A closer look at the James Bain DNA exoneration

by Kemp Brinson

With recent news about a DNA test suggesting that James Bain, a Polk County man, is innocent of the rape he has served 35 years in prison for, I thought it would be helpful to look more deeply at what happened in Mr. Bain’s case. From skimming the headlines, one would get the impression that Mr. Bain filed a motion for DNA testing, the State Attorney did not oppose it, the judge granted it, and here we are. That is most definitely not what happened. The truth is that Mr. Bain’s struggle has been a long and uphill battle. That he made it this far is nothing short of miraculous. Though the story is far from complete, we can glean a lot of information just from what is available on the internet about Mr. Bain’s case.

The  Polk County clerk’s online docket for Mr. Bain’s case1 only goes back to 1981 (he was convicted in 1974). But we know he appealed the case and was denied.2 I can’t tell what happened between 1975 and 1981. I ran some searches of some federal records that are not publicly available and could not find anything.

In 1981 when the Polk clerk’s docket starts there was some sort of motion for post-conviction relief being considered. It was denied, though it is hard to tell what it was all about. In 1985 he tried again, filing a “Motion to Transc” which may stand for Motion to Transcribe, as in transcribe the reporter’s record of the trial for appeal purposes, but I do not know for sure. Whatever it was, it was also denied. He sat in prison for another 15 years or so before getting a little busier in 2001.

In February 2001, Bain asked for a DNA test and was denied. He appealed the denial and lost the appeal in September, 2001.

While that appeal was pending, he filed a motion for post conviction relief (which may have included DNA testing – hard to tell) in May, 2001. It was also denied. He appealed that. That appeal was denied on the grounds that it was untimely.

He tried again for a DNA test in December, 2001 and was again denied.

He tried to get a DNA test again in October, 2003 – also denied. We know from some later documents that the denial was only because Bain had not included some of the required elements for such a motion. He would have been immediately entitled to refile it properly, but he did not.  He waited almost three years before refiling it.

Finally, in July, 2006, he filed a proper request. It was denied in October on the grounds that it was filed too late after the 2003 denial. In other words, if he had wanted to file a proper request, he should have done it immediately. But the 2003 denial did not have a deadline attached to it, and in June 2006 the relevant statute was amended to specifically say that there is no deadline for filing a motion for DNA testing. He appealed and won. In the appellate opinion, the appellate court said that Bain had the right to a hearing to determine if the DNA testing should be allowed, instead of having it dismissed on a technicality. The case was sent back to Polk County in August, 2007.

Back in Polk County, here is what the State of Florida argued, according to a later appellate opinion:

On remand, the State responded that certain physical exhibits (consisting of two pairs of trousers and two pairs of shorts) remain in the circuit court’s custody. However, the State contended that the motion is barred by the doctrine of laches because the trial transcript in the case has been long since destroyed and due to the destruction of the trial transcript, it is unclear whether the source of the physical evidence can be identified. The State also asserted that the arresting agency retains no records or physical exhibits. The State contended that even though rule 3.853 provides no deadline for seeking DNA testing, the State would be prejudiced by any DNA testing because it would be unable to reconstruct the over thirty-year-old case because the witnesses may not be located, their recollections would be substantially diminished by the inordinate passage of time, and records that could be used to refresh their recollections are unobtainable. The State also argued that the motion should be denied on the merits because the surviving records show that there is no reasonable probability that the DNA evidence would have resulted in an acquittal.

In other words, the State of Florida said that even though the pants were still available, the test should not be permitted because we don’t know where the “evidence” came from. (Say what? Do they think another adult man’s semen could have been there besides the rapist’s?) I love the last part: “The State also argued that the motion should be denied on the merits because the surviving records show that there is no reasonable probability that the DNA evidence would have resulted in an acquittal.” Really? If the jury had been informed in 1974 that DNA tests exonerated the defendant it would not have mattered and he would still have been convicted. Really?3

As incredulous as it sounds in hindsight, the trial court agreed and denied the motion without even having a hearing to determine if the State was correct about the unavailability of evidence and the effect testing would have had at trial. Very intelligently, Mr. Bain appealed again.

Luckily for Mr. Bain, the appellate court reversed the decision. It remanded the case back to the trial court and instructed the trial court to hold an evidentiary hearing to determine if the DNA test should be granted. By this time, it is April, 2009, and Mr. Bain still has not won the right to have a DNA test, only the right to have an evidentiary hearing to determine if he should be allowed to have a DNA test.

