DNA clears man in murder, 11 months after he died on death row

TALLAHASSEE, Fla. -- (AP) -- Nearly 11 months after a death row inmate died of cancer, DNA has cleared him of the 1985 murder of an 8-year-old girl raped and fatally beaten in her bed.

The FBI has not written its final report on Frank Lee Smith, but Assistant State Attorney Carolyn McCann said she called the bureau to ask about the results earlier this week.

``They told me `He has been excluded, he didn't do it,''' McCann said Thursday.

``Nobody wants to feel like the wrong person was in jail,'' she said.  ``It's a bad feeling.''

The family of Shandra Whitehead, who died nine days after she was attacked in Fort Lauderdale on April 14, 1985, has been told and the investigation has been reopened, McCann said.

``We have suspects that the defense has been presenting all along,'' she said.

Geoffrey Smith, a Tallahassee attorney representing Frank Lee Smith, didn't immediately return a phone call seeking comment Thursday.

Smith, 52, died of cancer Jan. 30 at the North Florida Reception Center hospital. He had been sent to death row 14 years earlier for Whitehead's murder.

Former Gov. Bob Martinez signed a death warrant for Smith in 1989 and he was scheduled for execution in January 1990 but he won a stay.

In 1985, someone broke into Shandra Whitehead's bedroom as she slept and raped, beat and strangled her. Her mother was returning home from work when she saw a man at the living room window.

She testified it was Smith. His insanity defense failed and he was condemned after a unanimous jury recommendation for death.  The state Supreme Court upheld the conviction and sentence after the first direct appeal but in January 1998 ordered a trial judge to hold an evidentiary hearing based on Smith's claim of new evidence.  It didn't have anything to do with DNA.

At Smith's trial, three witnesses testified against him, including the mother of the little girl and a woman who said she saw him in front of the victim's house just before the murder.

But Chiquita Lowe later changed her story, saying the man she saw was someone else.  At the appeal hearing in the fall of 1998, the trial judge wasn't persuaded, McCann said Thursday. Meanwhile, lawyers on both sides of the case were fighting over DNA.

McCann said Smith's lawyers wanted to have their client's DNA tested but wanted to keep the results to themselves. She said she refused to agree to that condition and tried to get them to agree to a DNA test where the results would be available to both sides.

``My whole point of doing DNA testing was that I thought he was guilty,'' McCann said.

A short time after Smith died, an investigator in McCann's office obtained a vial of his blood. A few months later, in
mid-July, an agreement was hammered out.

Then it took a few weeks to get the paperwork signed and to collect the evidence -- semen left in the little girl's vagina -- from the Broward County Sheriff's office.

``It was just a matter that they got behind and Frank Lee Smith was dead,'' McCann said.

The samples were sent to the FBI a month ago. McCann learned of the results Monday.

At least nine former death row inmates across the country have been exonerated because of DNA testing, according to the Innocence Project, a New York-based group that has provided legal assistance to dozens of wrongly convicted inmates.

Earlier this year, Illinois Gov. George Ryan, a Republican, declared a moratorium on the death penalty to examine improvements because 13 death row inmates have had their convictions overturned since 1977.

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