The Dairy Del Ice Cream shop on 7th Street Road in Louisville that Virgil Harris owned before his murder in 1979. (Jefferson Circuit Court clerk)

Brian Keith Moore has spent most of his life in prison, serving a death sentence for the 1979 murder of Virgil Harris.?

From the beginning, Moore said he was framed by an old friend. He’s spent decades filing appeals and fighting to get out of prison.?

Over the years, judges acknowledged the delicate balance between his guilt and innocence — that the evidence he killed Harris is equal to the evidence he didn’t — and that DNA testing could tip the scales.?

Now, Moore and his defense attorneys from the Kentucky Department of Public Advocacy say they have DNA test results that show Moore did not wear the jacket prosecutors said the killer wore — a claim pinned on Moore during his initial trial in 1980 and again in a 1984 retrial.?

David Barron, Moore’s attorney, wrote in an August motion that the results “show exactly what Moore has said for more than four decades.”?

“It should therefore be a simple conclusion that Moore’s convictions should be vacated,” Barron said in the motion.?

Jefferson Circuit Court Judge Annie O’Connell will decide what happens next. She did not immediately respond to a request for comment.?

Kentucky Attorney General spokesperson Kevin Grout told the Kentucky Center for Investigative Reporting the office will work with the Jefferson County Commonwealth’s Attorney to oppose the motion to vacate Moore’s conviction. But in court filings, Attorney General Rusell Coleman said the state’s attorneys are juggling a heavy caseload and need time to review the case.?

O’Connell gave Coleman until February 2025 to respond.?

Every day counts for Moore, 66. He bounces between a hospital and the Kentucky State Reformatory in LaGrange. Medical records show he suffers from high blood pressure, high cholesterol, diabetes and acute respiratory failure. He said several surgeries meant to fix degeneration in his spine have made the problem worse. He’s in constant pain, depends on a wheelchair, and he said he can’t write grievances because he can’t close his right hand around a pen.?

Moore’s attorneys said in court documents that, if released, Moore would spend his days at an assisted-living facility. He worries he could spend the rest of his life paralyzed from untreated medical ailments.?

“It’s damned if you do, damned if you don’t,” Moore said in an interview earlier this year over a video visit from a bed at the prison. “Even if I’m found not guilty and turned loose and get beaucoups of money and all this type shit, none of that’s no good if I’m paralyzed from my neck down.”?

Moore is one of 25 people on Kentucky’s death row. If Moore’s conviction was vacated today, his would be the 13th capital case in Kentucky overturned based on DNA evidence, according to the Kentucky Innocence Project. Nationwide, only two people to have cases overturned spent more time on death row than Moore, according to the Death Penalty Information Center, a Washington D.C.-based nonprofit that provides data and analysis concerning capital punishment.?

Moore’s case highlights how courts and lawmakers prioritize process and finality over fairness and due process, said Robin M. Maher, the executive director of the Death Penalty Information Center.?

“Even if you are the most ardent supporter of the use of the death penalty, nobody wants to see an innocent person executed, and we have this sort of faith in our justice system that the appellate process is going to be able to identify the mistakes and correct them before we have the ultimate injustice,” Maher said. “But the reality is, the law is not really set up to favor innocent people. It’s really set up, after conviction, to uphold that conviction.”?

This year, 19 people have been executed in the United States. Last month, prison officials in Missouri executed Marcellus Williams, despite evidence of his innocence so strong the victim’s family and prosecutors who brought the case against Williams asked the court to stop his execution.

The Williams case belies a simple fact, Maher said: As long as America punishes people by killing them, courts will get it wrong and we will execute innocent people.?

“If we are uncomfortable with that fact, then we need to rethink what we’re doing,” Maher said.?

Dana Maley, one of Virgil Harris’s granddaughters, wrestles with those same questions. Maley ran for Florida state Senate in 1994 and published campaign material with Moore’s face on it, emphasizing her belief in the death penalty and desire to limit the number of appeals convicted people could file so cases don’t drag on for decades.?

