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DNA cited in plea for 1990 New Kensington rape case retrial

Rich Cholodofsky
| Friday, Oct. 23, 2009

An attorney for a man convicted nearly two decades ago of rape said in court Thursday that recently uncovered DNA evidence and a new scientific report are sufficient grounds for a retrial.

Craig Cooley, a lawyer with the Innocence Project in New York, argued to Westmoreland County Judge Rita Hathaway that an electrical cord used to sexually assault a New Kensington woman 19 years ago did not carry the DNA of the man convicted of the brutal crimes.

John Kunco, 43, formerly of Harrison Township, Allegheny County, is serving a 45- to 90-year sentence for the sexual assault of a 55-year-old woman who lived in an apartment building where he worked as a maintenance man.

"If the jury had both of these, there was doubt. If there was a new trial, the outcome would be different. I am confident of that," Cooley said.

During the 1992 trial, prosecutors presented evidence that Kunco broke into his accuser's home on Dec. 16, 1990, blindfolded her with her own underwear, shocked her with a frayed electrical cord, raped her, then forced her to perform painful and degrading sexual acts.

The victim said she was able to identify Kunco by his recognizable lisp.

Five months after the woman was attacked, an ultraviolet photograph of her back was enlarged and healed bite wounds were compared to a mold of Kunco's teeth. Forensic experts testified at trial that the healed wounds matched Kunco's dental impression.

Cooley argued yesterday that a report released in February 2009 by the National Academy of Science debunked the theory that bite marks could be positively linked to a person.

Westmoreland County prosecutors insisted that the report is irrelevant because at best it would have been used only to impeach the testimony of forensic experts who testified at trial.

"No one could say that all bite mark evidence is no good," said Assistant District Attorney Jim Hopson.

The Innocence Project, a private, nonprofit agency based in New York, was created in 1992 and has worked on high-profile cases in which DNA could be used to overturn a conviction.

In June, the Innocence Project tested the electrical cord for DNA evidence and found that it contained small samples from two unidentified men and not from Kunco.

Cooley said that evidence could have convinced a jury that Kunco was not at the scene of the rape.

"That would have been significant. A reasonable juror could assume maybe he didn't do it," Cooley said.

But Assistant District Attorney Wayne Gongaware argued there was no way to know whether Kunco's DNA had at one time been on the cord.

"In 1991 or 1992 we didn't have DNA. Police and the district attorney didn't wear gloves when they handled the evidence. The fact that DNA wasn't found on the cord doesn't mean anything," Gongaware said.

Hathaway said she will have to decide whether the evidence raised by the Innocence Project's appeal, if presented in 1992, would have altered the outcome of the trial. The judge also said a determination will have to be made as to whether the issues raised by Kunco's lawyers actually constitute newly discovered evidence.

She ordered lawyers to submit additional legal arguments and said she will rule at a later date.

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