Finally, in October, 2009, Mr. Bain won the right get a DNA test as a result of the petition he filed in July, 2006. According to the paper, the State did not contest it in this final round, but they had certainly contested it every step of the way up to that point. It may be that the State realized that the cost of test was less than the cost to continue to fight, or it may be they had a change of heart. I’m sure they expected the test to come back positive.4

There is going to be a hearing today to determine what to do next. Importantly, the relevant statutes mandate that DNA testing must be done by FDLE, and that hasn’t happened yet. So there will be no final resolution, only a determination as to what to do with Mr. Bain pending final resolution.

What can we learn from all this?

Several things. These are the questions this case is making me ponder:

1. A lot of Mr. Bain’s attempts to get DNA testing were thwarted by technicalities. This is typical of a pro se (unrepresented) defendant and all sorts of resources were wasted: clerk court time, appeals court time, state attorney time, judge time, and a lengthy unnecessary prison stay for Mr. Bain. Prosecutors and law enforcement officers dislike the post-conviction appeal system because there are so many ways to continue to drag the process out, coming back over and over again. Defense advocates don’t like it because it is so hard of a system to navigate. If no one is happy with it, perhaps reforms are in order? But how do we do the right thing without unduly consuming resources?

2. At least four different judges denied prior requests for post-conviction relief. Judges Charles Brown, Dick Prince, Roger Alcott, and Stephen Selph. The judge who approved it, James Yancey, did not take over the case until after the last appeal. I have personally appeared before four of these five judges, and they are all good people. These decisions are hard. Nearly every single person in prison wants out and has plenty of time to draft motions and petitions of all sorts. They grasp at whatever they can, whether they are guilty or innocent. Figuring out which of the small number of these petitions have enough merit to grant is very, very difficult. Almost all of them are probably poorly written and/or technically insufficient. How should judges sort the meritorious from the merit-less in such situations? Should they merely apply the rules strictly and let the petitioners figure it out on their own, as happened here? Due to crowded dockets and lack of judicial support staff and public defender resources, that’s really the only option available to judges right now.

3. Do the rules of evidence or jury instructions need to be revised to take into account problems with eye-witness identification? This is a common refrain among defense advocates.

4. If reforms are implemented, how do we make sure that we are doing enough to protect ourselves from bad people? Let’s say someone is exonerated who was positively identified as a rapist by an eye-witness. Later DNA testing showed that semen from the victim did not match the defendant, but there is no way to prove with absolute certainty that semen was not from an earlier consensual sexual encounter with someone else. Nonetheless, he is allowed to go free because the DNA test would have created reasonable doubt in the mind of the jury. Later, the defendant goes on to commit another violent rape. Is this a miscarriage of justice? No matter what system we create, some innocent people will go to prison and some criminals will walk free. We have to minimize this, but it can never be eliminated. This is a price we pay to enjoy the freedoms we enjoy. This is not a comfortable truth.

5. Wrongful convictions disproportionately affect minorities and the poor. This is also an uncomfortable truth.

6. Do situations like this teach us anything about the death penalty?

7. Is it possible that Mr. Bain is guilty? (That’s easy – yes it is possible that he is guilty.) How sure of his innocence should we be before we let him go?

Further Reading

DNA exonerations are governed by Fla. Stat. sec. 925.11 and 925.12. The Defendant must petition the court for permission to do the testing, which the court will grant only if it finds that physical evidence that may have DNA exists, the DNA test would be admissible in court, and that the result would have made a difference at trial if the evidence was available then. Also see Rule 3.853, Florida Rules of Criminal Procedure.

As always, comments are welcome. What do you think about all this?

UPDATE 12/7/09: He’s free for good! Right before the hearing this morning, FDLE and the State Attorney blessed the DNA results and Mr. Bain was released permanently.

  1. You may need to click the link twice and acknowledge a notice to get a cookie. []
  2. The case was ‘per curiam affirmed’ which is legalease meaning that the appellate court found the decision easy and not worthy of further comment. []
  3. I’m not being fair to the State. It really isn’t this simple. But it certainly sounds ridiculous based on what we know now. []
  4. According to the Innocence Project, among their cases, which are highly screened for a likelihood of innocence, about 1/2 of the tests confirm guilt. No reliable statistics exist on how often DNA tests confirm guilt vs. innocence. See article from the ACLU. []