26 Years Later, Justice for Men Imprisoned for a Bogus Rape
Posted May 7, 2018 4:19 p.m. EDT
NEW YORK — The woman, dirty, disheveled and in tears, ran over to a patrol car parked along a Harlem street in the early morning of Jan. 18, 1991. She told police officers she had been kidnapped at knifepoint near her home in Queens and raped by three black men, whom she identified.
Before the end of the month, police arrested two of the men she had named — Gregory Counts, then 19, and VanDyke Perry, then 21. They were charged with four counts of first-degree rape, three counts of first-degree sodomy, kidnapping and criminal possession of a weapon, according to court records. The third man was never caught.
Investigators had no physical evidence connecting the men to the crime or the crime scenes. Semen recovered from the woman, identified in court records as “the complainant,” did not belong to the accused. The prosecution’s case relied solely on her testimony, which was inconsistent, court records show. Defense attorneys argued that the case was poorly investigated, noting that a vehicle in which the complainant said much of the assault occurred was never searched or tested for evidence. The defense argued that the complainant, a recovering crack addict, fabricated the story to protect her boyfriend, who shot Perry two months earlier and was wanted by the police, court records show.
Still, in 1992, a jury convicted Counts and Perry on all counts except for the weapons charges.
Last month, nearly three decades later, the woman told investigators that Perry and Counts were innocent and that the rape “never happened.” The woman recanted her story to investigators with the Manhattan district attorney’s Conviction Integrity Program, the Innocence Project and the Office of the Appellate Defender’s Reinvestigation Project. They had begun a collaborative reinvestigation of the case in 2017, a year after DNA testing connected the semen to another man through the FBI’s national convicted offender database. By then, Perry had served nearly 11 years in prison before being released in 2001; Counts, who was released in August, had served 26 years behind bars.
“This case is a tragedy for everyone involved,” Manhattan District Attorney Cyrus R. Vance Jr. said in an interview Sunday. “It is every district attorney’s nightmare that any innocent man or woman would go to jail.”
On Monday afternoon, the men will finally get justice. Prosecutors and lawyers working on behalf of the convicted men will file a joint motion asking a state Supreme Court judge in Manhattan to vacate the convictions and dismiss the original indictments against Perry and Counts because of newly discovered DNA evidence and the woman’s changed story.
“This was a particularly dark time in New York City during the crack epidemic,” said Barry Scheck, co-founder of the Innocence Project, a nonprofit that uses DNA evidence to exonerate wrongly convicted prisoners. “At this point in time in New York City, people were scared of teenagers who looked like my clients.”
This will be the ninth conviction to be vacated since the creation of the Conviction Integrity Program in Manhattan in 2010.
Attorneys for Perry and Counts said the case was flawed from the start.
When the trial began in 1992, the complainant was issued a warrant forcing her to testify, the joint motion stated.
She testified that she lived in a house in Queens with her boyfriend, who was a recovering addict, and their two children. Perry was dating a teenage girl who lived in the same house, and he eventually moved in, according to court records. The complainant’s boyfriend began using drugs again and selling them from her home along with Perry, Counts and a third man. But in September 1990, the men assaulted the boyfriend for failing to pay back a debt.
Two months later, the complainant said her home was burglarized and told police she believed it was the three men. Sometime after that incident, the complainant testified that Perry confronted her boyfriend at their home and that he shot Perry.
The complainant told a jury that on Jan. 18 she was leaving her home in Queens when Counts appeared and forced her into a car at knifepoint. Inside the vehicle, she said, were Perry and the third man, who demanded to know where her boyfriend was. She testified that they brought her to a public housing complex, where they believed she was living with the man. But when she refused to tell them where he was, she testified that they drove around and raped her multiple times in the vehicle and in Central Park.
During the trial, the defense argued that she was not a reliable witness and that her stories shifted often. She said, for example, that she had been punched in the face so hard that her eyes had swollen, but a doctor who treated her and testified said there was no evidence of such an assault. The doctor also testified that while there were signs of sexual activity there were no signs of sexual trauma.
Defense attorneys argued that the complainant had a motive to retaliate against the men and that the boyfriend had good reason to help her out because it meant charges for shooting Perry could be dropped.
Counts and Perry spent years fighting their convictions despite a number of failed appeals. While in solitary confinement, Counts read “Actual Innocence: Five Days to Execution, and Other Dispatches From the Wrongly Convicted” and then wrote to the Innocence Project asking that it conduct a DNA database check of the samples collected in his case, according to Seema Saifee, a senior staff lawyer with the nonprofit.
“He never gave up,” she said.
In 2015, the DNA was retested. It matched the profile of a man who had been about 40 years old in 1991 and died in 2011, according to court records.
Investigators with the prosecutor’s office interviewed the complainant in 2016 with a photo of the person who may have been the attacker, but she told them she did not recognize him. She explained to investigators that she had used drugs at that time and that she would sell herself to support her habit. She refused to talk further.
In February, investigators found and interviewed the third man, who denied the rape and explained that the car the complainant said she was attacked in was inoperable at the time, court records show.
Investigators returned to the complainant, who this time admitted that the story was a lie. She told investigators that her boyfriend forced her to make the fake accusations and that she had been haunted by what she had done.
Perry moved to the West Coast after he was released, started a family and worked odd jobs to support himself.
“He didn’t want to go back to the place where he had been treated so unfairly,” said Mandy Jaramillo, senior staff lawyer with the Office of the Appellate Defender. Monday will be his first time back in New York City.
“At the end of the day, nothing will give these men back the years away from family, or the years spent in prison,” Vance said. “No apology can make them whole.”