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Condemned Man Could Go Free After DNA Testing

Justice: On death row 17 years, Charles Fain has insisted he is innocent. New technology could finally prove his claim.

August 19, 2001|HENRY WEINSTEIN | TIMES LEGAL AFFAIRS WRITER

Three strands of hair that helped put Charles I. Fain on Idaho's death row 17 years ago for the rape and murder of a 9-year-old girl may just give him his life back.

For nearly two decades, Fain has maintained he was wrongfully convicted in the February 1982 slaying of Daralyn Johnson, who was abducted while walking to school in the small town of Nampa, Idaho.

Fain passed a polygraph examination, and several witnesses said he was in Redmond, Ore., 360 miles away, at the time of the murder. But two jailhouse informants said they had heard Fain make incriminating statements. Local police said Fain had lied about his whereabouts and that shoe prints found near the crime scene could have been made by his shoes.

Yet the most critical evidence against Fain was provided by an FBI specialist, who testified at the 1983 trial that pubic hair found on the dead girl's clothes was similar to Fain's, based on a microscopic comparison.

In late June, after a protracted legal battle by Fain's lawyers, sophisticated new DNA testing proved conclusively that the hairs--one found in the victim's sock, the other two in her underwear--did not come from Fain.

A week later, a federal judge, who earlier said he would not consider Fain's claims of innocence, set aside the conviction. U.S. District Judge B. Lynn Winmill in Boise, Idaho, gave prosecutors a deadline of Sept. 4 to either initiate retrial proceedings against Fain, now 52, or release him.

It now appears that as early as next week Fain could walk off death row a free man--the 94th prisoner exonerated as a result of DNA testing in the last decade. Ten of those exonerated were on death rows in five states, including five in Illinois, where the governor responded by declaring a moratorium on executions last year.

If he is freed, Fain also would be the second convicted rapist cleared as a result of mitochondrial DNA testing, which can extract DNA directly from the shaft of a hair and is dramatically altering the field of forensic hair analysis. Besides establishing innocence, it also is used to prove guilt.

Late last week, David Young, the prosecuting attorney in Canyon County, Idaho, said he hoped to announce his decision next week about whether to seek a retrial in Fain's case. First he wants to complete further forensic tests, which he would not describe.

Idaho state court documents show that Young's office now is focusing its attention on two other suspects, both of whom have a history of sex crimes.

Fain's appellate attorneys, who have been working on his case for nearly 10 years, expressed confidence that he would be released.

"I firmly believe it would be improper to retry Mr. Fain," said defense lawyer Spencer C. McIntyre of Seattle. "The hair was really the linchpin of their case, and the other evidence is highly suspect. It is not just that the state has the same case minus the hair evidence; the pubic hair evidence is now our evidence. It is exonerating evidence.

"Mr. Fain is completely innocent. This has been a gross injustice."

Fain, an inmate at a maximum security prison near Boise, was not available for comment. But his other attorney, Frederick Hoopes of Idaho Falls, said Fain told him, "I'm walking on air" after hearing that Winmill had set aside his conviction.

The Fain case is particularly significant because of its use of mitochondrial DNA testing, said defense lawyer Barry Scheck, co-founder of the Innocence Project at Cardozo Law School in New York, whose work is responsible for freeing numerous inmates through the use of DNA examination.

Mitochondrial testing was first used in the U.S. in a September 1996 trial in Chattanooga, Tenn., where it played a key role in the conviction of a man later sentenced to life without possibility of parole for the rape and murder of a 4-year-old girl.

Since then, its use has burgeoned. On Friday, an FBI spokesman said that the agency's laboratory had worked on 700 cases involving mitochondrial DNA since 1996 and that FBI agents had testified on the subject in cases in 26 states, Canada and Australia.

The technology also has been used to confirm that the infamous 19th century outlaw Jesse James is buried in Missouri and to identify the remains of U.S. servicemen found in Southeast Asia.

"Mito" testing, as people in the field refer to it, has several advantages over other types of DNA testing, primarily because it can be used on very old, degraded or small samples of hair, bones and body fluids.

Mitochondrial DNA differs from nuclear DNA in its sequence, its quantity in the cell, its location in the body and its mode of inheritance, according to an FBI report. In humans, mitochondrial DNA is inherited only from the mother. Consequently, mitochondrial analysis cannot distinguish between individuals of the same maternal lineage.

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