“When I did feel strongly about it, when I was running for office, I felt like, what does society owe somebody who is rightfully convicted of a heinous crime?” Maley said in an interview with KyCIR.?

Now, Maley said she’s not so sure. The death penalty has been misapplied, she said, and is prone to inconsistency and bias. Maley said she’s never doubted Moore’s guilt — he’d been convicted, after all. She’s put Moore’s fate out of her mind long ago and doesn’t know what to make of the new evidence.?

“Whatever happens to him, happens to him,” Maley said. “I wouldn’t be fighting heavy duty one way or the other at this point.”?

A birthday murder?

Maley remembers “Pa Pa Virgil” as a hard worker and tolerant man who was active in the church and community.?

He owned Dairy Del Ice Cream on 7th Street Road in Louisville, where it still stands today. Maley and her sister worked at the shop for a few summers as teenagers, taking the bus from St. Matthews.?

August 10, 1979 was Harris’s birthday. He started his day at the Dairy Del, turning on equipment and straightening things out before going to buy bananas at the old A&P Grocery. As he left the store just before noon, a witness saw someone wearing a mask kidnap Harris at gunpoint.

The kidnaper drove Harris and his red wine colored 1978 Buick Electra to a secluded spot on Jefferson Hill Road. They pushed Harris down an embankment, shot him four times in the head, stole his watch and a bag of cash meant for the bank.?

When he didn’t show up for his birthday dinner that afternoon, his family started to worry. His son Jerry Harris, a popular police officer at the training academy, reported him missing around 8 p.m. and told fellow officers to be on the lookout.?

But by then, prosecutors were already working out a deal for Moore’s arrest.?

A few hours after Virgil Harris was killed, an attorney representing a man named Kenny Blair called an assistant Jefferson Commonwealth’s Attorney looking to make a deal.?

Facing eight years in prison on robbery and burglary charges, Blair offered information about Harris’s murder in exchange for a lighter sentence.?

He pinned the killing on his then-friend, Brian Keith Moore.?

Moore met Kenny Blair in 1975. Blair was a full 10 years older and willing to buy beer for Moore and his underage friends.?

Years later, a psychologist would say a chaotic childhood left Moore searching for guidance, ready and willing to fall in line behind anyone who projected paternalistic authority.

Blair, who friends called “Big Man” or “Jesus”, offered that, in his own way. He introduced Moore to hard drugs and quick scores, showing him how to steal cars and strip them for parts.?

Police arrested Moore in the early morning hours of August 11, the day after Harris’s murder, as he and Blair pulled into a parking lot at the Shady Villa apartment complex in Newburg.?

Moore said he remembers one officer running a pistol in front of his face as he was handcuffed, telling him “you have no idea who that old man you killed was.”?

Moore said that was the first he heard of a murder.?

Did they get it right??

At trial, prosecutors had a stack of evidence they said pointed to Moore’s guilt.?

A witness said they saw Moore driving Harris’s car after the murder. Police said they saw Moore tuck a gun under the seat of Blair’s car when they pulled into the apartment complex and they found lead residue from a recently fired gun on his hands. He also had Harris’s watch and car keys.?

Three Jefferson County Police detectives testified that Moore confessed to killing Harris during an interview a few days after his arrest while a tape recorder was turned off. But Moore said he never confessed.

KyCIR requested the original investigative case file, but it’s gone. Police officials provided a check out slip showing a county police detective took the files in 2001, but they were never returned.?

The Jefferson County Police Department handled the investigation. The department merged with the Louisville Police Department in 2003.?

Moore was convicted and sentenced to death in 1980, but that verdict was overturned because of improper comments made by a prosecutor during closing arguments. A jury found him guilty again in 1984.?

But even in 1984, prosecutors Joseph Gutmann and Larry Simon acknowledged the strongest evidence against Moore was circumstantial.?

“The case came down to whose story you found more convincing, Kenny Blair’s or Brian Keith Moore’s,” Joseph Gutmann, the assistant commonwealth attorney who prosecuted Moore’s second trial, said in a recent interview with KyCIR.?

