DA responds late to new evidence in old case

Wednesday, July 7, 2004 | 8:45 a.m.

A man who claims NASA technology can prove he was too tall to have been the robber of a convenience store had his day in court postponed because the district attorney's office missed a deadline to respond to the argument.

In 2001, prosecutors used a fuzzy security videotape from a convenience store to convict and sentence Bryon Garnett, 25, to at least 40 years in prison. That same videotape ultimately could prove his innocence.

Garnett's attorney, Don Topham, from Rocky Mountain Innocence Center, a Salt Lake City-based nonprofit that looks at cases in Nevada, Utah and Wyoming, said by using a video-enhancing method developed by NASA scientists it's clear that the robber in question was 5 foot 8 inches tall, and not Garnett, who is five inches taller than that.

The district attorney's office was supposed to have responded by June 12 to the motion filed by Topham on Garnett's behalf. Prosecutors said they mistakenly waited too long to obtain the transcript of Garnett's trial, not getting it until June 24, which delayed their response until June 28.

Topham said that while he would have liked the case resolved Tuesday before District Judge John McGroarty, he understood why the judge postponed the case.

"The justice system isn't set up for cases of actual innocence," Topham said. "He (McGroarty) wants to hear from all sides and especially doesn't want a procedural method to deny someone justice."

Topham said Garnett is "angry and doesn't understand why he's in prison."