Pittsburgh Post Gazette

2nd DNA test to free man jailed in 1988 slaying
Convicted in killing at McDonald's near Kennywood

April 26, 2006
By Bill Moushey, Pittsburgh Post-Gazette

Eighteen years after Drew Whitley was imprisoned for life in the 1988 murder of McDonald's night manager Noreen Malloy, prosecutors are prepared to free the former West Mifflin man after a second round of DNA tests indicated he was not responsible for the killing.

Allegheny County Common Pleas Judge Anthony Mariani yesterday vacated Mr. Whitley's second-degree murder conviction and granted him a new trial at the request of District Attorney Stephen A. Zappala Jr.In an interview, Mr. Zappala said he will seek to have the charge dismissed at a hearing Monday because DNA tests have twice shown that hairs found in the mask worn by the killer did not belong to Mr. Whitley.

"We have results back today ... and it's not Whitley," Mr. Zappala said. "That raises a couple of possibilities, but the strongest is that there's reasonable doubt as to Whitley's responsibility for the death of Ms. Malloy."

Members of Ms. Malloy's family were told about the test results and his decision to drop the charges, Mr. Zappala said. They did not respond to requests for comment.

This is the second time that post-conviction DNA tests have cleared someone of a crime in Allegheny County. DNA tests have exonerated about 170 people across the country.
Mr. Whitley was convicted in 1989 on physical evidence and the word of two controversial witnesses. Yesterday, Mr. Zappala called the case "another example of how science has contradicted the testimony of witnesses."

Scott Coffey, Mr. Whitley's post-trial lawyer, said he spoke by telephone yesterday to Mr. Whitley, who is incarcerated at the State Correctional Institution Greensburg.

"He's flying high. He's overwhelmed and in shock," said Mr. Coffey.

Mr. Whitley was packing his belongings, Mr. Coffey said, and will be transported to the Allegheny County Jail today to await the Monday hearing before Judge Mariani, who is expected to grant the prosecutor's motion.

Mr. Coffey also was stunned by the sudden turnaround. Just last week Mr. Zappala's office filed a motion suggesting he would oppose Mr. Whitley's request for a new trial based on the first round of DNA tests this year.

For years, Allegheny County prosecutors had fought Mr. Whitley's requests for DNA tests on more than 40 hairs found in the mask and clothing worn by the man who beat and shot Ms. Malloy to death after attempting to rob her outside the McDonald's near Kennywood Park.

Last summer, after DNA testing exonerated convicted rapist Thomas Doswell, who had served 19 years in prison, Mr. Zappala said he would reconsider his interpretation of a 2003 state law that authorizes DNA tests for people convicted of major crimes.

The law says a defendant must convince a judge that DNA testing could prove actual innocence. Mr. Zappala said he previously held that if a convict could show only that DNA testing might prove conclusive, his office would oppose it. Tests can cost up to $1,000 per specimen.

Mr. Zappala also had sought to block DNA tests in Mr. Whitley's case because Mr. Whitley had a record for robbery and because two witnesses had implicated him.

Jerome Wilson, who was sitting outside the restaurant during the murder, initially told police he could not identify the masked killer but eventually said he recognized Mr. Whitley from his voice and facial features. Gary Starr, a twice-convicted murderer on death row, had his sentence reduced to life in prison after testifying that Mr. Whitley had confessed the killing to him while both were in prison.

Last September, Common Pleas Judge Walter Little, who recently turned the case over to Judge Mariani because of ill health, breathed new life into Mr. Whitley's appeals when he ordered DNA testing of the hairs found at the crime scene.

After that hearing, Mr. Whitley told reporters what he has been saying all along: "I'm an innocent man."

(Post-Gazette staff writer Bill Moushey directs the Innocence Institute of Point Park University, a partnership with the Post-Gazette in which students learn investigative reporting by researching allegations of wrongful convictions. The institute has examined the Malloy-Whitley case for five years. Mr. Moushey can be reached at bmoushey@pointpark.edu or 412-765-3164. )

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