07/01/2008 Convict wants DNA testing of evidence  By Carl Hessler Jr. , chessler@pottsmerc.com  NORRISTOWN - A national litigation organization believes DNA tests can prove a Norristown man's "long proclaimed actual innocence" in connection with the brutal September 1986 stabbing of a borough shopkeeper. The New York City-based The Innocence Project and a Montgomery County lawyer, on behalf of convicted killer Robert Conway, have asked a county judge to approve DNA testing of bloodied evidence collected in connection with the Sept. 25, 1986, stabbing of a clerk at the former Wooley's Surgical Supply Store, which was located in the 500 block of DeKalb Street. Conway, now 51, formerly of the 600 block of Kohn Street, was sentenced in 1989 to 15 to 30 years in state prison after he was convicted by a jury of charges of third-degree murder, unlawful restraint and possession of an instrument of crime in connection with the death of 35-year-old Michele Capitano. Capitano, of Bensalem, who often worked alone in the store, was stabbed 78 times in the store's bathroom, according to court papers. The jury acquitted Conway of first- and second-degree murder, attempted rape, indecent assault, robbery and theft. "After more than 20 years, legitimate questions remain as to the evidence, or lack thereof, used to convict Mr. Conway," Lansdale defense lawyer Steven F. Fairlie wrote in court papers. "(Conway) has consistently maintained that he discovered Ms.Capitano's body in the bathroom when he arrived at Wooley's to buy a cane for his wife." Court documents indicate Conway, who allegedly had "mental deficits" due to a previous head injury, told authorities he attempted to undo Capitano's bound hands and checked to see if she was breathing, but then left when he realized she was already dead. Conway, then 29 years old, went home, told his wife about his grizzly discovery and Conway's wife called police, court papers indicate. Conway is using a relatively new law that allows murderers and rapists to request DNA tests on evidence that resulted in their convictions in an attempt to be freed. The law, enacted in 2002, allows those convicted to seek DNA tests if the identity of the perpetrator was at issue at trial. County prosecutors are reviewing the request and must file an answer with a judge, who will then hold a hearing on the matter. DNA, or deoxyribonucleic acid, is an organic substance found primarily in the nucleus of living cells. It carries the genetic information that determines individual characteristics such as body size and eye color. DNA is unique to a person and is the same in every cell, whether gathered from blood, saliva or skin samples. Fairlie, of the law firm Rubin, Glickman, Steinberg and Gifford, is the local lawyer assisting in the case. The Innocence Project, founded in 1992, is a national litigation and public policy organization dedicated to exonerating wrongfully convicted people through DNA testing. Fairlie and lawyer Craig M. Cooley, of The Innocence Project, argued in court papers that despite a significant amount of blood found at the crime scene, prosecutors "failed to produce a shred of physical or biological evidence that linked Mr. Conway to Ms. Capitano's brutal and bloody murder." Conway, according to Fairlie and Cooley, was convicted with "one of the most unreliable forms of evidence in the criminal justice system - informant testimony." A jailhouse informant claimed Conway professed his guilt to him. Fairlie and Cooley claimed the informant's testimony, alone, raises questions about Conway's conviction. "When (the informant's) testimony, however, is coupled with the fact the commonwealth failed to identify a single droplet of Ms. Capitano's blood on Mr. Conway's person, clothing, shoes and (pocket) knife, these questions become even more pronounced and troubling," Fairlie wrote. "The many troubling aspects of Mr. Conway's case, however, can be conclusively resolved thanks to advancing DNA technology," Fairlie added. Fairlie and Cooley asked a judge to allow DNA testing of the following items: bloodied paper towels, presumably used by the killer to wash his hands, that were found near Capitano's left hand; fingernail clippings from Capitano's hands; a piece of blue cloth tied around Capitano's wrists; and Capitano's clothing. "Many recent investigations and exonerations have turned on DNA tests performed on fingernail clippings and scrapings," Fairlie argued. "The evidence Mr. Conway seeks to test was not subjected to DNA testing because the technology was not available." Fairlie argued that the FBI used "rudimentary" blood tests available in the 1980s to test certain pieces of evidence. "Due to their limited sensitivity and discriminatory potential, however, these techniques could not determine whether Ms. Capitano's blood overwhelmed or masked the true assailant's DNA," Fairlie and Cooley argued. "Today's DNA technology, though, can answer this question, as well as many other questions that can ultimately prove Mr. Conway's long proclaimed actual innocence." According to The Innocence Project's Web site, to date, 218 people in the U.S. have been exonerated by DNA testing, including 16 who served time on death row.

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