Wrongly Convicted Part 1: Man still struggling 4 years after release
First in a series
"I'm not just doing bad," Drew Whitley said. "I'm doing super bad."
After spending more than 17 years in prison for a murder he didn't commit, Whitley, 54, experiences many emotions daily.
"I'm glad I'm free every day," he said. "I'm glad I'm over that nightmare. I'm getting up in age. I'm nervous from all the torture I've been through. I'm taking the bitter with the sweet and taking things day by day."
In 1989, a jury convicted Whitley of the Aug. 17, 1988, murder of McDonald's manager Noreen Malloy in the Duquesne restaurant's parking lot and sentenced him to life in prison. After the Innocence Institute of Point Park University stepped in, DNA testing was performed on hairs inside a mask and hat found at the crime scene. The DNA didn't match Whitley's and he was exonerated May 1, 2006.
But four years later, Whitley cannot find a job. He lives on welfare and struggles to make ends meet.
While more than 25 states reimburse victims of wrongful convictions in some way, Pennsylvania does not.
In March, Whitley was dealt another blow when U.S. District Judge Joy Flowers Conti dismissed a civil rights-violation case against Allegheny County and now-retired county homicide detectives Robert Payne, Thomas M. Fitzgerald, Robert Lazarro, Herb Foote, Lee Torbin and John Markle.
"It is terribly unjust, particularly in light of the injustice Drew Whitley has suffered and the attempt to vindicate it through this lawsuit," said Whitley's attorney Lawrence Fisher, who almost immediately appealed the ruling.
Conti said in her ruling that the defendants have qualified immunity and didn't break the law in their investigation. She said that, although the detectives' investigation was "reckless," they didn't violate Whitley's right to a fair trial because they didn't know a reckless investigation was a violation of civil rights.
"She's saying that, at the time, the right to be free of reckless prosecution hadn't been established," Fisher said. "We argued that it had been established in 1985 that a reckless investigation is a violation of a fair trial."
As far as Whitley's claim of malicious prosecution in the federal lawsuit, Conti said that issue was settled during Whitley's trial when the state court ruled "there was no evidence of any false statements made knowingly, intentionally, or in reckless disregard of the truth, and denied the suppression motion because probable cause existed."
Conti also dismissed a claim against the county that the homicide detectives never were trained to administer polygraphs or collect DNA.
Allegheny County District Attorney Stephen Zappala's spokesman Mike Manko didn't return phone calls requesting comment. Zappala was not the DA at the time of the investigation or the trial that resulted in Whitley's conviction. He was district attorney when Whitley was exonerated and subsequently filed his lawsuit.
Torbin said detectives collected the evidence and turned it over to the district attorney. He said the jury was left to decide Whitley's innocence or guilt based on that evidence.
Payne and Markle didn't return phone calls. Fitzgerald, Lazarro and Foote couldn't be reached for comment.
Whitley said his exoneration was due to the Innocence Institute and its founder Bill Moushey.
"Bill Moushey is my hero," Whitley said. "Everybody's got a hero growing up, like Superman. Bill Moushey is my hero. He really stuck up for me. I'll never forget that for as long as I live."
Whitley said he felt "overwhelmed and overjoyed" when he was told he finally had been cleared of the murder.
Fisher said he's lobbying for compensation for those wrongfully convicted in Pennsylvania.
"It's pending in the Pennsylvania House of Representatives and the Senate both vary a little bit," he said. "They're stalled and not going anywhere."
"I was wrongfully convicted and they denied my federal lawsuit," Whitley said. "There shouldn't have had to be a federal lawsuit. DNA cleared me. There's no way around it. They need to pay for their wrongdoing."
Whitley said he hoped his case would turn out like it did for his friend Tommy Doswell, who was awarded a $3.8 million settlement from Pittsburgh City Council in December 2009 after he spent 19 years in prison on a wrongful rape conviction.
"We worked on our cases together," Whitley said. "He's a good friend of mine. He and my mother were there the day I got out."
Whitley doesn't want to publicly identify where he lives now.
"I'm so scared they'll try to frame me again or someone will shoot me," he said. "I don't trust anyone. I'll never trust the police for as long as I live."
He said he has spoken on the phone to Malloy's family and they feel bad that he was wrongfully convicted.
Whitley spent most of his time in Western Penitentiary, but when that closed he moved to the State Correctional Institution at Greensburg.
"We have implored Allegheny County to investigate those who we identified and the court identified (as suspects) in the case," Fisher said. "The county has not responded to our calls for further investigation."
He said he believes the county police will not investigate the case until the federal lawsuit is complete.
County police Superintendent Charles Moffat could not be reached by presstime for an update on the investigation of Malloy's murder.
Tuesday: The Innocence Institute
