DADE CITY — More than 15 years ago, Gary Steven Cannon sat in a courtroom while prosecutors convinced jurors he was guilty of the rape and murder of a 9-year-old girl.
After a judge’s ruling this month, Cannon is set to appear in court again — this time to convince a judge of his innocence.
In the latest update in Cannon’s bid to overturn his 2005 conviction, Pinellas-Pasco Judge Lynn Tepper ordered an evidentiary hearing in which Cannon’s defense attorneys are expected to present witnesses and evidence to bolster their case that he deserves a new trial. On the other side will be lawyers from the same State Attorney’s Office that originally prosecuted him and who will likely seek to maintain that conviction.
An evidentiary hearing arises after a defendant files a motion for retrial when there are factual disputes in the evidence. A judge then will rule on whether to grant or deny the motion based on whether the evidence is likely to produce an acquittal at a new trial.
The date for Cannon’s hearing hasn’t been set yet, but it is expected to occur sometime early next year.
“Mr. Cannon looks forward to the opportunity to present this new evidence, including exculpatory DNA evidence, to support what he has been saying for two decades — that he is innocent of this brutal crime,” said a statement Monday from the Pinellas-Pasco Public Defender’s Office, which is representing Cannon.
At issue is new testing of DNA evidence from the crime, and the credibility of a state witness who said Cannon confessed while they were incarcerated together in a Pasco County jail.
Cannon was convicted in the 1997 rape and murder of Sharra Ferger in Dade City. The case against him hinged on graphic testimony from the jailhouse witness, as well as strands of Cannon’s hair found on Sharra’s body. Because Cannon was 17 when the crime occurred, he became eligible for resentencing after the U.S. Supreme Court determined that mandatory life sentences for children are unconstitutional.
Amid preparation for the resentencing hearing, Cannon’s attorneys tested old DNA evidence from Sharra’s rape kit that they said, because of advances in technology, produced a new result: There was foreign DNA inside of her body, but it didn’t belong to Cannon, now 41. Nor did it belong to his co-defendant, Gary Elishi Cochran — a 55-year-old man who also is serving a life sentence for the crime.
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While Cannon’s attorneys have maintained that the evidence disproves the state’s case, the State Attorney’s Office said in a court filing the argument was “without merit.”
“Defendant correctly notes that both he and his co-defendant were excluded as contributors to the swabs taken from the victim,” Assistant State Attorney Glenn Martin wrote last month in a response to the defense’s motion for a new trial. “However, what Defendant fails to further acknowledge is that the testing was unable to detect the presence of any male DNA whatsoever.”
Martin based that on a deposition with the Virginia-based Bode Technology DNA analyst who performed the tests — and who he also sought to discredit in his response by questioning the way she conducted the tests. Later, on cross-examination, Assistant Public Defender Maria DeLiberato appeared to clarify with the analyst that there wasn’t enough information to determine whether male DNA was present or not.
While Tepper disagreed with the assertion that the evidence conclusively refutes the state’s case, the presence of DNA from unknown parties is “critical,” she wrote in her Nov. 15 order granting the evidentiary hearing. Martin did not return requests for comment Monday.
Another issue likely to come up at the hearing is the credibility of Randy Kernan, the jailhouse witness who, in his testimony against Cannon, said he received no favorable treatment from prosecutors for his cooperation.
However, Cannon’s attorneys found a letter that Kernan wrote to a State Attorney’s Office investigator that described a possible arrangement that benefited Kernan, as well as documents that showed he worked as a confidential informant for the Pasco County Sheriff’s Office for several years.
Martin wrote in his response that the letter could have been obtained through a public records request at any point since it was sent in 1999, making the defense’s argument untimely, and it didn’t have enough detail to prove favorable treatment. He also pointed out that Cannon’s original lawyers had questioned Kernan about his work as an informant in 2004.
Tepper, in her order, said the dispute should be worked out at the evidentiary hearing.