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DNA test frees man from a long prison sentence

Updated: 2013-06-15T02:51:52Z

By TONY RIZZO

The Kansas City Star

Serving a lengthy prison sentence for a rape he didn’t commit, Robert E. Nelson asked for DNA testing to prove his innocence. Twice since 2009, he was turned down.

In late 2011, Jackson County prosecutors working through cold cases sought testing for a very different reason: to find Nelson’s accomplice. A few months later, as prosecutors were nearly finished with their testing, a judge approved Nelson’s newest request.

Semen and hair evidence, carefully preserved since the December 1983 home invasion rape and robbery of a 24-year-old Kansas City woman, linked two other men — not Nelson — to the crime.

On Wednesday, prosecutors and Midwest Innocence Project officials asked a judge to order Nelson’s release. He had served 30 years in prison, most of it for two unrelated convictions that still stand. He had started serving a 70-year sentence on the rape conviction in 2006.

Jackson County Prosecutor Jean Peters Baker and Laura O’Sullivan, legal director of the Midwest Innocence Project, waited until Friday to jointly announce Nelson’s release after the arrest of one of the new suspects. The other suspect is already in prison for a 1992 home invasion rape.

“If we had not found this mistake that occurred,” Baker said, “it’s likely he (Nelson) would have served out the rest of his sentence, and the real perpetrators would not have been identified.

“This is a day that justice is being served.”

Two days earlier, Nelson wore a wide grin and a new set of civilian clothes as he emerged from the Crossroads Correctional Center in Cameron, Mo., into the arms of joyous family members.

“I know I’m dreaming,” said his sister Sea Dunnell, who said she “never for a second” doubted her brother’s innocence.

Two nieces, who never knew their uncle as a free man, were overcome with emotion as they embraced him.

“Thank you, Jesus,” one screamed as smiling prison staffers and Innocence Project staff watched.

Nelson, now 49, was 20 years old when authorities accused him of robbing and raping the woman during a spree of similar crimes that terrorized a southeast Kansas City neighborhood.

Back then, prosecutors also charged Nelson in three additional cases: a rape, a home invasion robbery and a street robbery. Nelson was convicted in the two robberies. But prosecutors dismissed the other rape case in 1984, immediately after Nelson’s conviction in the 1983 rape.

In the dismissed case, two intruders raped and sodomized a 37-year-old woman, forced her to bathe, bound her and told her and her 15-year-old son to “Have a merry Christmas.” The son, who according to court records identified Nelson as one of the attackers, died in November, preventing prosecutors from refiling the case now, they said.

When sentenced in the 1983 rape and other crimes, Nelson drew a total of 98 years in prison. The majority — 70 years — was imposed in the rape case that ended with Tuesday’s exoneration.

In that case, two armed intruders barged into a woman’s home and assaulted her. The next day, investigators showed her photographs of known sex offenders and others, including Nelson and his brother, according to police reports at the time.

She was “unable to identify anyone from the photographs viewed,” according to the reports.

About a month later, an anonymous caller to the TIPS Hotline told authorities that two brothers in jail at the time for robbery “are the ones doing the rapes out south,” the reports show.

The caller gave police the last name of two other men, but detectives were unable to find jailed brothers by that name. They did, however, discover Nelson and his brother awaiting trial on robbery charges.

After that, the rape victim “tentatively identified” Nelson after viewing a videotaped lineup, according to a probable cause affidavit prepared by a detective in early 1984. She “positively identified” Nelson when she heard his voice, according to the affidavit.

That lineup happened about six weeks after the crime, according to police reports. A transcript of the victim’s police interview shows she was asked how positive her identification was.

“Yes, I am positive because I recognized his voice and I am satisfied in my mind, from looking at his face, that he is one of the suspects,” she is quoted as stating.

Prior to Nelson’s trial, his attorney filed a motion to exclude the victim’s eyewitness identification. He argued that it was “unduly suggestive” because Nelson was the only one in the four-man video lineup whose picture the victim had viewed previously.

According to the Innocence Project, an eyewitness identification has been involved in 75 percent of the cases where DNA testing later exonerated defendants.

