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Convicted Robber passes 3 lie detector polygraph tests
A federal jury convicted Fasano of robbing a Morton bank. Fasano says he's not guilty.
On May 14, 2002, a bandit robbed Citizens State Bank in Morton, discarding a hard hat, shirt and sunglasses he wore during the heist. Witnesses identified Fasano as the robber although his skin tone, height and weight don't seem to match the description given authorities.
Fasano has since passed a lie-detector test, but U.S. District Judge William Barbour Jr. rejected his request to test the bank robber's disguise for DNA. Fasano has appealed to the 5th U.S. Circuit Court of Appeals.
The federal Innocence Protection Act allows inmates to seek DNA testing that could help prove their innocence.
Fasano's attorney, Tom Lowe of Jackson, said Barbour has "done his best to interpret the statute out of existence."
Under the 2004 federal law, a judge must order DNA testing under these conditions: if an inmate swears, under penalty of perjury, he or she is innocent; if the evidence was gathered as part of the investigation; if the government possesses the evidence and it hasn't been tampered with; if the inmate hasn't knowingly waived his or her right to DNA testing; and if the proposed testing may produce new evidence that would "raise a reasonable probability" the defendant is innocent.
The disguise the Morton robber wore was gathered for evidence and kept in a brown paper bag.
After Fasano was convicted, his attorney, Joe Holleman of Jackson, said he subpoenaed the items to be tested for DNA, only to be told by federal prosecutors the items were lost.
The disguise turned up a year later in a prosecutor's closet -four months after Fasano left for prison in April 2006. When his attorneys inquired again, they were told they couldn't test the disguise.
In responding to Fasano's motion before Barbour to test the disguise for DNA, Assistant U.S. Attorney Richard Starrett wrote that Fasano was able to test the bank robber's disguise at the time and didn't. The DNA statute was meant to apply to newly discovered evidence, he wrote.
Barbour concluded the failure of Fasano's defense to test the disguise didn't preclude Fasano from having it tested now.
But on another point, he concurred with Starrett, who wrote that Fasano's request should be denied because the defense is unable to raise a reasonable probability regarding his innocence.
Barbour said even if another suspect's DNA were found on the disguise, it wouldn't prove Fasano's innocence because the items left by the robber could have been worn by others before the robbery took place.
All the statute requires is that DNA testing may produce new evidence, Lowe said.
"If it's the slightest chance, it should be done. All we have to do is show one circumstance under which Steve could be proven innocent."
The whole reason for the federal law is to get around any "sandbagging" that would thwart inmates from getting such DNA tests, he said.
U.S. Sen. Patrick Leahy, chairman of the Senate Judiciary Committee, told The Clarion-Ledger he is proud to have authored the legislation to enable defendants to get post-conviction DNA testing.
"As a former prosecutor, I saw both sides of the crisis that DNA testing had illuminated in clearing those wrongfully convicted," Leahy said. "The first tragic consequence was what our system of criminal justice is designed to prevent - the conviction of innocent defendants. The second was the criminal justice nightmare that the actual wrongdoer remains undiscovered, and possibly at large, committing additional crimes."
In a telephone interview from prison, Fasano said he feels he'll win his appeal to the 5th Circuit.
He could be released to a halfway house some time next year, but there are no guarantees, he said.
It's ridiculous that prosecutors claimed granting him a DNA request would set a dangerous precedent because he met all the criteria federal law requires, he said.
"If someone is innocent, it shouldn't matter. They should be allowed that opportunity. That's justice."
He said he is frustrated because he is innocent. "I took that lie detector test and passed it, not just once, but three times."
He vowed to continue to fight to clear his name. "I will pursue this till I'm an old man," he said. "I can't live knowing a felony is placed on my shoulders for something I didn't do.
"A great injustice has been done. I want to get home because I'm an innocent man, not because my time has run out."