Nebraska Supreme Court: Inmates deserve DNA tests

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By CLARENCE MABIN / Lincoln Journal Star

Two Nebraskans imprisoned for a 1985 murder can seek DNA testing that could undermine testimony prosecutors used to get their convictions, the state Supreme Court said Friday.

Thomas Winslow, 41, and Joseph Edgar White, 44, were sentenced to 50 years and life in prison, respectively, for the murder of Helen Wilson, who was severely beaten and sexually assaulted inside her Beatrice apartment during a robbery. A brother-in-law found her body the next morning. Among other injuries, Wilson, 68, had fractures to her ribs and sternum and numerous bruises and scratches.

Prosecutors charged White with first-degree murder and at his trial, others who participated in the robbery implicated him and Winslow in the sexual assault.

Winslow, in a plea deal, pleaded no contest to aiding and abetting second-degree murder.

In 2006, both men filed motions for DNA testing under the 2000 DNA Testing Act, arguing the results could prove exculpatory, that is, they could clear a convicted defendant of the crime.

District Judge Vicky Johnson of Wilber, in denying White’s motion, said that even if the testing excluded White from the sexual assault, the results would not mean he was not involved in the robbery. White maintains he was not present, although several trial witnesses placed him at the scene.

Johnson also said that White was not charged with sexual assault, but with felony murder, a charge that could be proved whether or not he raped Wilson.

The judge used similar logic in denying the motion of Winslow, who was charged with aiding and abetting the homicide. Johnson also said he could not apply for testing under the act because his conviction was the result of a plea, and not a trial.

In reversing Johnson on Friday, the Supreme Court said Winslow did not waive his rights under the act because of the plea. The court noted that the Legislature, in passing the act, said its intent was to benefit the “wrongfully convicted.”

Lawmakers made no distinction between people convicted of crimes by trial or through a plea, the court said.

The court also ruled DNA testing could exclude White and Winslow as perpetrators of the sexual assault, a result that could undermine the credibility of testimony used to convict White.

Winslow would benefit from the testing because his plea was based on evidence from White’s trial, the court said Friday.

The Nebraska Attorney General’s Office declined comment on the rulings.

Jerry Soucie, who represented Winslow in the appeal, said he was pleased, but not surprised, with the ruling in White’s case. White’s attorney, Douglas Stratton of Norfolk, could not be reached Friday.

“I think it was a foregone conclusion that White would get the testing,” Soucie said.

The DNA Testing Act permits testing of biological samples if, among other things, the testing could produce exculpatory results.

Soucie said about a dozen Nebraska inmates have requested the testing since the law’s enactment. In four or five of those cases, testable samples did not exist, he said.

So far, no Nebraska inmate has been exonerated of a crime through the testing, Soucie said.

Reach Clarence Mabin at cmabin@journalstar.com or 473-7234.