Technology, training and methods that police use for eyewitness identification have improved over the decades, said Detective Gary Snyder of the Kansas City police. One new method involves asking a detective not involved in a case to show photos to witnesses to avoid the possibility of suggestive body language or anything that could sway a witness, Snyder said.

In the Nelson case, a trial transcript never was prepared, and the court reporter’s notes no longer exist. All that remains are trial minutes.

At trial, the accuser identified him in the courtroom, Nelson said. He did not testify, on the advice of his attorney.

His trial attorney has retired and has health problems that prevented Innocence Project investigators from interviewing him. O’Sullivan said Friday that he did a “terrible job” and didn’t file an appeal, “which is Criminal Defense 101.”

According to a pretrial motion, Nelson’s attorney filed notice that he would rely on an alibi defense. Robert Nelson was helping relatives prepare for a family birthday party from about 5 to 8 p.m. the night of the rape, the motion says. The victim estimated the rape occurred between 7:30 p.m. and 8:30 p.m.

But Nelson’s attorney never presented the alibi defense, according to the trial minutes.

Prosecutors seeking to identify the accomplice started retesting key evidence in 2011, Baker said. Once early tests revealed they might have convicted the wrong guy, they ordered retesting of all evidence, including a stained bathrobe and multiple hairs.

In February, the Innocent Project paid to fast-track the testing, which confirmed Nelson did not commit the crime. On June 4, prosecutors received final confirmation of all the test results, which linked two other men to the crime.

One of the new suspects, identified in court documents as F.L.A., has been in prison since 1994, according to the Missouri Department of Corrections. Convicted in Jackson County of forcible rape, assault, burglary and armed criminal action, he was sentenced in April 1994 to life in prison plus 130 years, records show.

In that 1992 crime, an intruder attacked a woman in her south Kansas City home with three young children present. The intruder raped and sodomized the woman and stabbed her in the back with a kitchen knife. She ultimately fought her way out of the house. DNA evidence, being used for one of the first times in Jackson County, helped prosecutors convict the rapist.

F.L.A. has not been charged in the 1983 rape case for which Nelson was cleared this week. Baker said she was still assessing whether to charge him, since he already is serving a life sentence in prison.

The other suspect is Jerry Haley, 48, of Kansas City. He had a drug possession case in 2006, according to Jackson County court records. His address listed in court records was about two blocks from where the 1983 rape occurred. Prosecutors charged him this week with three counts of rape and one count each of sodomy and robbery in connection with the 1983 case. Arrested in Iowa, he is being held in the Polk County Jail.

Nelson said he began seeking the DNA testing after a 2001 Missouri law authorized such post-conviction examinations. He first had to contact the Kansas City crime lab to determine if the evidence still existed.

It did, but it wasn’t until 2009 that Nelson, without an attorney, filed his first official court request. A judge denied it and a later request. Nelson’s third try was granted in early 2012, about the time the Midwest Innocence Project took his case. O’Sullivan said the Innocence Project spent more than $40,000 to have testing done at a private lab.

Nelson said he worried about whether test results could be obtained from the old evidence.

“I wasn’t worried about what the results would be,” he said.

The crime lab and Jackson County prosecutors have been “incredibly cooperative” during the case, O’Sullivan said.

Though prosecutors wanted to test the evidence to find the accomplice, both sides had a “common interest” in finding the truth, according to O’Sullivan.

“It helped us prove that Robert was innocent, and it helped them show who the real perpetrators were,” she said.

“He (Nelson) was looking at the rest of his life in prison.”

Since his release, Nelson has been getting a crash course in using technology such as cellphones and computers.

He is staying with a relative for now, and he said family support is what kept him going during his prison years.

“I’m going to enjoy the moment,” he said. “Then I’m going to find a job and start getting my life back together.”

Both of his parents died while he was incarcerated. He said he harbors some anger over what happened to him.

“But right now the joy is overwhelming the anger,” he said.

The Star’s Christine Vendel contributed to this report. To reach Tony Rizzo, call 816-234-4435 or send email to trizzo@kcstar.com.

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