Bain has Served Over 35 Years for a Rape he Did Not Commit; Attorneys Call for Release by Christmas

Seth Miller and Juan Melendez

Innocence Project of Florida, Inc.
1100 East Park Avenue, Tallahassee, FL 32301
Telephone 850.561.6767 Fax 850.561.5077

PRESS RELEASE
For Immediate Release
December 10, 2009

Contacts:
Seth Miller, Esq.: 202.341.2127
Melissa Montle, Esq.: 561.843.9304
Bob Young, Esq: 863.534.4258



DNA Testing Demonstrates James Bain is Innocent
Bain has Served Over 35 Years for a Rape he Did Not Commit; Attorneys Call for Release by Christmas

Tallahassee, Florida—On Thursday, December 9, 2009, DNA Diagnostics Center, a nationally recognized forensic laboratory in Fairfield, Ohio, issued a report in the case of State of Florida v. James Bain, which demonstrates Bain’s actual innocence of a 1974 kidnapping and rape of a nine-year-old boy in Lake Wales, Polk County, Florida.

The court ordered testing on DNA of sperm found on the child’s underwear worn during the rape only after the State Attorney agreed to the testing and to this nationally-recognized lab. The testing, announced today, excludes James Bain as the donor of the sperm, confirming that someone other than Bain raped the victim. “After over 35 years in prison for a crime he didn’t commit, this evidence of actual innocence should finally allow the State to do the right thing and release this innocent man before he spends his 36th Christmas locked up for a crime he didn’t have anything to do with,” said Bain’s local counsel, Bob Young, General Counsel in the office of J. Marion Moorman, Public Defender of the Tenth Judicial Circuit.

Bain was convicted when the jury rejected his alibi evidence (he was home with his sister) in favor of the eye-witness identification of the nine-year-old victim. The jury also heard conflicting testimony about ABO blood grouping, but believed the little boy to the exclusion of the other evidence. “Today’s DNA results demonstrate conclusively that the victim was mistaken about who raped him and the FBI’s testimony regarding whose semen was on the underwear was simply wrong,” said Melissa Montle, Staff Attorney with the Innocence Project of Florida (IPF).

According to the Innocence Project of Florida, witness misidentification and faulty forensics are two of the leading causes of wrongful convictions. Specifically, witness misidentification is the leading cause, contributing to almost 80% of the 245 wrongful convictions later overturned by DNA testing nationwide.

Bain tried numerous times to file his own requests for DNA testing since 2001. Until the agreement of this State Attorney in October 2009, he was rebuffed by the courts at every turn. “Jamie Bain has always known he was innocent and has been trying to get this DNA testing for almost a decade. Florida’s criminal justice system is just ill-equipped to give folks like Jamie a meaningful opportunity to prove their innocence. Commendably, the State agreed to the testing and I hope that after seeing these conclusive DNA test results, they will agree that Jamie should come home by Christmas,” said IPF’s Executive Director, Seth Miller.

When informed of the results, Bain said, “I always knew I was innocent. I’ve been waiting well over half my life for this miracle. I hope to be back with my family real soon.”

The Innocence Project of Florida (IPF) is a 501©(3) organization dedicated to finding and freeing innocent people in Florida prisons. IPF, along with Robert Young, General Counsel for the Tenth Judicial Circuit Public Defender, J. Marion Moorman, represents James Bain. IPF’s website is www.FloridaInnocence.org.

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To view the exclusionary DNA test report, click here.

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Statement of Facts: State of Florida v. James Bain

On August 23, 1974, James Bain was convicted of rape, breaking and entering and kidnapping, and was sentenced to life in prison by the Tenth Judicial Circuit Court in Polk County, Florida. Over 35 years later, on October 16, 2009, that same Court granted DNA testing of semen found in the crotch area of the nine-year-old victim’s underwear and on December 9, 2009 a report was issued revealing DNA results which demonstrate Bain’s actual innocence. Bain’s 35 years of wrongful incarceration is the longest time served by any of the 245 individuals exonerated by DNA evidence in our nation to date.

The DNA: Bain initially represented himself because people in his position are not entitled to a court-appointed attorney. Following the rules as best he could, he filed numerous motions requesting DNA testing beginning in 2001. All of his requests were denied by the circuit and appellate courts. DNA evidence that proves Bain’s innocence came as a result of a 2009 motion filed by Bain’s attorneys, Robert Young, of the Tenth Judicial Circuit Public Defender and the Innocence Project of Florida (“IPF”). The testing was paid for by IPF and performed at DNA Diagnostics Center, a private lab in Fairfield, Ohio. Only on this last attempt did the State Attorney for the Tenth Circuit agree to the testing. The State Attorney’s agreement set the stage for the DNA testing which has revealed that DNA from sperm on the nine-year-old victim’s underwear came from someone other than Bain, thus confirming that someone other than Bain committed the breaking and entering, kidnapping, and rape.

