide.

    Mrs. DeCarr said Tompkins was the last person to have seen Lisa.

    In what was probably the most damning testimony, Stevens said that the morning Lisa was reported missing, Stevens had seen her struggling with Tompkins at the Osborne home.

    McClain, Tompkins' current attorney, said Stevens waited for two years after Lisa was initially reported missing before she came forward with that information, and she did so in an attempt to bargain with prosecutors for Stevens' boyfriend, who was in jail on unrelated charges.

    Arrest records show that in 1986, one year after the September 1985 trial in which Tompkins was convicted Stevens was charged with perjury. The disposition of that case was not available Friday, and it is not clear if it was connected to Tompkins' case.

    Two weeks after testifying against Tompkins, Turco, the second informant, was allowed to withdraw a guilty plea in an unrelated case, and prosecutors dropped their case against him. He was then released.

    As for the missing hairs, records show that the last person to have contact with them was Tampa homicide Detective Gene Black.

    At the hearing Wednesday in front of Judge Perry, Black testified that although the evidence log dated June 1990 bore his name and identification number, he was not the person who signed it out.

    Although the hairs may not prove Tompkins' innocence, McClain said, he deserves more time so a search for the hairs can be conducted. "It's been years," he said. "What's one more month? Look what happened to Frank Lee Smith."

    Smith died of cancer on Jan. 30, 2000, while on death row. Ten and a half months later, posthumous DNA testing proved his innocence.

    - Times researcher John Martin contributed to this report.

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