Death row inmate wants stay because of lost DNA

TAMPA (AP) -- When Jeb Bush signed a death warrant for Wayne Tompkins for the murder of a teen-ager, the governor was told there was no evidence suitable for DNA testing.

What Bush was not told is that there had been such evidence, but police lost it.

Now, attorneys for Tompkins plan to seek a stay of his May 1 execution and a new trial, based on the lost evidence and what they say are other inconsistencies in the case.

Tompkins is facing execution the 1983 murder of Lisa DeCarr, 15, of Tampa.

The missing evidence is several hairs found with the body, discovered more than a year after the teen-ager had been reported missing by her mother, Barbara DeCarr. Her body had been buried beneath her mother's house. At the time, Tompkins, a roofer, lived with Barbara DeCarr.

Bush has a policy that he will not sign a death warrant until any available DNA evidence that could possibly exonerate the inmate is tested.

Bush signed the warrant for Tompkins March 22, based on information from the Hillsborough State Attorney's Office.

''The Governor has gone out on a limb and signed this warrant based on their misrepresentation,'' said Martin McClain, a lawyer with Capital Collateral Regional Counsel, the state agency that represents death row inmates. ''I think it's outrageous.''

McClain said during a hearing Wednesday before Circuit Judge Daniel L. Perry prosecutors did not disclose contents of an April 6 letter sent to State Attorney Mark Ober by the governor's office noting, in part, his policy.

Before he learned the DNA evidence had been lost or that the governor called for DNA testing, Perry denied a defense motion to test it. After Perry ruled, prosecutors revealed the evidence had been lost.

Prosecutor Shirley Williams told the St. Petersburg Times Friday night: ''There is some missing evidence. The judge addressed it in his order.''

As to how the evidence was lost, Williams said: ''It was in the custody of the Tampa Police Department.''

Records show the last person to have contact with the hairs was Tampa homicide Detective Gene Black.

At the hearing Wednesday, Black testified that although the evidence log dated June 1990 bore his name and identification number, he was not the person who signed it out.

Although the hairs may not prove Tompkins' innocence, McClain said he deserves time so a search for them can be conducted.

''It's been years,'' he said. ''What's one more month? Look what happened to Frank Lee Smith.''

Smith died of cancer on Jan. 30, 2000 while on death row. More than 10 months later, posthumous DNA testing proved his innocence.