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His DNA in court 

Tim Kennedy's new trial could foreshadow more reopened cases to come, experts say

To get a new trial for a 1991 double killing in Old Colorado City, many things had to go Tim Kennedy's way.

He had to convince defense attorneys that his 1997 conviction was flawed, and that new DNA evidence could help prove his innocence. He needed a judge to agree that his original attorney was inept, and that the new evidence could make a difference.

And he needed a lot of money.

As deputy director of Colorado's Alternative Defense Counsel, the agency that financed Kennedy's successful legal challenge, Bert Nieslanik knows the 52-year-old faced huge hurdles. But she predicts others stuck in Colorado prisons will take up, and win, their own fights using DNA evidence.

"I think there will be a lot more of them," Nieslanik says without hesitation.

After Kennedy's conviction was overturned, the local district attorney's office announced plans to put him on trial again in September; Kennedy posted a $250,000 bond May 29 to go free in the interim.

He's the second Coloradan whose conviction was overturned thanks in large part to new DNA evidence. Timothy Masters, convicted for a 1987 killing in Fort Collins, was released in January 2008 after more than nine years in prison. (Though Masters has not been fully exonerated, charges against him were dropped.)

DNA testing for the Masters and Kennedy cases cost well over $100,000, Nieslanik says. She adds that her office, which handles most post-conviction challenges that reach Colorado courtrooms, is pursuing four more cases in which DNA could play a key role. Though she won't give details, she says all are alleged homicides or forcible rapes. To help pay, she's applying for hundreds of thousands in federal grant money.

Funding aside, Nieslanik and other legal experts say few potentially viable cases ever get taken up again. One reason: Since many prisoners have little education, it's often harder for them to prepare their letters and legal papers.

"A lot of these guys aren't very articulate, and they don't get to first base with it," Nieslanik says.

The Colorado Innocence Project gets dozens of requests each month from prisoners who want their cases reviewed. James Scarboro, a Denver attorney who heads the project as a volunteer, says only a small fraction hint at new evidence or an attorney's mistake that could force a new trial. Those cases are taken to the next level by the ADC, the public defender's office or private attorneys working pro bono.

Scarboro and Nieslanik agree that a big reason Colorado has few innocence cases compared to other states is its good public defender system. Texas, where some counties have public defenders and others use court-appointed private attorneys, accounts for 40 out of the 200-plus convictions that DNA evidence has helped reverse across the country.

Masters and Kennedy, Nieslanik points out, both used private attorneys.

Kennedy's struggles have been epic. He exhausted his appeals after his conviction, and in 2003 filed paperwork arguing ineffective counsel. His attorney failed to call witnesses or build a case showing that the 1991 slayings of Jennifer Carpenter, 15, and her boyfriend Steve Staskiewicz, 37, could have been orchestrated by a couple accused of raping Carpenter months earlier.

Denver attorney John Dicke, who started working on Kennedy's behalf in 2006, is convinced the DNA and other evidence will free Kennedy if the case, now in the hands of public defenders, goes to trial.

lane@csindy.com

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