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Based on new DNA tests that did not confirm his guilt, the state attorney’s office in Miami-Dade County, Fla., has struck a deal to free — but not exonerate — a man who has spent 20 years in prison after being convicted of raping an 11-year-old girl. Ivy R. Ginsberg, a defense attorney for Richard McKinley, said Friday that the 45-year-old McKinley, who is serving a life sentence at the Glades Correctional Institution in Palm Beach County, agreed to plead no contest to a count of attempted sexual battery on a child under 12 in exchange for his release. A hearing is scheduled for Friday to seek court approval for the deal. A judge will be asked to vacate the life sentence, accept McKinley’s no contest plea and re-sentence him to time served. If the deal is approved, McKinley would be one of the longest-serving prisoners ever set free because of DNA evidence. A spokesman for Miami-Dade State Attorney Katherine Fernandez Rundle declined comment until after a hearing is held. The deal was struck after DNA tests conducted by the Florida Department of Law Enforcement in May and June — which were requested in April by Ginsberg — showed that McKinley’s DNA did not match the DNA in the semen recovered from the victim in the Homestead, Fla., incident. Based on the test results, McKinley in July petitioned to have his 1983 conviction vacated. The state attorney’s office opposed the motion. The request for a DNA test was brought under a Florida law passed in 2001 that gave felony convicts convicted prior to October 2001 two years to request a DNA test to try to establish their innocence. The state Supreme Court currently is considering extending the deadline for DNA testing. Ginsberg’s co-counsel in the McKinley case is Barry Scheck, of the New York-based Innocence Project. Ginsberg originally requested a DNA test on McKinley’s behalf in April of last year. But 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. Rundle’s office previously dismissed the DNA evidence in McKinley’s case as irrelevant. The fact that another person’s DNA turned up on the victim’s vaginal swabs doesn’t establish that McKinley didn’t rape her, only that the victim had sex with someone else prior to the sexual battery, the state argued in its motions. Ginsberg said that the man whose DNA matched the semen recovered from the victim died in a shootout 19 years ago. Under last week’s deal, McKinley would remain classified as a felon and would have to register as a sexual offender but would not be placed on probation. But Ginsberg said that for her client, obtaining his freedom outweighed that stigma. “Getting out is critical,” she said. The slowness and uncertain outcome of a new trial made the no contest plea a more appealing option than fighting for exoneration, even though McKinley still contends he is innocent, she said. “He can go on with his life and look for a job and be with his family.” McKinley, the attorney said, looks forward to reuniting with his sister and elderly mother. “[His mother] has waited a long time for him to come home.”

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