Sunday, November 17, 2002

DNA testing can leave traces of doubt


Rape case presents dilemma: Victim is certain, science isn't

By Karen GutiÈrrez
The Cincinnati Enquirer

Popular culture puts DNA at the scene of every crime. It's the smoking gun, the ironclad alibi, the key clue on Law & Order.

But in the real world, DNA evidence can create more confusion than clarity. Exhibit one: The case of accused rapist Herman Douglas May.

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Herman Douglas May reacts after his release from prison because of DNA evidence. He had served 13 years.
(Joe Ruh photo for The Enquirer)
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Mr. May, 31, recently had his conviction thrown out after serving 13 years of a 20-year sentence. A judge said he deserved a new trial based on the results of new genetic tests. But those tests failed to prove his innocence, which has left the prosecutor in a quandary: Should he retry Mr. May or simply let it go?

The victim says she's still certain Mr. May was the man who raped her in 1988. She'll testify against him 100 times, she told the Enquirer in an exclusive interview, if that's what it takes to restore the conviction to his record. Without it, he could end up working in a school or nursing home, she says.

The Enquirer is not naming the woman because she was the victim of a sexual assault.

INFOGRAPHIC
How DNA tests work
Mr. May is equally insistent on his innocence. His release is being touted as the first success of the Kentucky Innocence Project, an effort by the state Department of Public Advocacy to free the wrongly accused using DNA evidence.

Across the country, 115 convicts have been exonerated this way. It's not clear how many of those cases involved murky test results, but in general, judges and prosecutors have rarely quibbled with DNA findings.

The May case demonstrates that for all the promise in modern technology, there is still room for doubt.

"A dozen times I've said, `Oh, to hell with it, let's set it for trial and see what happens,' " says Larry Cleveland, the Franklin County commonwealth's attorney.

Then he reconsiders.

"I want to do what's right. This guy did 13 years in jail. If he did do it, a lot of people would say he served his time," Mr. Cleveland says. "If he didn't do it, that's a terrible thing to be in jail for 13 years."

Dueling interpretations

Mr. May's defense attorneys argue that eyewitness identification is notoriously unreliable. They cite a recent revelation that the victim lied about her sexual history. And they say the DNA evidence does exonerate their client.

This summer, genetics labs concluded the following:

Two pubic hairs recovered from the scene could have come from Mr. May, who is white. One in 150 Caucasian people will have the same DNA sequence found in the hair, according to the lab, ReliaGene Technologies. No one of African or Hispanic descent is likely to have it.

A trace of male DNA found in the victim's vagina was definitely not Mr. May's.

This last finding might have been enough to prove his innocence. Instead, it prompted an admission from the victim: Two days before the rape, she had consensual sex with someone else - a fact she concealed during her 1989 testimony.

The consensual partner, an African-American, was tested this summer. Conclusion: He could have been the source of the DNA in semen found on the victim, which almost certainly came from a black man.

In September, Mr. May was released by Franklin County Circuit Judge Roger Crittenden, who said the verdict probably would have been different if the DNA results had been available in 1989.

Mr. Cleveland disagrees.

The victim testified her attacker had trouble achieving penetration, and the assault was interrupted by police about 10 minutes after it began.

Under such circumstances, it's no surprise that little, if any, of the rapist's DNA was found, Mr. Cleveland says. To him, the physical evidence is as inconclusive today as it was in 1989.

Not enough cells

By now, the public is used to hearing that DNA works miracles.

World Trade Center victims are identified through cells left on combs. TV dramas like CSI: Crime Scene Investigation make it all look easy.

But the reality is this: To place an individual at a crime scene, scientists must find a sufficient amount of the right kinds of cells.

Hair, for instance, is dead material that lacks nuclei, says Karen Bruewer, a forensic scientist with Indiana State Police.

Hair cells yield some genetic information but not enough to pinpoint individuals. When investigators sought the brushes of Sept. 11 victims, they were hoping to find not just hair, but hair roots, with crucial skin cells attached.

In the Kentucky rape case, physical evidence was scant. Two labs came up with tantalizing clues about the perpetrator, but they couldn't produce a full genetic profile - the kind that generates a 1-to-100-billion match.

The same has occurred in other DNA exonerations nationally. It's not clear, though, exactly how many lacked full genetic profiles. Such a detail isn't tracked by the National Innocence Project, which directs legal work on many of the cases.

Years after a crime, rape evidence is rarely ideal or even available, says Aliza Kaplan, deputy director of the national project.

"The truth is 115 people have been exonerated, and except for a few cases like this, nobody questions them," Ms. Kaplan says.

`Shut up or I'll kill you'

The Kentucky case began May 22, 1988, when the victim was 19.

Her small Baptist college had just let out for the summer. On a whim, she decided to stop by an old classmate's home in Frankfort.

Around 3 a.m., the teenager knocked on her classmate's door in a semi-lit subdivision. No answer. As she stood there, a young man came around the side of the house. They made eye contact as he walked through the front yard and toward the street.

Thinking the stranger had left, the victim started to leave a note for her friend. Suddenly, the same man rushed at her from a stand of trees. He punched her in the face, dragged her into the shadows between two houses and began pulling off her clothes.