As Moore tells it, he said he woke up around noon the day of Harris’s murder to Blair walking into the apartment with some groceries and a money bag.?

Moore said Blair told him he had stolen a car — a 1978 Buick. Not surprising, Moore said, the two spent the previous week partying and committing petty crimes like stealing car radios.?

Moore said Blair gave him a watch and asked him to drive the car out to his mother’s house in Shepherdsville that afternoon to drop off the groceries.?

Moore and another witness testified that Blair borrowed Moore’s gun the night before the murder and returned it the following afternoon.?

Looking back, Moore is certain Blair set him up. But he’s not sure Blair committed the murder. The clothes prosecutors said the killer wore were too small for both men, according to Moore.?

Blair died in 1995. His side of the story is found in court transcripts reviewed by KyCIR. “I might have committed a few crimes, but I’ve never hurt nobody,” Blair testified.

Blair said Moore told him he killed a man at Jefferson Memorial Forest and took Blair to the location of the body. Blair said he called his attorney to offer information because he didn’t want to be implicated.?

But in recent court filings, Moore’s attorney said Blair’s cooperation with police and prosecutors — he arranged the arrest, led police to the body and provided the clothes allegedly worn by the murderer — left “plenty reason to believe” he set up Moore.?

Moore’s attorneys in the years after the murder found 10 people willing to testify that Blair confessed to killing Harris. But Blair denied ever confessing.?

During the trials as many as 10 uniformed police officers sat in the courtroom, something Moore’s defense argued could intimidate the jury or weaponize goodwill towards police and stack the deck against Moore.?

Gutmann and Simon both told KyCIR they felt pressure to secure another conviction and death sentence for Moore during the 1984 retrial.

“Because the family of the victim, you know they are people in law enforcement,” Simon said. “And it was sort of like the family of the victim was expecting this to happen again.”?

Gutmann and Simon said they both now oppose the death penalty.?

Gutmann thinks about Moore from time to time, and the other men he helped sentence to death. He wonders: did they get it right??

“I was naive to think that we could never get it wrong, that, in other words, somebody could never be put to death mistakenly,” Gutmann said. “And I don’t believe that anymore.”?

Harmless error?

During his 1984 closing argument, Gutmann said the prosecution’s most important witness was a clerk at a Drivers Licence Bureau who said Blair was in her office around 11 a.m. the day of the murder.?

For a moment, Blair had a rock solid alibi from a civil servant.?

But during the appeals process, Moore’s attorney Bill Yesowitch with the state’s Department of Public Advocacy found a police report in the case file that said Blair was in the office at 1 p.m., two hours later than the witness claimed.?

“When I saw that police report, I mean all kinds of bells and whistles went off,” Yesowitch said.?

Yesowitch based an appeal on this new information in 1995, arguing Moore’s previous attorneys failed to follow-up on this key piece of evidence and deprived Moore of a fair trial.?

The Kentucky Supreme Court in 1998 ruled that Moore’s defense counsel was deficient when it failed to challenge this testimony, but it did not harm Moore’s case. The court upheld the conviction.?

Yesowitch, now retired and living in Florida, is still convinced of Moore’s innocence. Yesowitch said the Kentucky Supreme Court’s ruling chalks up mistakes made by Moore’s earlier attorneys as a “harmless error.”?

“How do you have a harmless error in a death penalty case?” he said.?

An execution delayed?

David Barron calls the murder of Virgil Harris a “real life who-done-it,”one that could lead to the execution of an innocent man.

Barron took over Moore’s case in 2005 and focused on getting DNA testing on clothes the murderer was allegedly wearing — a suit jacket, floral shirt and a pair of black shoes.?

Moore said the outfit wasn’t something he’d wear. Plus, the pants, a size 34 waist, were six inches smaller than the pants Moore wore the day he was arrested.?