The Crime: Late on the night of March 4, 1974, the victim was taken from his bedroom through a window to a nearby field and raped by an unknown male. When the victim returned home, he was wearing only a white t-shirt and jockey underwear. The police collected his underwear and sent it to the FBI for serological testing.

Bain became a suspect after the victim described his assailant and the victim’s uncle stated that the man he was describing sounded like James Bain, who he knew as a student at the high school where he was assistant principal. After his uncle mentioned the name, the victim adopted Bain as the rapist. When the police arrived at Bain’s house around midnight on March 5, 1974, Bain was at home with his sister where he had been since around 10:30pm. Although James Bain had an alibi, never confessed to the crime, and always maintained his innocence, police arrested him.

The Trial: The State’s case was based largely on serology on the underwear performed by the FBI and the victim’s identification of Bain as his assailant. The underwear itself was admitted at trial as State’s Exhibit #1. Contrary to the FBI testimony, a defense expert testified at trial that the serological results revealed that Bain could not have been the depositor of the semen on the victim’s underwear. In addition, there was testimony regarding Bain’s alibi presented at trial and the eye-witness testimony of the nine-year-old.

(1) Victim’s Misidentification: The police had already arrived at the victim’s home when he returned after the assault. The victim gave the officers a physical description of his assailant, which included very prominent sideburns, and said he identified himself as “Jimmy.” The description was then given to the victim’s uncle who stated that he knew an individual named Jimmy Bain who fit the description. After the uncle stated Bain’s name, the victim adopted Bain as his assailant. At this point, the police took the victim to the police station (along with his father and uncle) and presented him with a photo lineup. Bain’s photo was included in the lineup, along with four or five other males, only one of which had sideburns. Rather than asking the victim to pick out the photo of his assailant, the police suggestively and improperly instructed him to pick out Bain’s photo, and he did. DNA results now prove the victim’s suggestive identification of Bain as his rapist to be a mistake.

(2) Fudged FBI Serology: Serology testing performed pre-trial by the FBI on the victim’s underwear verified that the rapist did deposit semen on the victim’s underwear and sperm heads were seen on the underwear by the FBI at that time. FBI analyst, William A. Gavin, testified that the semen on the underwear was blood group B, that Bain’s blood group was AB (with a weak A), and that Bain could not be excluded as the depositer of the semen. DNA results now prove this FBI testimony to be patently false.

(3) The Victim’s Underwear: the State’s Key Piece of Physical Evidence: At trial, the State’s theory of the case was clear: the perpetrator who raped the victim ejaculated and deposited his semen and sperm onto the victim’s underwear—and that person was James Bain. The underwear was admitted into evidence at trial by the State solely for this purpose. DNA results now prove that the State’s theory, along with the evidence used to prove its theory, was simply wrong.

(4) Defense’s Medical Expert on Serology: Dr. Richard Jones, a defense expert, testified at trial that Bain’s blood group was AB (with a strong A) leading to his conclusion, contrary to the FBI’s, that Bain could not have deposited the semen on the victim’s underwear. DNA results now prove Dr. Jones’ conclusion to be true.

(5) Bain’s Alibi: In addition to the expert testimony presented by Dr. Jones at trial that Bain could not have been the depositer of the semen on the victim’s underwear, Bain also had an alibi. He was out with friends earlier in the evening on March 4, 1974 and arrived home around 10:30 P.M. From 10:30 until the time police arrived at midnight, Bain watched TV and fell asleep in the living room with his sister. His whereabouts were accounted for during the time of the attack. DNA results now prove Bain’s alibi to be credible.

Conclusion: Because the certainty provided by today’s DNA results did not exist, this conviction was based on the disputed eyewitness identification of a nine-year-old and conflicting ABO blood grouping evidence. Unfortunately for Mr. Bain who has spent 35 Christmases in prison, DNA evidence did not exist at the time of his trial. Now that the key evidence has been reviewed by modern science DNA testing proves that sperm on the victim’s underwear that the State used as the lynchpin of its case linking Bain to the crime was actually powerful, affirmative evidence of his innocence.

Innocence Project of Florida
1100 East Park Ave
Tallahassee, Florida 32301
US