Associated Press

Man whose case inspired DNA law tries for new trial

By KEVIN O'HANLON / The Associated Press

March 28, 2005

The man whose case inspired passage of Nebraska's DNA Testing Act four years ago is trying to use the law to get his murder conviction set aside. The Nebraska Supreme Court will hear an appeal April 5 from Mohamed El-Tabech, who was convicted of the 1984 murder of his wife, Lynn El-Tabech, in their Lincoln home. He is serving a life sentence.

The Legislature passed the DNA law in 2001 after the Nebraska Supreme Court rejected El-Tabech's argument that the state should pay for DNA tests on evidence in the case to see if the results could prove his innocence. The DNA tests did not exist when El-Tabech was convicted.

The high court cited Nebraska's post-conviction law, which says new evidence that purportedly would exonerate a convicted murderer must be introduced on appeal within three years after conviction.

The court said no procedure was in place to order the state to conduct DNA tests.

The night of the murder, neighbors saw El-Tabech leave his north Lincoln home and return about 10 minutes later.

El-Tabech maintained that he went out to buy ice cream and returned to find his wife dead.

El-Tabech called 911 after returning home and was sitting on the floor and rocking back and forth when paramedics arrived. He told them that he would kill the person responsible for his wife's death.

The DNA testing law requires the state to test DNA evidence if it is likely to produce so-called "exculpatory evidence" the someone else committed the crime.

El-Tabech argues that a hair found on Lynn El-Tabech's clothing showed it did not belong to him or his wife.

But Lancaster County District Judge Steven Burns denied his request for the DNA test, saying he did not believe El-Tabech's jury would have returned a different verdict had they known about the hair.

"There is very little other evidence appearing at trial that suggests another person committed the crime," Burns said.

Assistant Attorney General James Smith agreed.

"The newly discovered DNA evidence submitted by El-Tabech is a mixed bag of good and bad, which, at its best, consists of a single unidentified hair,' Smith said. "One hair of dubious reliability that has been DNA tested 18 years after the original trial does not prove or produce a substantially different result in the totality of what was a well-prosecuted and ably-defended trial.

"To warrant a new trial, the trial court must determine that newly discovered exculpatory evidence ... must be of such a nature that if it had been offered and admitted at the former trial, it probably would have produced a substantially different result," Smith said.

DNA, or deoxyribonucleic acid, contains genetic information that is as individual as fingerprints. The process of testing DNA is expensive, routinely running into the thousands of dollars.

No Nebraska inmate has yet received a new trial or release from prison under the law.

DNA testing already has had a significant impact in Nebraska.

In 2000, DNA evidence was used to convict former Star Search comedian Vinson Champ of rapes at Lincoln's Union College and the University of Nebraska at Omaha — even though most other evidence in the cases was circumstantial.

In 1998, DNA testing also freed a Lincoln man accused in the 1995 stabbing death of University of Nebraska-Lincoln freshman Martina McMenamin of Omaha.

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