innocence blog

A Web log for the Innocence Institute of Point Park University

Wednesday, October 25, 2006

DNA Testing Called Upon in 1998 B.C. Attempted Rape Case

This article appeared in the Battle Creek Enquirer on October 19, 2006:

DNA Testing Called Upon in 1998 B.C. Attempted Rape Case

Authorities won't know for at least a couple of months if biological evidence will link an imprisoned Battle Creek man to a 1998 attempted rape.

Danny D. Cotton, 46, is serving 25 to 50 years at the Chippewa Correctional Facility at Kincheloe, for home invasion and assault with intent to commit sexual penetration.

But this week lawyers for Cotton were granted a motion to test evidence from the scene of the crime to determine if Cotton's DNA was left behind.

It's the second case in Calhoun County asking for post conviction DNA testing. In the late 1990s, Michael Hicks, convicted of a 1993 rape, had evidence tested and it was determined the DNA was his.

The case for Cotton, like that for Hicks, was brought by the Innocence Project at the Cardoza Law School in New York. The project was founded in 1992 by former O.J. Simpson defense attorney Barry Scheck and fellow professor Peter Neufeld to advocate for the use of DNA to clear suspects.

Olga Akselrod, an attorney from the Innocence Project, arguing for the analysis, cited a Michigan law that allows people convicted before DNA testing was available to ask for the analysis.

While DNA testing was available in the Cotton case, analysis of several items collected from the crime scene were not completed before the trial and DNA was not introduced.

The victim in the case told Battle Creek police she was sleeping on the floor of her apartment and was awakened about 5:45 a.m. on June 28, 1998. She saw a man standing near her feet and first thought it was her boyfriend, but when she realized the man was a stranger she began to scream.

The intruder held her down and attempted to sexually assault her. When she continued to scream, he punched her in the face three times before getting up and fleeing.

The woman's phone was not working, and she ran outside and called for help from a neighbor. As she and the neighbor waited for police, the victim said a man walked up to grab his bike, which was leaning against the house, and told her that he had seen a man leaving the back of her house.

The victim told the neighbor the man with the bike was her attacker. He was apprehended by police a few blocks away. Cotton denied he was the woman's attacker or the man who retrieved the bicycle.

Akselrod argued Monday to Calhoun County Circuit Judge James Kingsley that eyewitness testimony is the least reliable evidence "and the leading cause of incorrect convictions."

She said DNA testing might provide significant information in the case. The woman bled on her sheets and nightgown from her attack and Akselrod argued her attacker might have left blood, hair or other biological evidence.

She told Kingsley she was not asking for a new trial but simply that a test be conducted.

Assistant Prosecutor Jennifer Clark argued there was no evidence that the attacker left any DNA and if Cotton's DNA isn't found, it won't mean he is innocent.

"While testing can be very useful, in this case it is of no consequence," Clark said. "It means very little because the defendant went to the crime scene and put himself there."

Prosecutor John Hallacy agreed that it's not clear if the findings will be significant.

"The next step is what does it mean," Hallacy said. "How material is it?"

Kingsley granted the defense motion, but ordered the tests be conducted at the Michigan State Police Crime Lab, not a private lab as suggested by Akselrod.

"We'll get the evidence to them as quickly as we can," Hallacy said after the hearing, "and ask them to put it on a priority list, but I imagine it will be two to four months."


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