A judge said Friday he will decide in several days whether to change his mind about releasing from prison a man convicted of rape then apparently exonerated based on new DNA evidence.

Roger Crittenden, circuit judge in Franklin County, last month granted a new trial to Herman May, who was convicted in 1989 of raping a 19-year-old woman in Frankfort. Mr. May, who has consistently denied the crime, has served 13 years of a 20-year sentence.

Attorneys with the Kentucky Innocence Project recently arranged for more sophisticated DNA testing of the rape evidence than was available in 1989. When the results appeared to exonerate Mr. May, the victim came forward to say — contrary to her testimony at the original trial — that she had consensual sex with another person days before the rape. This complicated the case and made additional DNA testing necessary

Based on the results, Judge Crittenden said a new trial was warranted and released Mr. May. But the victim still claims he was her assailant, and at a hearing on Friday, Commonwealth's Attorney Larry Cleveland argued the new tests do not completely exclude Mr. May.

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