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MEDICAL EXAMINER'S PHOTO ORDERED RELEASED BY JUDGE

In a small victory for imprisoned Western New York businessman James E. Pennington, a Buffalo judge has ordered Erie County officials to give his wife a photograph of the veteran medical examiner who purportedly conducted the crucial autopsy that led to his murder conviction.

State Supreme Court Justice John P. Lane, who has been considering the Penningtons' Freedom of Information lawsuit for the past year, Friday ordered the government to provide the couple with a work-related photograph of Dr. Sung-Ook Baik.

In line with the Penningtons' long-standing claim that a UB Medical School student, and not Baik, performed the autopsy, Lane ruled that "the photograph of a county employee" like Baik is a public record.

Noting the government has already provided Pennington's wife, Janice, with "copies of all the records she sought that the county possessed" except the Baik photo, the judge said the government can charge the couple a "reasonable cost" for the photo.

Janice Pennington, a nurse who is her imprisoned husband's sole courthouse voice in his effort to overturn his 1993 conviction, could not be reached to comment Friday.

Anne E. Adams, Baik's attorney, and assistant county attorney Andrew B. Isenberg said they are considering appealing Lane's ruling. Currently serving a term of 15 years to life in Elmira Correctional Facility, the 48-year-old Pennington, a once-successful Amherst-based landscaper, has consistently maintained he shot and killed Octavio Duran in self-defense.

The 20-year-old Olean man was fatally shot when Pennington fired his high-powered licensed pistol at him three times during a Duran-sparked road rage incident following a minor car crash caused by Duran's pregnant wife outside Eastern Hills Mall on Transit Road Feb. 12, 1992.

Duran's wife, Camille, who now lives out-of state, gave birth to the couple's only child 11 days after the incident.

Baik testified his autopsy showed Duran was fatally shot in the back. Pennington was convicted of second-degree murder on Oct. 1, 1993.

Last spring Baik, one of the area's most distinguished veteran medical examiners, submitted a signed affidavit to Lane asserting that he "personally performed the autopsy in question" and denying the Penningtons' assertion that it was done by a medical student doing degree-required work.

e-mail: mgryta@buffnews.com

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