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Woman seeks DNA tests to bolster claim of innocence.

Byline: Jessica Shumaker

Two appeals court judges have expressed skepticism that newly discovered evidence from a 35-year-old murder case could prove favorable to a woman convicted of killing her husband and serving a life sentence in prison.

On April 16, a three-judge panel from the Missouri Court of Appeals Western District heard arguments from Patricia "Patty" Prewitt that the court should overturn a Pettis County judge's decision denying her post-conviction motion to test the evidence for DNA.

Prewitt, 69, was convicted in 1985 for the murder of her husband, Bill Prewitt, a year earlier at their Holden home. She has maintained her innocence since her conviction.

At trial, prosecutors alleged she alone shot and killed her husband while he was sleeping, according to her brief. Prewitt alleged the prosecution attacked her credibility at trial by entering evidence of her extramarital affairs that occurred years prior to the murder, while the couple was estranged.

Prewitt, however, testified that she awakened to a thunder-like sound and an intruder placed a knife to her throat before sexually assaulting her. She maintains that the intruder killed her husband.

Prewitt's interest in seeking DNA testing stemmed from news in 2018 that law enforcement authorities in Johnson County still have evidence from her case in custody, according to her brief.

She learned of the evidence through a television crew who featured her case in the show "Final Appeal," which aired in January 2018 on the Oxygen network. The show focuses on cases of possible wrongful convictions.

In her brief, she said the show's production company received a letter from the sheriff's office that lists the evidence, including the pajamas she was wearing the night of the murder, knives from the family's home and two of the home's telephones and cords important because someone cut the power and telephone lines to the home around the time of the murder.

Prewitt said she was surprised to learn of the evidence because her previous attempts to gain information through her attorneys were unsuccessful. She went on to file a motion for post-conviction DNA testing in Pettis County Circuit Court, seeking to test the items on the evidence list for DNA through bodily fluids, foreign hairs or "touch DNA" DNA left through the handling of an object.

After a March 2018 hearing, Judge Robert L. Koffman denied Prewitt's motion, prompting Prewitt's appeal now before the Western District.

On appeal, she is arguing that Koffman's ruling failed to properly assess whether there is a reasonable probability that a jury would not have convicted Prewitt if she had been able to obtain exculpatory evidence through testing prior to trial.

She argued that he improperly applied the standard required to release her, rather than the lesser standard to test the evidence.

Her attorney, Brian Reichart of Hull, Massachusetts, told the panel that Koffman improperly ruled that Prewitt needed to prove her innocence in order to obtain testing.

"This is an incorrect inquiry," he said, noting that the statute at issue, section 457.035, does not require innocence.

In addition to Reichart, who worked on an earlier effort to free Prewitt through clemency, Prewitt is also represented by the Midwest Innocence Project.

Judges Anthony Rex Gabbert and Edward R. Ardini Jr. both questioned how the DNA would be exculpatory. Gabbert noted that other evidence tied Prewitt to the murder, including her boot prints leading to the pond on the Prewitt property where the murder weapon was found, and evidence of her past affairs.

Gabbert asked whether Prewitt had previously testified that the intruder left semen on her clothing during the assault, while Ardini asked how evidence on clothing some 30-years later could be tied to that specific night.

"It sounds like what you're saying is, let us test it, we'll see what we find and we'll put the puzzle together then," Ardini said.

Reichart said the state made several statements at trial that don't hold up upon close examination. He said that the prosecution, for example, failed to link the murder weapon to the Prewitt family.

Additionally, Reichart said she didn't testify at trial to the assailant leaving fluids on her clothing, and that it's not necessary to establish for the court to allow her to test the evidence.

"There was an attack of a sexual nature," Reichert said, adding that Prewitt wouldn't necessarily know herself if the assailant left fluids on her clothing.

He also said that any question about the interpretation of the evidence is "an argument for another day."

Karen Kramer, an assistant attorney general, argued that Koffman explicitly stated he could not find a reasonable probability that the evidence could have resulted in a different outcome.

"As this court found on direct appeal, there is overwhelming evidence of the appellant's guilt in this case," she said.

Kramer said Prewitt did not explain how the evidence she seeks to test would be exculpatory.

She also said the reason why the standard is high is because it's a different type of claim than ineffective assistance of counsel, were a new trial would be required.

"We don't have that here," she said. "If she's exonerated, that's it. The court has to let her go."

Additionally, Kramer questioned whether the evidence in custody remained uncontaminated over the years. She was particularly skeptical of Prewitt's interest in collecting touch DNA.

Kramer argued that it is not known if the department took the proper steps to prevent contamination. Additionally, pointing to Prewitt's own affairs prior to her husband's death, Kramer said if DNA did exist on Prewitt's clothing, it could be from anyone.

The case is State v. Prewitt, WD81759.

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Publication:Missouri Lawyers Media
Date:Apr 19, 2019
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