CROOKED CALIFORNIA PROSECUTORS

Jury may not hear DNA evidence. What have they got to hide?

California prosecutors are trying to keep DNA evidence that freed Herman Atkins away from the jury in his wrongful conviction lawsuit. The Riverside County case seeks damages for the 12 years Atkins spent in prison for a rape and robbery he did not commit, The Los Angeles Times reports. The county district attorney declared Atkins innocent six years ago, but the county now doesn't want the jury to learn about the DNA evidence that freed him, the report said.

Atkins, now 40, was originally accused in a 1986 robbery of a shoe store. In his wrongful conviction suit, which is set for trial later this month, Atkins claims a detective fabricated evidence.

Private lawyers representing the county assert the sole issue in Atkins' case is whether his rights were violated, The Times reported. They also are challenging the reliability of the DNA tests. But Atkins' attorneys have said in court papers, "The prejudice to Atkins would be immeasurable if the jury did not hear conclusive evidence that he is innocent."

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Background:

Herman Atkins was convicted by a jury in 1988 of robbery, rape, forcible oral copulation, and for using a handgun in the commission of these crimes. The victim was raped in a shoe store in Lake Elsinore, California, in 1986. Atkins was sentenced to over forty-five years in prison.

On April 8, 1986, the victim was working at the shoe store when, sometime between 11:30AM and 12:00PM, she was raped and robbed at gunpoint. During the rape, the assailant ejaculated and wiped the semen from his genitals onto her sweater. The victim called the police and was taken to the hospital where vaginal swabs were collected. Her clothing, including the pink sweater with the semen stains, was collected and marked for identification. She then went to the police station and was shown Elsinore High School yearbooks but was unable to find her assailant. She did not identify Atkins as her assailant until after she was taken to a police station briefing room, where she saw a wanted poster for him on unrelated charges. After seeing the wanted poster, she was shown a photo lineup and identified Atkins as her assailant. A witness who worked at the store next to where the rape occurred was shown the wanted poster with Atkins's picture and identified him as a man who had been in her store earlier that day.

Atkins's defense was mistaken eyewitness identification. He presented an alibi witness and testified on his own behalf. In addition to the eyewitness identifications, the prosecution proffered testimony from a criminalist with the State of California's Riverside Laboratory. The criminalist testified that the semen found on vaginal swabs was deposited by someone with blood type A and PGM 2+1+. This typing was consistent with both the victim and Atkins. The criminalist also testified that the semen stain recovered from victim's sweater revealed the presence of a type A secretor and that about 25.9% of the black population have type A blood, and 80% of the population are secretors. Further, he testified that approximately 21.4% of the population (both caucasian and black) have PGM Type 2+1+. He concluded that, based on these numbers, Atkins was included in a population of approximately 4.4% of people who could have committed this rape. The prosecutor argued during summation that this evidence was "evidence [which] can't be used to say this is exactly [the defendant], but it excludes a large percentage of the people, and does not exclude him, and that's corroboration."

Atkins's case was accepted by the Innocence Project in 1993. After locating the sweater and vaginal swabs in 1995, the Innocence Project began trying to gain access to the evidence for DNA testing. The prosecution refused to allow access to the evidence. In 1999, the Innocence Project filed a motion to compel the prosecutor to relinquish control of the evidence and send it to a laboratory for the purposes of DNA testing. The motion was granted and the evidence was sent to Forensic Science Associates.

After receiving the specimens, which consisted of biological evidence used at trial, FSA performed STR based DNA testing on the semen stains found on the victim's sweater. The vaginal swabs were consumed by the serological testing conducted at the time of trial and thus not amenable to DNA testing. Testing was conducted on three separate areas of the sweater. In all three areas, the results were consistent. The spermatozoa found were determined to be from someone other than Atkins. Based on the test results, Herman Atkins was released from prison in February 2000, after spending twelve years in prison for a crime he did not commit.

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