But days before Barron filed a motion in court for a judge’s order to do DNA tests, Kentucky Attorney General Greg Stumbo wrote a letter to Gov. Ernie Fletcher asking to schedule Moore’s execution in April 2006.?

This came after the U.S. Court of Appeals for the 6th Circuit rejected Moore’s request for relief from a federal judge a few months earlier — exhausting his opportunities to appeal his conviction.?

“It was our office policy to try and push those death penalty cases, because they had just been in the process so long,” Stumbo said in an interview with KyCIR.?

Barron requested the execution be put on hold while the DNA testing worked its way through the court.?

Stumbo didn’t work on Moore’s case directly, he said, but he doesn’t harbor any doubts about the conviction his office secured. Two sets of jurors sentenced Moore to death, he said, and the new DNA evidence doesn’t exonerate Moore.

“This guy’s argued this DNA crap, it looks to me, to excess,” Stumbo said. “Just because the Commonwealth thought he was wearing those clothes, maybe he was, maybe he wasn’t, that doesn’t exonerate him.”?

Stumbo’s firm belief in the death penalty stems from his faith in jurors’ ability to come to the right conclusion.?

But two months after Stumbo asked to schedule Moore’s execution, Barron talked to a man who served as a juror on the 1984 trial, Geoffrey Ellis. Barron told Ellis what they’d learned since the initial trials — how Moore could be innocent.?

Ellis, a well-known preacher and community leader in Louisville until his recent death, penned a 12-page affidavit questioning the conviction.?

“Based on the evidence brought to my attention after the trail and comparing that information to the evidence presented at trial, I have doubts about Brian Keith Moore’s guilt,” Ellis wrote. “The now known contradictions on this important issue are important to this case and whether Brian Keith Moore should have been convicted.”?

KyCIR talked with Ellis by phone before his death. He declined to comment further.

Can DNA tip the scales??

Jefferson Circuit Court Judge James M. Shake ordered DNA testing a month after Stumbo tried to schedule his execution.?

“The court finds the evidence set forth above is equally consistent with Moore’s assertion that he was set up by Blair and his girlfriend,” Shake said in his ruling.?

Shake wrote that DNA testing could help shift the balance in Moore’s favor.?

Prosecutors challenged his decision, and the case went to the Kentucky Supreme Court, which upheld Shake’s order and added there was even more evidence than Shake listed to “support Appellant’s [Moore’s] theory that he had been framed.”?

The judges said if testing excluded Moore as a source of the DNA, it would demonstrate he wasn’t wearing the clothes the lower court had already decided the murderer was wearing.?

But by then, the pants and shoes had gone missing, according to a response filed in court by the state crime lab.?

Tests on the jacket and floral shirt were inconclusive because the items didn’t contain enough biological material.

Barron, Moore’s attorney, then asked for more advanced DNA testing by a private lab.?

But Judge Shake retired without scheduling a hearing on the request. There’s been little movement in the case since then, as the DNA testing hung in limbo.?

Earlier this year, Moore’s defense team obtained an order from Judge O’Connell to release the evidence to a private lab for testing.?

The results show Moore is not the source of the DNA on the suit jacket. The results did not identify who the DNA belonged to.?

In August, Barron filed the motion to vacate Moore’s conviction based on the test results. The Jefferson Circuit Court and the Kentucky Supreme Court have already ruled a DNA test that backs Moore’s claim would have likely changed the outcome of his trial, Barron argues in the motion.?

“The only missing link then was that the DNA testing had not been [completed] and thus we did not have the results,” Barron wrote.

Moore reckons the first 20of his sentence were fair game, karmic retribution for his years of lawlessness.?

But Moore said he does not want to die in prison for a crime he insists he didn’t commit.?

“Anything I’ve done wrong, it’s been well paid for,” Moore said. “I didn’t kill this guy. So, if I was to die tomorrow, I would go knowing that I didn’t do this. And if there’s a higher power, he knows I didn’t do this.”

This story?is republished from the Kentucky Center for Investigative Reporting and Louisville Public Media.?