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A South Florida man who has served 20 years of a life sentence for raping an 11-year-old girl has filed a motion to vacate his conviction, claiming that recent DNA tests by the Florida Department of Law Enforcement exonerate him. According to the test results, the DNA from Richard McKinley didn’t match the semen samples taken from the victim. But the Miami-Dade County state attorney’s office says it may contest the motion. Prosecutors are expected to argue that the identification of McKinley by the girl and by a police officer at the scene in Homestead, south of Miami, should override the DNA test results. McKinley’s case has set up a potential high-stakes showdown between State Attorney Katherine Fernandez Rundle, who’s running for re-election next fall, and McKinley’s attorneys, including nationally known criminal defense attorney Barry Scheck. The case is brought under a Florida law passed in 2001 that allows convicts in all types of crimes to request a DNA test to try to establish their innocence. That law was prompted by several high-profile cases in South Florida of men who were wrongly convicted and sentenced to death, including Frank Lee Smith and Jerry Frank Townsend. McKinley could become the first convict freed as a result of that law, according to his attorneys. Last year, McKinley requested a post-conviction DNA test under that new law. The Innocence Project, which Scheck founded to expand the use of DNA testing to exonerate the wrongly convicted, got involved in the case when Miami solo attorney Ivy R. Ginsberg, who has been representing McKinley since April 2002, told Scheck about the case at a conference at the University of Miami in September. Ginsberg requested the DNA test on McKinley’s behalf in April of last year. After initially rejecting the request, in October 2002 Miami-Dade Circuit Judge Maria Espinosa Dennis ordered the state to conduct the test. The judge revised her opinion after reading a July 2002 ruling by the state’s Lakeland-based 2nd District Court of Appeal that held that the presence of an eyewitness “does not mean that identity was not genuinely disputed at trial for purposes of post-conviction DNA testing.” In May and June of this year, the FDLE conducted the two tests that showed no match between McKinley’s DNA and semen on vaginal swabs taken from the victim. The swabs had been stored by the county. On July 1, McKinley, 44 — who is being represented by Ginsberg, Scheck and David Menschel, a staff attorney at the Innocence Project in New York City — filed a motion requesting that his conviction and sentence be vacated. McKinley is serving his sentence at Glades Correctional Institution in Belle Glade. If the conviction is vacated, McKinley would be one of the longest-serving inmates in the country exonerated by DNA evidence. When asked whether the state attorney’s office would contest the motion, Assistant State Attorney K.C. Konze, who is handling the case, said, “We are still debating what we will do, but it appears we might.” Konze said his office will file its response on Wednesday. Last year, Rundle’s office contested McKinley’s motion for a post-conviction DNA test on grounds that his identity as the rapist was not a “genuinely disputed issue.” The rape victim and a police officer at the scene had identified McKinley as the assailant. In an interview, John S. Kastrenakes, the former assistant state attorney who prosecuted McKinley two decades ago, said Rundle’s office should fight McKinley’s motion to vacate his conviction. “It was a waste of money for the state to even analyze the DNA,” said Kastrenakes, who now is an assistant U.S. attorney in West Palm Beach. “The fact of the matter is that two Homestead police officers caught the defendant on top of the victim raping her.” Kastrenakes said the DNA test results do not exonerate McKinley because of two factors explained to him by the 11-year-old girl. She said she had engaged in consensual sex the night before and that McKinley did not ejaculate when he raped her. Thus, the semen was from someone other than her attacker, Kastrenakes said. But Scheck, known for helping to successfully defend O.J. Simpson against murder charges, challenged Kastrenakes’ argument. “He took the position at trial that the semen came from McKinley and was the result of recent intercourse,” Scheck said. “He can’t turn around now and say otherwise.” Scheck said that if the girl had consensual sex the day before the rape, the state needs to get a DNA sample from him to see whether his DNA matches the semen recovered by investigators. He said there was no testimony at trial about whether the girl had sex the day before the alleged rape. Menschel said that Kastrenakes’ arguments open him up to prosecutorial misconduct charges if, at the time of trial, Kastrenakes knew that the semen found on the victim did not come from the defendant. Scheck later retracted the statement that Kastrenakes could face misconduct charges. At trial Kastrenakes introduced evidence that the semen sample matched McKinley’s blood type. But technology at the time did not allow for a more precise DNA match. Previous DNA exonerations in Florida were the result of ad hoc actions by justice system officials and were not governed by uniform procedures. In 2000, Frank Lee Smith, who died on death row that year after being jailed for 15 years, was cleared posthumously of murder charges. In 2001, Jerry Frank Townsend, who sat in jail for 22 years, was freed when DNA tests exonerated him of several Broward County murders. The post-sentencing DNA testing law, Florida Statutes 925.11, took effect in October 2001 after the Smith and Townsend episodes. But the law has been criticized because it requires that all post-conviction DNA tests for convictions before October 2001 be conducted by Oct. 1 of this year. Critics say the two-year window is too short a time to process the requests. Scheck said the Innocence Project has identified more than 100 cases for which it intends to request DNA tests before the October deadline. In the McKinley case, the 11-year-old girl identified McKinley, then 24, as the rapist. He sexually assaulted her as she was walking home from an arcade in Homestead in January 1983. She claimed he dragged her into an alley before assaulting her. Homestead police Officer Jon Redell received a call of a sexual battery in progress. When he arrived at the scene, he reported, he saw an African-American male with his pants down lying on top of a female. Seeing Redell, the man got up and ran. Redell and another officer on the scene, Henry McAleenan, gave chase and apprehended McKinley. McKinley was charged with sexual battery, resisting arrest, and striking each police officer. His trial was held in August 1983 before Miami-Dade Circuit Judge Arthur Snyder. McKinley was defended by court-appointed attorney Roger Angel. Angel, now a criminal defense attorney at Angel & Angel in Fort Myers, Fla., told the Daily Business Review that he has no specific recollection of the case. At trial, both the rape victim and Officer Redell said McKinley had committed the rape. According to McKinley’s motion earlier this month to vacate the conviction, George Borghi of the Metro-Dade Police Crime Lab testified that he found semen in the victim’s vaginal washings and that the semen was consistent with the blood type of McKinley. McKinley’s defense was based on mistaken identification. He testified that he had seen the girl at the arcade that night. But he denied that he assaulted her. He said he was urinating in the alley when approached by the police officers and started running because he didn’t know what was happening. A 12-person jury convicted McKinley of sexual battery and of striking Officer Redell. Judge Snyder sentenced the Homestead man to life in prison. “You listen to his defense and say, ‘It sounds so lame.’ But it appears to be true,” Scheck said. Scheck and Ginsberg say there were several inconsistencies in the girl’s story. At one point in the investigation she named another man as the rapist. From the beginning, McKinley has maintained his innocence. Prior to the trial, he turned down a plea bargain under which he would have received a 25-year sentence that could have been reduced for good behavior. Ginsberg said the fact that he rejected the plea bargain enhances his credibility. “He would be out by now if he had taken [the plea deal],” she said. “It goes to his credibility that he maintained his innocence then.” Charles Hoffman, a prominent criminal defense attorney in Chicago who has extensive experience with DNA evidence, said DNA evidence does not always provide definitive resolution. A number of fact issues need to be resolved in evaluating the DNA findings in McKinley’s case. He said that while the legal burden may rest with the defense, a conscientious prosecutor would take the lead in gathering the evidence because it’s often easier for the state than for the defense. “It depends on how enlightened the prosecutor is,” Hoffman said. “Is the prosecutor more interested in getting to the truth or saving the conviction?”

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