DATE: Thursday, June 26, 1997               TAG: 9706260406

SECTION: LOCAL                   PAGE: B8   EDITION: FINAL 

SOURCE: BY LAURA LaFAY, STAFF WRITER 

DATELINE: VIRGINIA BEACH                    LENGTH:   56 lines

JUDGE REJECTS NEW DNA TEST FOR O'DELL PROSECUTION LAWYERS REQUEST AN EXECUTION DATE OF JULY 23 FOR WOMAN'S KILLER.

A Circuit Court judge refused Wednesday to allow additional DNA testing in the case of condemned murderer Joseph Roger O'Dell.

Because the evidence in the case was released for testing once before, wrote Circuit Judge Frederick Lowe, it is ``suspect and possibly tainted.''

O'Dell could be executed as early as July 23 - the date requested by lawyers for the state during a telephone hearing with Lowe Wednesday afternoon.

O'Dell's attorneys want the date pushed back to August. But if August is inconvenient for the commonwealth, Lowe indicated, the July 23 date would be accepted.

O'Dell, 55, was sentenced to death for the 1985 murder of Helen Schartner outside a Virginia Beach nightclub. The case has generated 11 years of appeals, two trips to the U.S. Supreme Court, unprecedented international attention and - just last week - landmark Supreme Court case law.

O'Dell, who insists he is innocent, persuaded a millionaire philanthropist to pay for DNA testing of bloodstains on his clothing in 1989. But the results of those tests - specifically one of a stain from his jacket - are in dispute.

While there was no match from a shirt stain, the lab said DNA from the jacket stain matched DNA from Schartner's blood. Experts called at a federal hearing, however, termed those results ``inconclusive.''

Prosecutors have argued that the test results prove O'Dell's guilt. Advocates for O'Dell have maintained that the only conclusive DNA evidence came from the shirt stain and it shows he is innocent.

Federal judges have been unmoved by O'Dell's claims of innocence. O'Dell's guilt ``has been established,'' wrote U.S. Supreme Court Justice John Paul Stevens in a dissent to a decision published by the high court last week.

But O'Dell has not given up. Because DNA tests available now are more sophisticated than those in 1989, O'Dell's lawyers earlier this month asked Judge Lowe to release vaginal and anal swabs taken from the victim for additional analysis.

The results of the analysis would be used in O'Dell's petition for clemency from Virginia Gov. George F. Allen, the lawyers told Lowe.

In a three-page ruling released Wednesday, Lowe said matters pertaining to O'Dell's clemency petition are the province of the governor's office, not the court.

``Clemency,'' he wrote, ``. . . is a function of the executive branch of government. The procedures and evidence required for executive clemency are the responsibility of the governor's office.''

Lowe's refusal to allow the testing may be based on an improper standard, according to one of O'Dell's lawyers, Richmond-based Michele Brace.

``The judge seemed to be saying that he would not allow access to the materials because, if tests were performed, they might not meet the criteria for admissibility,'' said Brace.

``But that is the standard for admission of evidence. No one has asked to admit evidence. They asked to test evidence.'' KEYWORDS: DEATH ROW

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