Long Branch Man Requests DNA Testing For Rape Conviction – Prosecutor Opposes

images (3)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. (From the Asbury Park Press – Click here for full article)

When I read this article several thoughts came to mind. My heart obviously goes out to the victim of this heinous crime. However, as an attorney my thoughts naturally turned to the important legal and moral issues presented by way of this motion.

Is It Possible That The Defendant Did Not Commit This Crime? While our justice system does a fairly good job of protecting against wrongful convictions, they do occur. Since 1989, there have been 325 exonerations nationwide as a result of DNA testing, according to the Innocence Project’s website. DNA testing is standard procedure today, yet this technology didn’t exist when this crime was committed. Instead, the defendant here was convicted based solely on a single witness identification. According to the Innocence Project, five of the eight DNA related exonerations in New Jersey were of defendants who were convicted of rape based on mistaken eyewitness identification by the victims.

Why Would The Defendant Seek DNA Testing When He Is No Longer Incarcerated? Naturally, a significant stigma comes with being convicted of any crime, especially one as deplorable as sexual assault. Moreover, as Mr. Harrell’s attorney Vanessa Potkin has pointed out, this conviction 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.

Why Would The State Oppose Such A Motion? While I have not read the pleadings from either side, I assume that the defendant filed a motion pursuant to N.J.S.A. 2A:84A-32a. This rule provides, in part, that any person who was convicted of a crime and is currently serving a term of imprisonment may make a motion before the trial court that entered the judgment of conviction for the performance of forensic DNA testing.” The state argues that this statute does not apply because the defendant is no longer incarcerated. This brings to mind the issues of statutory interpretation and prosecutorial discretion. Will the court be required to follow the statute verbatim? If not, will the judge determine it is in the interest of justice to allow the DNA to be tested? With regards to prosecutorial discretion, is the prosecutor required to oppose this motion? Like many in the legal community I look forward to hearing these questions answered.

Other Than The Defendant, Could Society Benefit From A Conclusive Finding Here As Well? While there is a financial burden associated with litigating this matter and with any subsequent DNA testing, presumably it would be in the community’s best interest to know if it failed to apprehend and prosecute a rapist.

I will be watching very closely for the court’s determination here. While the issue is complex, I personally feel as though the interest of justice will be best served by allowing the DNA to be tested. In my opinion all parties involved here deserve closure. Despite the prosecutor’s arguments, a finality here has not been realized as evidenced by the very fact that this motion is scheduled to be heard. If the court finds that it is unable to grant this order due to restraints associated with the wording of the statute, I expect the defendant to petition to be heard in front of the New Jersey Supreme Court.