Original Article Inmate gets new sentence hearing Judge questions evidence at trial Flynn McRoberts Chicago Tribune Dec. 25, 2004 12:00 AM A decade after sending a man to death row, an Arizona judge on Thursday granted him a new sentencing hearing based on inconclusive DNA tests and questions about the bite mark evidence used to convict him. On his last day before retiring from the bench, Yuma County Superior Court Judge Thomas Thode ruled that the new DNA tests and other evidence were "insufficient to exonerate" Bobby Lee Tankersley of the gruesome rape and murder of a 65-year-old woman. But the judge's ruling questioned the bite-mark evidence he had used to sentence Tankersley to death for the 1991 slaying of Thelma Younkin, Tankersley's neighbor in a low-budget motel along what was then Yuma's skid row. "The DNA evidence standing alone does little if anything to exculpate the defendant from his guilt, but the inconclusive DNA as to critical bite marks may be argued to diminish the appearance of extreme brutality," Thode wrote. "The new DNA evidence also raises other questions as to what happened the night of the murder." During a recent hearing held over several days, DNA analysts disagreed over whether they could exclude Tankersley as a contributor to genetic material swabbed from marks on Younkin's body. A jury convicted Tankersley in 1993 of raping Younkin and strangling her with the oxygen tubing she had used to help her breathe. At the trial, a forensic dentist testified that he could match Tankersley's teeth to numerous purported bite marks found on her body. As Thode noted in his ruling Thursday: "The bite marks were a prime factor in this court's previous decision to exact the ultimate penalty." But it later became clear that the same dentist, Dr. Raymond Rawson, helped send an innocent man, Ray Krone, to Arizona's death row. A former postal worker, Krone spent more than a decade in prison before DNA testing proved Rawson wrong, connecting another man to the crime and exonerating Krone. A Chicago Tribune series earlier this year, Forensics Under the Microscope, showed that DNA tests such as those in the Krone case have revealed that even leading bite-mark experts make false matches. Given the similarities in Rawson's testimony at the trials of both Krone and Tankersley, prosecutors asked the Arizona Supreme Court to order new DNA tests in the Tankersley case after Krone was released from prison in 2002. During the recent hearing, Thode heard competing interpretations of those test results. The tests were ambiguous because they involved mixtures of multiple genetic profiles. At the center of the disagreement was how confident forensic analysts should be in linking a suspect to a crime when small amounts of DNA from such mixtures are involved. In Thursday's ruling, the judge also said he had re-examined evidence of Tankersley's alcoholism and "blackout(s)" presented at a hearing several years ago. John Todd, the assistant Arizona attorney general who presented the state's case, said the judge had "correctly found that the new evidence did not warrant a new trial, (but) that he felt more comfortable having a jury of Mr. Tankersley's peers impose the appropriate sentence." Todd said the defense could immediately petition to review the judge's finding. Thode set a hearing for Jan. 19 to consider scheduling and other issues for the resentencing hearing - in front of a new judge, since Thode retired Thursday.