“That’s bad, that’s real bad,” sighs state Rep. Joe Kiser (R-Vale). This ex-sheriff-turned-legislator has just been told the story of Charlie Mason Alston, the next man scheduled to die by lethal injection in North Carolina.

Kiser and his fellow legislators didn’t consider Alston’s story before they passed the state’s new Innocence Protection Act last July. The law allows defendants to use DNA evidence in their own defense and regulates the collection and care of DNA samples.

But that doesn’t mean it can do anything to help Alston, whose execution date is set for Jan. 11.

This week, Alston’s attorneys continue their search for DNA evidence they believe will exonerate their client. Unfortunately, the Warren County Sheriff’s Department says it can’t find the skin and blood samples taken from underneath the fingernails of murder victim Pamela Perry.

The 26-year-old waitress was beaten to death with a claw hammer on the night of Nov. 30, 1990. A medical examiner took fingernail scrapings during the autopsy because it appeared as though Perry had fought her assailant to the end.

The skin and blood removed from Perry’s nails could contain DNA that matches the DNA of her killer. But the samples were never tested. In 1996, when Alston’s attorneys asked to see the samples while appealing their client’s conviction, all the Warren County sheriff could do was shrug his shoulders. His department had somehow misplaced the one piece of evidence that could definitively prove Alston’s guilt or innocence.

“That never happened to me and I’m glad it didn’t,” says Rep. Kiser, recalling his work with DNA evidence while sheriff of Lincoln County.

Human tissue left at a crime scene can provide a window into the unique genetic makeup of specific individuals. But many states lack laws governing its collection and use in the justice system.

“We’re kind of ahead of the game on it,” says Deborah Ross, executive director of the North Carolina ACLU. “It’s way worse in other states.”

North Carolina’s new law attracted the support of legislators from across the political spectrum, partly because it was a criminal justice bill lawmakers could back without the baggage of appearing either too hard or too soft on crime.

“This was a great new tool that will bring the truth to light and that’s why I got behind it,” says Sen. Hamilton Horton, a Republican from Winston-Salem. Under the new statute, defendants like Alston are guaranteed the right to have DNA evidence tested, both before and after their conviction.

But the Innocence Protection Act didn’t take effect until Oct. 1 of this year. So when Sen. Horton says the bill is “a win-win for all,” he’s not including Alston. Not only has the state lost the DNA evidence from Alston’s case, but it appears as though the new DNA law–as it’s currently being interpreted by the courts–was enacted too late to help him.

N.C. Senate Minority Leader Patrick Ballantine (R-Wilmington) insists the legislature had to set a start date for the law in order to avoid “an avalanche” of pleas from inmates wanting to make claims about DNA evidence from cases long since closed.

“If you don’t, then every prisoner will want to be set free because they’ll say DNA wasn’t taken” or tested during the course of their trial, says Ballantine.

Most law enforcement agencies around the country didn’t begin collecting DNA evidence for use in court until the late-1980s. Ballantine says North Carolina is just now getting up to speed, so there will be inmates who will not benefit from the new law.

“I wish we’d done it earlier,” laments Rep. Joe Hackney, the Chapel Hill Democrat who was one of the sponsors of the bill. “I guess that’s an appropriate thing to say given the circumstances.”

For Alston, those circumstances appear more desperate by the day. On Dec. 17, a superior court judge in Warren County rejected Alston’s plea for relief under the DNA statute. With no help from the courts and so little time left before his client’s execution date, Attorney Mark Edwards thinks Alston’s fate will likely be determined on Jan. 8.

That’s the day Edwards expects Gov. Mike Easley to hear his plea for clemency. Edwards will be given an hour to make a presentation in the governor’s office. The Durham attorney will argue that if the Innocence Protection Act is to be enforced, then there must be some accommodation made to defendants whose evidence is lost.

“The state can’t simply say if it’s lost, then tough luck,” says Edwards. “There has to be a punishment to the state if they lose evidence.”

In other words, if Alston is put to death on Jan. 11 without having the chance to exonerate himself through the testing of those lost fingernail scrapings, the state is leaving open a terribly grim possibility.

Some day down the road, inside the Warren County Sheriff’s Department’s evidence room, Edwards says, “Somebody’s going to move a box and say, ‘Whoops, here they are.’”

But by then, Alston may already be dead. EndBlock

The Charlie Alston Index

Amount of physical evidence used to tie Alston to the murder of Pamela Perry: 0

Number of witnesses who lied to investigators, but were still allowed to testify against Alston: 1

Number of crack dealers who testified against Alston in exchange for leniency in the prosecution of their own crimes: 2

Number of attorneys who, while representing Alston during his appeals, were smoking crack, involuntarily committed to a mental hospital and disbarred: 1

Number of days from Christmas that Alston has to live if the governor or the courts refuse to stay his execution: 17

Number of people in North Carolina executed since 1977 whose attorneys were later disbarred: 4

Number of times Alston has confessed to killing Perry: 0

Number of murder suspects freed in North Carolina by DNA evidence in the past year: 2

Number of inmates released from death row since 1973 nationwide: 98

Number of those inmates who were released because of DNA evidence: 11

Number of times during a recent press conference that Alston’s attorney, Mark Edwards, said, “This case scares the shit out of me. … It should scare the shit out of everybody in the state.”: 1

Numbers gathered from court documents, materials provided by Alston’s attorneys, the Center for Death Penalty Litigation and the Death Penalty Information Center.