THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Saturday, June 29, 1996 TAG: 9606290222
SECTION: LOCAL PAGE: B1 EDITION: FINAL
SOURCE: BY JON FRANK, STAFF WRITER
DATELINE: VIRGINIA BEACH LENGTH: 111 lines
A mistrial was declared in the rape trial of Kerri Charity on Friday after a jury, confused and divided over highly technical DNA evidence, could not agree whether he raped a woman in First Landing/Seashore State Park nearly three years ago.
The jury split 8-4, with the majority voting that Charity, 25, was guilty of raping a woman in the woods that bordered a jogging trail in the park on Oct. 11, 1993.
A juror contacted Friday, who asked not to be identified, said that he and seven others felt the DNA evidence was the single most convincing part of the commonwealth's case.
``It was the linchpin to close the case out,'' he said.
But for the others, the DNA analysis was not convincing enough to raise the commonwealth's case against Charity above the reasonable-doubt standard.
The juror also said he was worried that race may have played a role in deliberations. He said both blacks on the jury voted against conviction. Charity is black.
``I hate to think in this day and age that race is such a factor in deciding a person's guilt or innocence,'' the juror said.
Richmond attorney Sa'ad El-Amin, Charity's lawyer, discounted the race angle because two of the four holdouts were white. Instead, he called the hung jury a rejection of the courtroom use of DNA analysis, which has a 10-year history of acceptance by juries across the country in a variety of cases, many of them dramatic sex and homicide crimes.
DNA is a person's genetic coding and, like fingerprints, is slightly different in everyone.
``We think we have found a weak link in their case,'' said El-Amin, moments after the mistrial ruling was announced by Circuit Court Judge Frederick B. Lowe.
El-Amin promised to use the same argument that DNA is unreliable and bad science if the commonwealth attempts to re-try Charity on the Seashore State rape charge.
``If we could get four jurors to have a question, next time we think we can get all 12,'' El-Amin said.
He also said the hung jury could help get overturned on appeal four other rape charges Charity was convicted of last year. He was sentenced to seven life terms plus 80 years as a result of convictions in those rape cases.
``There are some things that happened in this case that were not brought up in the other cases,'' El-Amin said. ``They might make a difference.'' El-Amin would not be more specific.
Looking stunned and upset at the jury's inability to reach a unanimous decision, Prosecutor Al Alberi admitted that DNA evidence is technical and sometimes difficult to understand, but he would not speculate about whether it was the key to the case.
``Only the jurors know, and we won't invade their privacy,'' Alberi said.
Although Alberi promised to re-try Charity, Prosecutor Pam Albert conceded that there is a chance that Charity would not be re-tried on the Seashore State Park charge.
``Anything is possible,'' Albert said.
El-Amin said he was able to turn the commonwealth's evidence ``upside down'' by arguing that the confusing testimony about DNA technology could not be trusted.
During his closing arguments at the end of the two-week trial, El-Amin compared DNA to nuclear energy, thalidomide and Agent Orange - all creations of science that have been shown to be dangerous to human life after scientists claimed they were safe.
``Are you so satisfied with science that you can accept that DNA proves beyond a reasonable doubt?'' El-Amin asked the jury. ``I suggest that you can't.''
El-Amin also produced two witnesses - Charity's girlfriend and his father - who testified that Charity was with them on the day the rape occurred. Both said Charity never spent more than 30 minutes out of their sight from mid-morning until night on Oct. 11. That would have made it impossible for Charity to have been at the park when the crime was committed, they testified.
The rape allegedly occurred shortly after 5:30 p.m. when the victim was taking her daily jog through Seashore State Park. The victim testified that when she ran past the defendant on the jogging trail, she noticed his ``wide smile,'' slim body type, coloring and head shape.
``I always notice everyone while I'm running,'' the victim testified. ``My own reaction was that he was just sort of strange.''
Moments later, the woman was grabbed from behind and forced into a thicket bordering the jogging trail. The victim claimed the assailant said he had a knife and and then raped her.
In March 1994, the victim picked Charity out of a videotaped lineup.
Prosecutors claimed the defendant was scratched when he forced the victim through the underbrush at the park and bled on the victim's jogging shirt. Three spots of blood on the shirt were analyzed by DNA technology to tie Charity to the crime.
The main DNA expert, David A. Pomposini, of the Virginia Division of Forensic Science, spent more than four hours this week testifying about DNA and using an array of terminology, such as auto rads, de-naturing, probes and DNA sequencing, to make his case that Charity was the person who deposited the blood on the shirt.
He called the five-probe match that tied Charity to the blood spots ``extraordinarily rare'' and said there was only a 1 in 13 billion chance that some other African-American had dripped the blood on the shirt.
But Pomposini also admitted that there was a margin of error with DNA technology of about 5 percent, something that El-Amin seized on and made the most of.
The ``fudge factor'' of 5 percent, El-Amin said ``causes the commonwealth's case to totally fall down in the DNA evidence.''
Claiming that he was sure the testimony had confused at least a few of the jurors, El-Amin told the jury, ``If you accept the DNA evidence, you have to accept it on faith . . .''
At least one member of the jury expressed her sentiments to a fellow juror during a lengthy cross-examination of Pomposini Thursday.
As she leaned over to the woman sitting next to her, she whispered, ``I'm lost.'' ILLUSTRATION: Color photo
Kerri Charity's girlfriend and his father testified that Charity was
with them on the day of the rape. by CNB