Tearfully, she described the assault to the jury.

"Shut up, b - - - -," he growled. "Shut up or I'll kill you, because I have a knife, and I'll stab you."

He had trouble becoming erect but eventually achieved penetration, the victim said. She did not know whether he ejaculated. He pulled her hair, punched her again, jabbed fingers in her swollen eye and forced her to perform oral sex.

Across the street, a neighbor thought she heard something and called police. Officers found the victim naked, bloody and sobbing.

"It was like nothing I had ever run into in my 21 years of law enforcement," a Frankfort police sergeant testified.

The perpetrator got away. But over the next hour, officers came across a potential clue: That night in the same subdivision, someone had smashed a car window and stolen a guitar and amplifier.

Guitar linked to suspect

Herman May Jr., then 17,became a suspect about a month later when the guitar turned up at a pawnshop and was traced to him. He told police he had taken it from an acquaintance's vehicle a few days before it was pawned.

At the time, Mr. May lived with his parents and didn't have a car. To get to a shopping center in the area, he sometimes cut through the neighborhood where the attack occurred.

The victim identified him from a photo lineup, and a jury found him guilty of first-degree rape and sodomy. He got 20 years.

During the three-day trial, the defense hammered away at weaknesses in the case. Among them:

Police consistently described the suspect as having dark brown hair, but Mr. May's hair was light red. The victim testified she told police the hair was like her mother's, which is red.

A Frankfort detective flew with the photo lineup to Los Angeles, where the victim was on vacation. Because he took such pains, she must have felt pressure to identify someone, the defense argued.

She first narrowed the eight pictures down to three, then picked Mr. May, saying she would never forget his "mean look," thin face and pointy chin. The defense questioned this identification.

Mr. May had an alibi: His parents testified he arrived home shortly after midnight that night.

They remembered the time, they said, because he was on a curfew set by the correctional school he was attending.

Mr. May's juvenile record is not public and was not discussed further at the trial.

Hair comparison clinched

If anything sealed his fate, it was the testimony of police lab technician Edward Taylor. Under a microscope, he compared the two pubic hairs to Mr. May's.

"In my professional opinion, it was an excellent match," he said.

The colors were identical. Both hairs had slightly split tips, and both had debris adhering to the shaft, Mr. Taylor said.

Microscopic comparison was the only option available at the time. Today, such testimony would be greeted more skeptically, says Dr. David Foran, a forensics professor at Michigan State University.

In hair comparison, the word "match" is virtually forbidden in court these days, and the debris comment is meaningless, he says. Lint or other kinds of material can be found on lots of people's hair, he says.

But another forensic scientist found the evidence more convincing.

If the recent DNA tests don't exclude Mr. May, and the microscopic comparison found similarities between the hairs, the findings reinforce each other, says Max Houck, a former FBI analyst now at West Virginia University.

He's concerned about exonerations like Mr. May's, in which the absence of DNA is taken to mean the suspect wasn't there.

"You can't just say, `Well, there's no DNA evidence, so we'll let him go,' " Mr. Houck says.

Mr. May could always be retried. But from the prosecution's perspective, the biggest problem with the case today is the victim's perjury.

In 1989, she testified she had last had sex in April, more than a month before the rape. She now says her last encounter occurred two days before the rape.

She lied because she was afraid of what the jury would think of her, she . said.

At the time, rape crisis centers were buzzing about a Florida juror who said a rape victim "asked for it" by the way she dressed. The Kentucky victim was warned, she says, that the defense would try to attack her character.

Today, attorneys from the Kentucky Department of Public Advocacy are attacking her lie. The victim's testimony led jurors to believe the trace of semen at the scene had to come from Mr. May, they say.

The victim says she feels terrible about the lie and its impact, because she knows Mr. May is guilty.

"When someone is there killing you, raping you, you don't forget it," she says.

Support for angry inmate

Inmate No. 104060 did not have an easy time at the Kentucky State Penitentiary.

"When I first got locked up, I was mad, angry, every screwed-up emotion you can imagine," Mr. May said in an interview.

To be eligible for parole, he had to complete a treatment program that requires sex offenders to admit their guilt. He did so because he had tried the truth numerous times, and nobody would listen, says his attorney, Marguerite Thomas.

Even after completing the program, Mr. May was denied parole, based in part on offenses he committed while in prison, a state corrections official said.

His infractions included disobeying orders, participating in "loan sharking" and seriously injuring another inmate in a fight, prison records show.

But his supporters see a different Herman May: a soft-spoken man incapable of a crime like rape.

"His mother must have done a great job for 17 years for him to be this nice of a person after 13 years in prison for something he didn't do," says Debbie Davis, a law graduate from Northern Kentucky University who helped with the case.

Mr. May says he has no hard feelings toward his accuser.

"I can't," he says. "The lady went through something that was terrible. It had to be, for her to say I was the one who did it."

He doesn't understand all the ins and outs of the DNA evidence, he says. But he can live with science that is too ambiguous for TV.

"The people who know me, the people who love me, they know I'm innocent," he says.

E-mail kgutierrez@enquirer.com



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