New DNA Evidence May Absolve Inmate in 1988 Rape Case

Just moments before a Riverside judge sentenced him to 45 years in prison for rape and robbery in 1988, Herman Atkins proclaimed his innocence and said only he and God knew it.

“I have no way of proving that at the present moment,” Atkins lamented. Then, he wondered aloud what it would be like “when the truth has been resolved” and someone would have to apologize to him and his family “for putting you through what we did.”

That moment may soon arrive for Atkins.

New DNA tests of semen samples on the rape victim’s sweater clearly demonstrate that he could not have committed the crime, according to papers filed by his lawyers in Riverside County Superior Court on Tuesday.

If the test results are confirmed, Atkins could become the 67th person in the United States--four of them in California--released from prison as a result of DNA tests establishing their innocence.

The testing was done by Edward Blake, a forensic scientist in Richmond, Calif., who frequently works for law enforcement agencies but has helped secure exonerations for about two dozen people across the country using DNA evidence. FBI scientists are retesting the same evidence and may complete their work as early as next week.

If the FBI confirms Blake’s results, as the agency has in numerous prior cases, “we certainly will do the right thing”--ask for Atkins’ release from Ironwood state prison in Blythe--said Eileen Hunter, the chief deputy district attorney in Riverside.

“I’m ecstatic” about the test results, Atkins, 34, said in a telephone interview from Ironwood on Tuesday. “I’ve been fighting this issue for 13 years. . . . It has taken a lot out of me, but it’s also put a lot in me.”

The type of DNA testing done by Blake had not been created at the time of Atkins’ trial. Instead, conventional blood evidence was used against the South-Central Los Angeles native, who has spent a portion of his prison term concurrently serving time for having shot at a Los Angeles police officer.

The burgeoning number of DNA-related exonerations illustrates the growing power of new technologies to provide more accurate evidence in criminal cases and has raised serious questions about the fallibility of the judicial system.

Last September, a special commission convened by U.S. Atty. Gen. Janet Reno released a report saying that the growing number of convictions overturned because of DNA test results had weakened “the strong presumption that verdicts are correct.” The commission recommended altering the criminal appeals process to make it easier for an inmate to bring forth evidence that could prove actual innocence.

In California, state Sen. John Burton (D-San Francisco) recently introduced legislation that he said would make it easier for inmates to obtain DNA tests that might exonerate them. Now, only New York and Illinois have statutes that give defendants a right to post-conviction DNA testing if there is relevant biological evidence available.

Later this week, Sen. Patrick Leahy (D-Vt.) plans to introduce an Innocence Protection Act that calls for implementation of the Reno commission’s recommendations--in particular giving defendants a right to get DNA testing when biological evidence is available that could prove actual innocence--regardless of when the evidence is discovered.

DNA is hardly just a tool for the defense. DNA evidence also has been used in recent years to help obtain hundreds of convictions across the country.

Eyewitness Identification

Atkins’ case stems from the April 1986 assault of a young woman who managed a shoe store in Lake Elsinore.

According to Atkins’ New York lawyers--Barry Scheck, Peter Neufeld and Jane Siegel Greene of the Innocence Project at Cardozo Law School--the conviction is characterized by factors that come up repeatedly in cases that they have reviewed:

* Cross-racial eyewitness identification that played a key role in securing the conviction.

* Blood evidence that was presented in a questionable way by a state crime lab technician at trial.

* No questioning of that evidence by the original defense lawyer.

* Considerable time--in this case, more than three years--to get the testing done after the defendant learned that DNA evidence could prove him innocent.

“California currently lacks a statute giving inmates the right to post-conviction DNA testing,” Neufeld said. “As a result an inmate is at the mercy of the goodwill of the prosecutor.”

According to a motion filed Tuesday by the Innocence Project and Santa Ana attorney Douglas Myers, the original prosecutor in the case resisted the testing for several years. The prosecutor did not return calls Tuesday seeking comment.

Last August, a Riverside judge granted a motion permitting the testing. Blake’s test results mean that Atkins’ conviction should be voided and raise grave questions about the fairness of his trial, according to Scheck and Neufeld.

The victim, a young white woman, testified that a thin, young black man forced her to orally copulate him, raped her twice and robbed her of cash, her engagement ring and another ring. All the while, she testified, the assailant held a gun on her and “threatened to blow my brains out” if she did not follow his orders.

When the perpetrator fled, the young woman went next door to a clothing store and a clerk there called the police. After the victim was taken to the hospital where nurses gathered biological evidence for the authorities, she was taken to the police station.

Since she had told the police that she believed the culprit was in his teens, they showed her recent yearbooks from the high school she had attended. Initially, she said two young men in the yearbook might have been her assailant but she quickly concluded that neither was.

Then, while waiting in an officers’ briefing room with her mother, the woman saw a wanted poster from Los Angeles County with Atkins’ photo on it and declared, “that’s him.” The woman was so convinced that she told authorities that there was no need to make a composite sketch. Soon thereafter, the poster was shown to a salesclerk at the clothing store, who had seen the perpetrator shortly before the attack, and she too said that man was Atkins.

Atkins was arrested seven months later in Phoenix and pleaded no contest to shooting at a Los Angeles police officer--the charge that generated the wanted poster. He received an eight-year prison sentence that was reduced later and wrapped into the 45-year term for the rape and robbery.

In the Riverside case, the prosecution relied on the eyewitness identifications and biological samples taken from the victim and from Atkins.

Atkins, then 22, took the stand and denied committing the crime. Moreover, Atkins maintained that he had never been in Riverside and didn’t even know where Lake Elsinore was. His wife testified that at the time of the rape Atkins had no access to a car.

However, the victim and the clerk remained firm in their eyewitness identifications. Moreover, state criminalist James Hall testified that Atkins was included in a population of 4.4% of people who could have committed the rape, based on analysis of semen on the victim’s sweater and body.

During his closing argument, the prosecutor asserted that this was “evidence [which] can’t be used to say this is exactly [Atkins}, but it excludes a large percentage of the people and does not exclude him, and that’s corroboration.”

In the motion filed Tuesday, the Innocence Project lawyers cited studies that cast doubts on the accuracy of eyewitness identifications. The attorneys and Blake also challenged the manner in which Hall presented the blood evidence. They said the presentation was misleading and inconsistent with state policies on how to present evidence in sexual assault cases. Hall declined to comment Tuesday.

In any case, Blake’s DNA test results present a diametrically opposite conclusion from the evidence presented at trial.

Blake conducted what is known as STR-based DNA testing on the semen stains on three separate areas of the victim’s sweater, according to a report he submitted that is attached to papers filed Tuesday.

“Herman Atkins is eliminated as the source of spermatozoa from the [victim’s] sweater” in all three areas “because he does not possess the genotype of the sperm source,” Blake wrote.