TULSA, Okla. (AP) _ A Wagoner County man whose conviction in a 1981 murder came on hair evidence that didn't match his DNA likely will be released from prison, a prosecutor said Monday.
District Attorney Dianne Barker Harrold planned to ask a judge for a new trial in the case against Albert Wesley Brown, but she said the case will be difficult to retry.
The 39-year-old has spent 18 years in prison on a life sentence for the murder of Earl Taylor, who was bound, gagged and drowned in Lake Fort Gibson.
Brown's attorneys want him released based on a new report that says a hair found in the gag in Taylor's mouth should not have been linked to Brown. A hearing was scheduled for 4 p.m. Monday in Wagoner County District Court.
Barker Harrold said DNA testing that shows the hair did not belong to Brown does not prove his innocence. But she expects he will be released while investigators re-examine the case.
``It's a 20-year-old cold case. We're going to ask for some time,'' she said.
If a case can't be made against Brown ``we'll do a motion to dismiss,'' Barker Harrold said.
Oklahoma Indigent Defense System lawyers representing Brown did not immediately return a telephone call seeking comment Monday.
The evidence was retested under a new law created in July 2000 that allows OIDS to investigate claims of innocence by state inmates. Brown was the first to apply.
Former Oklahoma State Bureau of Investigation Agent Kenneth Ede testified at Brown's trial that hair found in the gag was consistent with Brown's hair. Ede also said four hairs found in the trunk of a car driven by Brown were consistent with the victim.
But mitochondrial DNA testing of the hairs by an independent laboratory in Pennsylvania determined the hair found in the gag was not Brown's. Lab scientists said the hair may have been Taylor's.
The laboratory also said the hairs in the trunk did not come from Taylor.
Ede used a statistical probability in his testimony. He said there was Grecian Formula on the hairs in the trunk, which increased the likelihood of a match to the victim.
That testimony was scrutinized by the Oklahoma Court of Criminal Appeals but ultimately was ruled a ``harmless error.''
Prosecutors alleged that Brown killed Taylor after being interrupted during a burglary. They said Taylor was bound, gagged and placed in Brown's borrowed car and drowned in the lake.
Nearly a year later, Brown was identified as a suspect through an auto-theft case.
A second man also was charged in the murder, but the case against him was dropped.
Brown said he was in Broken Arrow and Tulsa at the time of the crimes, and friends and family testified to his alibi.
But the OSBI agent testified that soil found on the tire of Brown's car originated within half a mile of where the victim was discovered.
The soil testimony is disputed by another expert, Raymond C. Murray, who determined that ``such testimony is on its face false and useless and should never have been presented to the jury.'' A report by Murray says the testimony demonstrates Ede's ``total lack of knowledge of geologic science and soil science.''
OSBI agent Claude Berry testified that fiber from a windowsill of the victim's home was consistent with a shirt found in Brown's vehicle. The fibers have not been located for testing.
Defense attorneys argue that the fiber testimony is not strong because the shirt was not directly linked to Brown and may not have been worn because it had a 25-cent garage sale sticker on it.
Other evidence included testimony from a man who said he saw a vehicle similar to the one driven by Brown near the area where Taylor was found.
And a convicted felon who was arrested for possessing a gun that had been stolen from Taylor's home said he traded drugs for the gun to a man who resembled Brown.
Barker Harrold, who was not in office at the time of the Brown's 1983 conviction, said other potential suspects will be investigated.
``My concern is with the family of Earl Taylor,'' she said.