Chicago Tribune

Death Row inmate wins resentencing
Judge questions bite-mark evidence he applied in 1994
By Flynn McRoberts; Chicago Tribune
December 24, 2004

A decade after sending a man to Death Row, an Arizona judge on Thursday granted him a new sentencing hearing based on inconclusive DNA tests and questions about the bite-mark evidence used to convict him.

On his last day before retiring from the bench, Yuma County Judge Thomas Thode ruled that the new DNA tests and other evidence were "insufficient to exonerate" Bobby Lee Tankersley of the gruesome rape and murder of a 65-year-old woman.

But the judge's ruling questioned the bite-mark evidence he had used in 1994 to sentence Tankersley to death for the slaying three years earlier of Thelma Younkin, Tankersley's neighbor in a low-budget motel along what then was Yuma's Skid Row.

"The DNA evidence standing alone does little if anything to exculpate the defendant from his guilt, but the inconclusive DNA as to critical bite marks may be argued to diminish the appearance of extreme brutality," Thode wrote. "The new DNA evidence also raises other questions as to what happened the night of the murder."

During a recent hearing held over several days, DNA analysts disagreed over whether they could exclude Tankersley as a contributor to genetic material swabbed from marks on Younkin's body.

A jury convicted Tankersley in 1993 of raping Younkin and strangling her with the oxygen tubing that helped her breathe. At the trial, a forensic dentist testified he could match Tankersley's teeth to many purported bite marks on her body.

As Thode noted in his ruling Thursday: "The bite marks were a prime factor in this court's previous decision to exact the ultimate penalty."

But it later became clear that the same dentist, Dr. Raymond Rawson, helped send an innocent man, Ray Krone, to Arizona's Death Row. A former postal worker, Krone spent more than a decade in prison before DNA testing proved Rawson wrong--connecting another man to the crime and exonerating Krone.

A Tribune series earlier this year, "Forensics Under the Microscope," showed that DNA tests such as those in the Krone case have revealed that even leading bite-mark experts make false matches.

Given the similarities in Rawson's testimony at the trials of Krone and Tankersley, prosecutors asked the Arizona Supreme Court to order new DNA tests in the Tankersley case after Krone was released in 2002.

During the recent hearing, Thode heard competing interpretations of those test results. The tests were ambiguous because they involved mixtures of multiple genetic profiles.

At the center of the disagreement was how confident forensic analysts should be in linking a suspect to a crime when small amounts of DNA from such mixtures are involved.

In Thursday's ruling, the judge also said he had re-examined evidence of Tankersley's alcoholism and blackouts presented at a hearing several years ago.

In ordering the new sentencing hearing, Thode wrote: "Is the evidence of such nature and effect that it would change the sentence? Were this sentence other than death, the court would be inclined to think not. However, in this case we have imposed the ultimate punishment under our Constitution and traditional moral values."

John Todd, the assistant Arizona attorney general who presented the state's case, said the judge had "correctly found that the new evidence did not warrant a new trial, [but] that he felt more comfortable having a jury of Mr. Tankersley's peers impose the appropriate sentence."

Todd said the defense could immediately petition to review the judge's finding. Thode set a hearing for Jan. 19 to consider scheduling and other issues for the resentencing hearing--in front of a new judge, because Thode retired Thursday.

If Tankersley is resentenced to death, he could appeal again to the Arizona Supreme Court; if sentenced to life in prison, he would be eligible for parole after 25 years and would get credit for time served, according to Todd.

Tankersley's lead attorney, Jennifer Sparks, said she was "somewhat disappointed" by the judge's ruling.

"We had hoped he would go further and order a new trial, which we thought the evidence justified," she said.

For Tankersley's father, Leo, the news was not as good as he had hoped, but "that's better than nothing," he said.

"The one thing I always figured was the evidence they used was that bite [mark]--and that's nothing," Leo Tankersley added. "I never thought they had enough evidence to convict him, so I'm glad he's getting a resentencing."

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