The Associated Press

AKRON - Words in a diary have freed a man from prison five years after a jury convicted him of rape.

"I'm happy to be out. It's been five long years," Nathaniel M. Lewis, a former University of Akron football player, said Tuesday. "It's hard to be in the joint for something you didn't do."

Prosecutors dismissed their case Tuesday, but the real turning point for Mr. Lewis came two weeks ago when a federal appeals court said he was denied a fair trial in 1997.

The 6th U.S. Circuit Court of Appeals in Cincinnati ruled that a judge should have allowed the jury in the Lewis trial to see writings in his accuser's journal that hinted that the sex was consensual and she had a motive to charge him with rape.

In her diary, his accuser wrote she was sick of her sexual encounters with men but that she was "just not strong enough to say no to them."

"This is where it ends," she wrote, an apparent reference to her charges against Mr. Lewis.

The judge excluded the passage because of a state law that prohibits defense attorneys from using an accuser's sexual history to discredit a rape charge.

Mr. Lewis and the woman were friends on campus. They went to her room in October 1996 to exchange music CDs, and had a sexual encounter. She told police he had raped her, but he contended the sex was consensual.

In court Tuesday, Mr. Lewis hugged his attorney, Kirk Migdal, and flashed a smile to his father and other friends and family when Judge John Adams ordered him released.

Mary Ann Kovach, chief assistant Summit County prosecutor, said her office decided to forego a second trial because Mr. Lewis' one-time accuser is refusing to testify at a second trial.

The woman, now 24, married and living in another state under a different name, still maintains she was raped. But without her testimony, prosecutors cannot pursue a retrial, Ms. Kovach said.

"She said she's moved on with her life. It's been five years and she has no desire to come back for another trial," Ms. Kovach said.

The Ohio Attorney General's office has decided not to seek an appeal, spokesman Joe Case said Wednesday. It would have been up to Ohio Attorney General Betty Montgomery to appeal the case.