New DNA evidence might free man convicted in 1974 Polk rape

New DNA evidence might free man convicted in 1974 Polk rape

By Meg Laughlin, Times Staff Writer
In Print: Thursday, December 10, 2009

http://www.tampabay.com/news/courts/criminal/article1057622.ece

Thirty-five years ago, a 9-year-old boy was raped in a field near his Lake Wales home. Five months later, a 19-year-old man was convicted of the rape and sent to prison for life.

Now, DNA tests show he was the wrong man.

"Thirty-five years is a lifetime. We hope the state won't prolong James Bain's incarceration," said Seth Miller, executive director of the Innocence Project of Florida.

Of the 245 people in the United States exonerated by DNA evidence since 1989, not one has spent as much time in prison as James Bain.

The State Attorney's Office for the 10th Circuit received the DNA results Wednesday afternoon.

"We're looking at them to determine what to do next," Assistant State Attorney Chip Thullbery said. "We're asking how does this match up with the case. And we'll have to review the case and see. We're also asking do we want to run (the semen) through a different lab."

• • •

On March 4, 1974, the boy was sleeping in a queen-sized bed between his sisters, 10 and 11, when a man crawled through an open window and quietly

lifted him out of bed.

The boy didn't wake up when the man carried him out the door and through an orange grove to a baseball diamond in an open field. He didn't wake up till the man laid him in the dust and yelled at him to pull down his pants.

Later, the boy told police the man said he thought he was a girl, because his hair was pin-curled with bobby pins.

"He made me turn over," the boy said.

Within an hour the parents discovered their child missing and called police. Police searched the nearby orange grove and found nothing. The boy staggered home, dazed. He was wearing the white T-shirt and underpants he had worn to bed, his underwear now wet with semen. A medical examination showed a badly torn rectum.

That night, police said the child described the rapist this way: "Bushy sideburns … 17 or 18 … he said his name was Jim."

The boy's uncle, who was at the house, said the description pointed to Jimmy Bain.

Jimmy Bain, 18, who had been a student at the high school where the uncle was assistant principal. Jimmy Bain who had bushy sideburns and rode around town on a motorcycle. Jimmy Bain, whom the boy said he had seen before, though it was hard to describe him because he wore a helmet.

Police went to Bain's home and took his picture. They mixed it in with color Polaroids of four other young men. The boy picked Bain.

Later, in a deposition, the boy described how he identified his attacker to a police officer.

"He asked me can I pick out Jimmie Bains," the boy said. "And I picked him out."

He said it was the same man who took him out to the ball park.

At trial, an FBI analyst testified that the semen on the underpants came from a person with blood group B. Bain's blood group is AB, but the analyst said Bain could not be ruled out as the person who deposited the semen. A defense expert testified that because Bain's blood group was AB with a strong A factor it ruled him out as a suspect.

Bain, who had no previous criminal record, provided an alibi. He and his sister told police they were at home watching TV together at the time the boy disappeared. The jury convicted him anyway.

• • •

In 2001, Bain twice requested DNA testing of the boy's underwear. The requests were rejected. He asked again in 2003 and 2006 and was denied both times. In July of this year, Bain requested DNA testing again. This time a Polk County judge granted the motion.

From the DNA Diagnostics Center report dated Dec. 9:

"The partial DNA profile obtained from item 01.C.1s (section from underwear sperm fraction) is not consistent with the DNA profile from James Bain."

Innocence Project attorney Melissa Montle called Bain, 54, at Okeechobee Correctional Institution to tell him the news.

"I always knew I was innocent," Bain was quoted saying. "I've been waiting well over half my life for this miracle. I hope to be back with my family real soon."

Attorneys for the Innocence Project said they expect to file a motion soon to have Bain's conviction vacated and asking that he be released.

The victim, who is now 45 and lives in Central Florida, refused to talk to the St. Petersburg Times. But his father (who asked not to be identified to protect his son) said that his son "is very upset by the news."

Because he still believes Bain raped him, or because it appears the wrong man was convicted?

"Now, we can't be sure," said the father.

The victim was in the Marine Corps for over five years in his 20s. His father described him as "disciplined and upstanding until he fell apart."

Florida Department of Corrections records show that by his mid 30s the victim was going in and out of prison for cocaine possession and theft.

"Once, on the way to rehab, he told me he couldn't shake the rape," said the father.

In August 2006, prison records show that the victim and Bain were at the same prison. The victim requested and got a transfer.

Now, the father says: "We don't know what to think, and we have nothing more to say. This whole thing is a tragedy all the way around."

Meg Laughlin can be reached at mlaughlin@sptimes.com or (727) 893-8068 (727) 893-8068.



[Last modified: Dec 09, 2009 11:20 PM]