JACKSON, Miss. (AP) — An advocacy group and the brother of an inmate scheduled for execution Tuesday have filed a lawsuit to preserve evidence in the case for additional testing, whether the man is put to death or not.
The lawsuit was filed Friday in Oktibbeha County Chancery Court, a day after the FBI said there were flaws in the "microscopic hair comparison analysis testimony or laboratory report" in the case of Willie Jerome Manning.
The agency offered to do DNA testing.
Manning, now 44, was sentenced to death in the 1992 slayings of two students. Manning says he's innocent and that hair found in one victim's car was not proved to be his.
The Innocence Project of Mississippi and Manning's brother filed the suit, which seeks a temporary restraining order that would prevent the destruction of evidence in the case.
A Jackson attorney who represents the Mississippi Innocence Project in the lawsuit said the group wants to preserve the evidence for DNA and other testing.
"We're hoping to get this evidence tested and let the truth come out," Robert McDuff said Sunday. "Hopefully, the governor or the courts will stay the execution so we can determine prior to the execution what the DNA shows. But even if they don't, there are a lot people who still want to see the evidence tested to determine once and for all who is responsible for this crime."
Manning is scheduled to die by injection at 6 p.m. Tuesday at the state penitentiary at Parchman.
The Mississippi Supreme Court on Thursday refused to stop the execution, in a 5-4 decision.
Manning's lawyers have asked Gov. Phil Bryant for a stay. Bryant spokesman Mick Bullock has said the governor is reviewing the case.
Mississippi Attorney General Jim Hood said recently that DNA testing wouldn't exonerate Manning.
"The Mississippi Supreme Court has held that the evidence is so overwhelming as to Manning's guilt. Even if technologies were available to determine the source of the hair, to indicate someone other than Manning, it would not negate other evidence that shows his guilt. He is a violent person who committed these heinous murders," Hood said in the statement.
Tucker Carrington, director of Mississippi Innocence Project, said in an email Sunday "that if someone involved in this crime is still out there, he breathes a sigh of relief every time state officials refuse to test this evidence."
Hood said in his statement Friday that "DNA testing was done after the crime was committed." McDuff said, though, that DNA testing has never been done in the case and the hair was subject to less reliable examination.
Hood said the state is prepared to conduct testing any time "there is legitimate, exculpatory evidence" but "when the defense waits until the 11th hour to raise such claims, which could not possibly exonerate their client, courts are loathe to be subjected to these types of dilatory defense tactics."
Manning, who is black, had argued that hair found in one of the victim's cars was not his.
Testing had said that the hair was from a black person, but other black people had been seen in the car, according to trial testimony.
The FBI said in letter Thursday to state officials and others that testimony that microscopic hair comparison analysis could "determine that a questioned hair originated from a particular source or an opinion as to the likelihood or rareness of a positive association" had "exceeded the limits of science."
In a letter Saturday, the FBI said it identified another error in that "an examiner cannot testify with any statement of probability whether the hair is from a particular racial group, but can testify that a hair exhibits traits associated with a particular racial group."
The Washington Post first reported Friday that federal officials were offering to test the DNA in the case. Federal officials said Manning's case was part of a broad review of the FBI's handling of scientific evidence in thousands of violent crimes in the 1980s and 1990s.
Manning was handed two death sentences for the slayings of Jon Steckler and Tiffany Miller, whose bodies were discovered in rural Oktibbeha County on Dec. 11, 1992. Each was shot to death, and Miller's car was missing. The vehicle was found the next morning.
Prosecutors said Manning was arrested after he tried to sell some items belonging to the victims.