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Miami-Dade County State Attorney Katherine Fernandez Rundle’s office has formally opposed a motion by an imprisoned Homestead, Fla., man seeking to vacate his 1983 rape conviction based on DNA tests. In July, Richard McKinley, 44, who was sentenced to life in prison for raping an 11-year-old girl in an alley in Homestead, south of Miami, filed a motion claiming that his conviction and sentence should be set aside. He included the findings of two DNA tests conducted in May and June by the Florida Department of Law Enforcement. The FDLE found that semen samples taken from the victim stored for 20 years by the county did not match McKinley’s genetic material. McKinley’s local counsel, Miami solo attorney Ivy R. Ginsberg, said she plans to file a response with the court next week. If McKinley wins exoneration, he would rank among the longest-serving prisoners to ever be set free as a result of DNA testing. Ginsberg had requested the DNA test on his behalf in April of last year. The case was 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. Ginsberg is co-counsel with Barry Scheck and the New York-based Innocence Project. Last year, Rundle’s office contested McKinley’s motion for a DNA test on grounds that his identity as the rapist was not a “genuinely disputed issue.” After initially rejecting McKinley’s request, in October 2002 Miami-Dade Circuit Judge Maria Espinosa Dennis reversed herself and ordered the state to conduct the test, based on a July 2002 appellate court ruling. If Espinosa Dennis grants McKinley’s motion to vacate his sentence, he could be retried or set free, depending on whether the state elects to try him again. But in court papers filed last week, Rundle’s office argues that the DNA test results are irrelevant because the state never claimed the semen samples taken from the victim came from McKinley. The state says McKinley was caught by police in the act of raping the victim, that he never ejaculated and that the semen came from another male with whom the 11-year-old had had “consensual” sex earlier that day. “The fact that another person’s DNA was found in the victim’s vaginal swabs does not establish that the defendant did not commit a sexual battery,” argue Assistant State Attorneys Michael Gilfarb and Penny H. Brill in the motion. “It only provides, as the defense already knew, that the victim had sexual intercourse with someone else, sometime prior to the sexual battery.” But according to McKinley’s motion in July to vacate the conviction, George Borghi of the Metro-Dade Police Crime Lab testified at the trial 20 years ago that he found semen in the victim’s vaginal washings and that the semen was consistent with McKinley’s blood type. Technology at the time did not allow for a more precise DNA match. McKinley testified that he had seen the girl at an arcade that night. But he denied assaulting 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. The move by the state to contest McKinley’s motion to vacate the sentence has been expected since he filed the motion two months ago. At that time, John Kastrenakas, the former assistant state attorney who prosecuted the Homestead man, said “it was a waste of money for the state to even analyze the DNA. The fact of the matter is that two Homestead police officers caught the defendant on top of the victim raping her.” Kastrenakas is now an assistant U.S. attorney in West Palm Beach. Scheck said in July that Kastrenakas’ argument during the trial was that the semen came from McKinley, and that there was no testimony presented about the girl having consensual sex before the alleged rape. In an interview late Wednesday, Scheck said that the state’s argument that the rape victim had sex with another person contradicts her trial testimony. “They are saying that the DNA shows she is not telling the truth about that night,” he said. “The fact that she didn’t tell the truth is not sufficient in their minds to vacate the conviction. We strongly disagree with that position and will file a rebuttal and hope that additional new exculpatory evidence might persuade the prosecutor and the court to vacate the conviction.”

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