APPEALS court overturns Oklahoma man's death sentence

DENVER (AP) _ The 10th U.S. Circuit Court of Appeals overturned the death sentence of convicted murderer Alfred Brian Mitchell on Monday because an Oklahoma City police chemist's testimony about DNA

Tuesday, August 14th 2001, 12:00 am

By: News On 6

DENVER (AP) _ The 10th U.S. Circuit Court of Appeals overturned the death sentence of convicted murderer Alfred Brian Mitchell on Monday because an Oklahoma City police chemist's testimony about DNA evidence was wrong.

A three-judge panel reversed a federal court's decision upholding the death penalty and ordered that Mitchell be resentenced for the 1991 murder of college student Elaine Scott.

But the court upheld Mitchell's murder conviction, rejecting his claims that authorities violated his constitutional rights when questioning him and during the trial.

A jury convicted Mitchell of rape, sodomy and first-degree murder and sentenced him to death after Scott was found dead in a youth center where she volunteered. She was struck in the head and was beaten with a golf club and a wooden coat rack.

A federal court in Oklahoma threw out Mitchell's rape and sodomy convictions because the jury wasn't told that an FBI agent refuted test results by police chemist Joyce Gilchrist.

Despite prosecutors' arguments, there was no DNA evidence showing that Mitchell had raped Scott, according to court records. Sperm found on her underpants matched that of Scott's boyfriend, and other tests turned up no sperm at all.

The Oklahoma State Bureau of Investigation is reviewing Gilchrist's work in several other cases, including murder convictions. The state attorney general has declined further review of Mitchell's case.

The federal court in Oklahoma had refused to overturn Mitchell's death sentence, contending there was enough evidence without the rape conviction to justify the penalty.

The appeals court in Denver, however, said prosecutors referred to the alleged rape and sodomy during the trial and brought up Mitchell's rape of a 12-year-old girl when he was a juvenile. Prosecutors argued Mitchell learned from his earlier conviction that he shouldn't leave a rape victim alive, the court said.

``We simply cannot be confident that the jury would have returned the same sentence had no rape and sodomy evidence been presented to it,'' the judges wrote.