The DNA test used to convict Albert Givens of murdering an Arnold woman in 1992 should never have been admitted as evidence, his lawyer argued to an appeals panel yesterday. And Givens' sentence of life without parole was unfair, the lawyer added.
Timothy D. Murnane, Givens' lawyer, asked a panel of three judges to reduce Givens' sentence to life with the possibility of parole while he awaits a hearing on his appeal of the conviction to the Court of Special Appeals.
He argued that the key piece of evidence against his client, an experimental DNA test police conducted on a small sample of saliva taken from a soda can on the victim's kitchen table, is unreliable and never before had been used in a Maryland criminal trial.
Givens, 38, was convicted last April of first-degree murder and sentenced to life without parole in the death of of Marlene Kilpatrick, for whom he worked as a handyman.
Ms. Kilpatrick, 55, was stabbed repeatedly, beaten on the head and sexually assaulted in her home in the 100 block of Church Road.
Her body was discovered Jan. 3, 1992.
Mr. Murnane argued yesterday that the test used to convict Givens is unreliable because testers replicate a single cell to get a sufficient sample.
"The goop that's replicated is not of good quality," he said.
He also argued that because a state statute allowing DNA tests to be admissible in court did not include the new test, the court should not have allowed the test results to be presented to the jury.
"In this case, they took a quantum leap to let the stuff in," Mr. Murnane said.
In addition, the speck of blood police found on Givens' 18-inch Sears crescent wrench, believed to be used in the murder, wasn't large enough to test.
"A hand tool from a working man's tool box that has a spot of blood?" he asked. "I can't even pick up a tool without scratching my knuckles."
He also argued that Sears wrenches are readily available, but that "no medical examiner can say that his was the one used in the murder."
But Judge Martin A. Wolff pointed out that the wrench was the only one found in Mr. Givens' tool box that was wiped clean.
Assistant State's Attorney Kathleen Rogers said the jury did not convict Givens on the DNA test alone.
"They convicted on the totality of the evidence," she said.
Calling Givens a dangerous man, she recounted the details of the "brutal, cold-blooded, and senseless murder."
Ms. Rogers said that Judge Raymond G. Thieme, who ordered the life without parole sentence, usually is moderate in the sentences he imposes, but he gave Givens the maximum sentence because of the brutal nature of the killing.
"He said the evidence was overwhelming," Ms. Rogers recounted. "And considering the facts, the sentence is fair."
Givens yesterday continued to maintain his innocence and called himself a victim.
"This is something that I am not involved in," he said. "I'm a victim of this crime too."