death penalty news—-TEXAS

Jan. 17


DNA doesn't match, but prosecutors unmoved

Lawyers for a Houston man sentenced to death in the 1994 killing of a
72-year-old grandmother argued for his release Friday, saying DNA test
results exonerate him.

"I'm going to do my best to parlay this into a new trial," said Sarah
Frazier, one of Charles D. Raby's attorneys. "We have the killer's DNA,
and it's not my client's."

A Harris County jury sent Raby to death row nearly 15 years ago after
finding that he stabbed Edna M. Franklin to death in her north Houston

Prosecutors presented evidence at the trial that Raby had been seen
jumping Franklin's backyard fence on the night of the killing. Statements
he made to investigators proved he was in Franklins home, jurors were

But recent DNA testing on genetic material found on Franklin's blood-caked
fingernails points to someone else, Raby's lawyers contend.

Prosecutors, however, are arguing that the DNA results aren't enough to
exonerate Raby. There is still plenty of evidence to prove he killed
Franklin, they say.

"The absence of DNA doesn't mean he didnt do it," said Assistant District
Attorney Lynn Hardaway. Hardaway told state District Judge Joan Campbell
that a lack of DNA, like a lack of a fingerprints, doesn't equal

Hardaway cited Raby's confession and other evidence presented at trial
supporting the conviction.

Campbell said she would hear final arguments in about 6 weeks concerning
whether the DNA evidence is favorable to the defense. If she rules it is,
it could open the door to an appeal, Frazier said. She noted, however,
there isnt a clear path from a favorable ruling to a new trial.

Raby was a 22-year-old parolee with a violent history when Franklin took
him into her home at her grandson's request. At his trial, prosecutors
argued that Raby must have turned on Franklin when she told him he was no
longer welcome in her home.

Her throat was slit twice, her ribs were broken, and she had been stabbed
repeatedly with a pocketknife.

Raby had a prior conviction for aggravated robbery with a knife, and he
had been jailed in 1989 after being accused of attacking his parents. A
doctor testified at his trial that Raby, who had a tattoo on his torso
reading "Texas outlaw," was a sociopath.

After attending Friday's hearing, Raby's mother maintained that her son is

"I hope he gets off death row," said Betty Wearstler. "It's depressing.
It's a very sad life."

After the hearing, Franklin's grandsons noted that Franklin knew Raby.

Theory disputed

"He was one of those kind you knew, but you weren't crazy about being
around," said Benge, 39, standing outside his grandmother's north Lindale
Park home. "The kind of guy, if you saw him walking down the street, you'd
turn off your lights so he'd think you werent at home."

2 weeks before Franklins murder, he stopped by the frail, arthritic
woman's house on Westford Street and asked to stay there. She told him to
get off her property, said Rose, contacted at his home in Alabama.

"He got mad, and he threw a 40-ounce beer bottle on her porch and broke
it," said Rose, 37.

Both Rose and Benge believe Raby killed their grandmother.

"I know that he did it," said Benge. "There's no doubt he did it."

Both men discount Raby's theory that her killer's DNA could be found under
her fingernails.

"She weighed under 100 pounds. How much fighting back could she have
done?" Rose said.

(source: Houston Chronicle)