A Chattanooga man who was the first person ever tried in the United States using mitochondrial DNA testing is petitioning for the evidence linking him to the rape and slaying of a 4-year-old girl in 1994 to be tested again.
And an attorney with the University of Tennessee School of Law Innocence Clinic is helping push for a review of the mitochondrial DNA evidence used in Paul Ware's landmark case.
Ware was convicted of the killing of Lindsey Green based on DNA testing of one hair, but lawyers argue in court filings that another untested hair found in the girl's body could cast doubt on whether he is the killer.
"A reasonable probability exists that [Ware] would not have been prosecuted or convicted if ... results had been obtained through [mitochondrial] DNA analysis of this hair," according to a court filing signed by Ware's attorneys, Myrlene Marsa, a private Chattanooga lawyer, and Sarah Graham McGee, a clinic attorney with UT.
When Ware was convicted of rape and murder in 1996 and sentenced to life in prison without parole, mitochondrial DNA testing mainly was used by the military to identify dead soldiers but had never been used in court, said Lee Davis, a private attorney who served as assistant district attorney and lead prosecutor at the Ware trial.
Mitochondrial DNA testing makes it possible to extract conclusive DNA evidence from a bone fragment, a tooth or a single hair.
"Just because it was the first case doesn't mean it was the first time it was used as a science," Davis said. "It's not like we got the results and said, 'Let's throw this into court and see if it works.' It was very carefully introduced as evidence."
Ware was found by Lindsey's mother, sleeping nude on the floor of a laundry room of a North Chattanooga home with the lifeless, naked child. The girl had been violently raped and mutilated.
Fourteen hairs were found in the child's crib-like bed that matched Ware in DNA tests, and two hairs were found inside her body, Davis said.
One found in her throat during an autopsy was matched to Ware, and Davis said the only way it could have gotten there was through a sexual assault.
Another hair was found on her anus, but at the time of the trial it was considered to be too small to be tested, court records show.
"If an [Innocence Clinic] wants to examine the evidence, I would expect with 100 percent accuracy that it would produce the same result," Davis said. "It's science. It's not guesswork."
Several calls to the Innocence Clinic and Ware's attorney Myrlene Marsa were not returned.
But Ware's former attorney, Hank Hill, said he still believes Ware wasn't the killer, even if a second review of the DNA evidence confirms a match.
During the trial, Hill argued that Lindsey's baby-sitter, Paul Crum, had killed the child as part of a satanic ritual and framed Ware.
One of Ware's hairs could have gotten in her throat without a sexual assault, he said, and his hairs were found in her bed because he often slept there. No blood was found on him, and no semen was found, court records show.
"The facts of this case do not add up," he said. "It's impossible. The entire trial, the hair on the child was a red herring. ... Whatever hair is there is inconsequential in comparison to the fact that there is no other DNA on him and none of his DNA on her."
Ware's post-conviction appeal will go before a judge next month.