Prosecutors fight DNA test in rape case

A Long Branch man, convicted decades ago of sexually assaulting a 17-year-old girl in the city, has always maintained his innocence. Although Dion Harrell, 48, has been out of prison for about 17 years, after serving four years of an eight-year prison term, he still wants to clear his name. But the Monmouth County Prosecutor’s Office is blocking Harrell’s attempt to have DNA from the 1988 crime analyzed to prove one way or another whether he is the man who committed the sexual assault.

An attorney for the New York-based Innocence Project plans to go before a judge on Monday in an attempt to force the state to test the DNA.

Attorney Vanessa Potkin said she hopes to convince Superior Court Judge Ronald L. Reisner to order testing done on the DNA collected from the victim of the sexual assault, which occurred on Broadway in Long Branch, late at night on Sept. 18, 1988. The crime occurred before DNA testing was available in New Jersey, Potkin said.

According to court papers filed in the case, Assistant Monmouth County Prosecutor Mary Juliano plans to oppose the DNA testing. In the filing, Juliano cites a state law that allows for DNA testing on evidence in the cases of convicted defendants currently imprisoned who are seeking exoneration. Harrell’s case, Juliano said, does not meet the criteria because he has been freed.

Despite that, Potkin says Harrell’s conviction on the sexual assault charge has thrown up roadblocks to his finding housing and employment because he is on the state’s sex offender registry. His address is readily displayed on the Internet on the sex offender registry, she points out. And Harrell has twice been incarcerated since serving his sentence because he failed to register his whereabouts with police, a requirement for certain sex offenders under Megan’s Law, Potkin said.

“It’s a huge impediment to where you can live and where you can work,’’ Potkin said of the sex-offender registry.

Harrell was 22 years old when he was accused of committing the sexual assault on the teenage girl, who worked at the McDonald’s fast-food eatery on Broadway in Long Branch, across the street from where Harrell resided at the time, Potkin said.

The attack occurred sometime after 10 p.m., after the victim had finished working, Potkin said. As the girl was walking home on Broadway, she passed a man who made a lewd comment to her, and she told the man to leave her alone, according to Potkin. Instead, the man grabbed her from behind by the neck and dragged her 70 feet to an empty park lot, where he raped her. When the victim told her assailant that her father was across the street, the man grabbed her purse and fled, Potkin said.

The girl went home and told her mother, who called the police. She was taken to Monmouth Medical Center in Long Branch, where a rape kit with slides of evidence was collected, according to Potkin.

The victim told police she did not know her assailant, but she had seen him once before, about three weeks earlier in the McDonald’s, Potkin said.

Three days later, the victim saw Harrell in the parking lot of the McDonald’s and called police, according to Potkin. When officers arrived, Harrell was cooperative and went with them to police headquarters, where the victim identified him as the man who had raped her, Potkin said.

When Harrell stood trial in Superior Court in Monmouth County in 1992, he presented alibi witnesses who testified he was playing basketball with them that night and later went to a friend’s house, according to the court papers that Potkin filed in the case. Despite that, Harrell was convicted of second-degree sexual assault, although he was acquitted of a robbery charge related to the purse snatching, she said.

Harrell’s conviction rested on the victim’s eyewitness identification of him and expert testimony that he could not be excluded as the rapist because of his blood type, Potkin said.

“Put simply, Mr. Harrell’s conviction rests entirely on a single eyewitness identification and rudimentary, outdated forensic testing which has been completely replaced by DNA analysis,’’ Potkin wrote in her court papers. “DNA testing is capable of excluding Mr. Harrell from the semen evidence and thereby providing unprecedented scientific proof of his innocence.’’

Harrell has steadfastly maintained his innocence, even at his parole hearing, Potkin said. He first contacted the Innocence Project for help in 2002.

The Innocence Project, founded in 1992, is a non-profit legal clinic affiliated with the Benjamin N. Cardozo School of Law at Yeshiva University in New York that provides free representation to convicts seeking to prove their innocence through DNA testing.

Since 1989, there have been 325 exonerations nationwide as a result of DNA testing, according to the Innocence Project’s website. Of those, the Innocence Project has been involved in 173.

Five of the eight exonerations in New Jersey were of defendants who were convicted of rape based on mistaken eyewitness identification by the victims, according to the website.

Potkin says mistaken eyewitness identification is the leading cause of wrongful convictions, representing 72 percent of all exoneration cases.

While cross-racial identifications have long been considered problematic, that was not the case here, according to Potkin. However, she said, a documented phenomenon known as unconscious transference could apply, she said. Unconscious transference is said to occur when an eyewitness confuses a familiar but innocent person with an actual assailant, she said. Harrell was a frequent customer at the McDonald’s where the victim worked, she said.

Harrell remained on the Innocence Project’s waiting list for years. In November 2013, Potkin contacted the Monmouth County Prosecutor’s Office requesting assistance in locating evidence from his case.

“For a year, we were told, ‘There is no evidence, that it’s lost or destroyed,’’’ she said.

Then, in October 2014, she was told the rape kit with slides of sperm had been located and was sent to the New Jersey State Police crime lab, but the prosecutor’s office would not agree for DNA testing to be performed on the slides, Potkin said.

“It’s incomprehensible that in 2014 in New Jersey, you have a prosecutor who refuses to have slides with sperm tested to determine if there is a wrongful conviction,’’ Potkin said. “I’m dumbfounded.’’

Telephone calls to the prosecutor’s office were not returned.

Juliano, in her court filing, noted Harrell’s conviction is almost 22 years old and has been consistently upheld by appellate courts.

“The State believes the conviction is entitled to finality,’’ Juliano wrote.

Meanwhile, Potkin argues that if Harrell didn’t commit the rape, DNA testing of the evidence could lead to the identification of the person who did.

“Isn’t there a public interest in finding out if Dion Harrell is innocent, and if so, finding the right perpetrator?’’ she asks.

Kathleen Hopkins: (732)643-4202; Khopkins@app.com

•Of 325 convicts nationwide who have been exonerated through DNA testing, 22 of those innocent people received the DNA testing after their release from prison;

•In 8 of those cases, the real perpetrator was also identified through DNA testing.

•Of the first 250 post-conviction DNA exonerations in the nation, prosecutors consented to the testing in 81 percent of the cases.

Source: The Innocence Project