DNA testing ordered in case of man already executed

By Rhonda Cook
Atlanta Journal-Constitution Staff Writer

Ellis Wayne Felker

Nearly four years after his execution, Ellis Wayne Felker is becoming part of the debate over DNA evidence and capital punishment.

A Middle Georgia judge has ordered evidence in Felker's case be made available for DNA testing, a technology that did not exist when he was tried for murder 17 years ago in Houston County. 

Houston County District Attorney Kelly Burke still must approve an agreement between four news organizations, including The Atlanta Journal-Constitution, to determine how the testing and distribution of the results will be handled. The prosecutor, who was not in office when Felker was tried, said Wednesday he was satisfied with all but one component of the agreement and that problem should be worked out soon.

The evidence could be prepared for shipping this week. 

The judge's order is believed to be a first nationally for a case in which a suspect was convicted and executed for murder. DNA evidence has exonerated eight inmates across the country who were under death sentences but has not yet been used to shed light on the guilt of someone who has been put to death. 

The results of the Felker tests, if conclusive, could raise the stakes of a national discussion about the fairness and fallibility of the death penalty. One state -- Illinois -- has formally suspended executions while officials study reforms, and five others are considering whether to keep their capital punishment laws. 

Felker, professing his innocence until the end, died in the electric chair Nov. 15, 1996, for the murder of 19-year-old Evelyn Joy Ludlam, a college student and cocktail waitress. The evidence against him was largely circumstantial. The strongest| physical| evidence| -- hair the State Crime Lab said might have been Felker's -- was found on Ludlam's clothes and can now be analyzed to determine whether it actually contains his DNA.

Prosecutors conceded their case against Felker was circumstantial. They argued he was the last person known to have seen Ludlam before she disappeared in November 1981 and fibers from a blanket and her wool coat showed she had been in his house. The attack was similar, they added, to a 1976 assault for which Felker was convicted of aggravated sodomy. 

Felker had told police Ludlam came to his house twice and his leather shop once on the day authorities believe she disappeared. He said they had met the night before in a Warner Robins lounge and had talked about her working at his shop. Felker said he last saw Ludlam when she left his shop. 

During the past 10 years, DNA testing has become recognized as a technology that can unequivocally tie a suspect to evidence such as hair, tissue or bodily fluids. DNA -- deoxyribonucleic acid -- is the genetic material contained in human cells and, except for identical twins, is unique to each individual.

When Felker was tried, analysis of hair evidence was a highly subjective process in which a technician examined hairs under a microscope looking for similarities. With the advent of DNA testing, some states -- though not Georgia -- have limited the use of microscopic hair analysis in criminal trials.

The most reliable DNA test can analyze bodily fluids or hair roots and identify the source to a certainty of one in several billion. Another method, used on less substantial specimens such as hair fragments, is less precise but can determine that a sample came from either an individual or one of his maternal relatives. In the final months before Felker's execution, his lawyers tried to get a delay and the court's permission to do a DNA analysis of the hair and other evidence. The courts refused, saying the request should have been made sooner. The courts allow for such last-minute requests only when there is a new law that has not been reviewed by the federal courts or new evidence that had not been available sooner.

Felker might have won a delay if there had been as much attention then on DNA testing in death penalty cases as there is today, said Mike Mears, one of the attorneys involved in Felker's appeals. 

"I think the courts would have given the evidence to us then. Unfortunately, it's too late for Wayne," Mears said. "But they owed it to the victim to turn it over. As it is, this poor innocent victim is still being bandied around."

Although DNA testing is becoming a new hope of anti-death penalty activists and lawyers, it is only an option in cases with hair or bodily fluids as evidence. In Georgia, only 20 of the 130 people on death row were also convicted of a sex crime that would indicate the availability of suitable evidence for testing.

DNA testing has worked against some inmates under a death sentence. Texas Gov. George W. Bush stopped the execution of Ricky McGinn on June 1 until evidence found on his victim, his 12-year-old stepdaughter, could be tested. This month, preliminary results said the DNA was either McGinn's or a maternal relative's, according to published reports. 

Until now, the courts have allowed post-conviction DNA testing only before an execution. In Virginia, death-penalty opponents failed in May to get court approval for DNA testing in the case against Joseph O'Dell III, who had been executed in 1997. Once the appeals were over, Virginia authorities destroyed the evidence.

In the Felker case, Houston County Senior Superior Court Judge L.A. McConnell determined that the evidence was a "public record" and available for testing. 

McConnell signed court orders specifying that two newspapers -- The Atlanta Journal-Constitution and The Boston Globe -- can have the evidence tested. The Macon Telegraph and CBS-TV's "60 Minutes" newsmagazine also are petitioning the court to gain access to the evidence.

Experts said McConnell's ruling is the first of its kind in the country. 

"I don't know of anywhere it's been done," said Jane Siegel Greene, executive director of the New York-based Innocence Project at the Benjamin Cardozo Law School. "It's great that the state [of Georgia] is at least taking the stance that they aren't afraid to let the truth come out."

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