By Frederick H. Lowe
Two men, who served a combined 36 years in prison for a 1991 kidnaping and gang rape that never occurred because the woman lied, on Monday had their convictions vacated. The woman, however, will not be prosecuted for lying under oath because the statute of limitations has expired.
Gregory Counts and VanDyke Perry had their convictions vacated by a New York Supreme Court judge after DNA testing identified another man’s semen in the complainant’s underwear.
The semen sample led to a joint reinvestigation of the rape by the Innocence Project, the Office of the Appellate Defender and New York County District Attorney Office’s Conviction Integrity Unit which discovered that law enforcement failed to investigate the case fully.
Counts, represented by the Innocence Project, served 26 in prison before he was released in 2017. Perry, represented by the Office of the Appellate Defender’s Reinvestigation Project, served 10 years in prison and was released in 2001.
Manhattan District Attorney Cyrus R. Vance, Jr. said it’s every prosecutor’s nightmare to convict and innocent person. This case is a tragedy for all involved –two New Yorkers were wrongfully deprived of their liberty during the prime of their lives for a crime they didn’t commit, Vance added.
Barry Scheck, co-director of the Innocence Project thanked the Manhattan District Attorney’s Office for its assistance. “We are grateful to the New York County District Attorney’s Office for working collaboratively with us and moving quickly to restore justice for Mr. Counts and Mr. Perry,” Scheck said.
Seema Saifee, a senior staff attorney with the Innocence Project, said the case paints a very dark picture of the criminal justice system in New York City, especially at that time and continuing today. “Like so many other cases that have come to light in recent years, these young black men were aggressively prosecuted and given lengthy prison sentences with very little care for finding the truth,” Saifee added.
Counts was 19 and Perry was 21 when the woman lied during court testimony that the two men and a third man, Leonard Jones, abducted and raped her at knife point near a Queens subway station.
She claimed the men sexually assaulted her in the backseat of their car near Central Park. Police never arrested Jones. The woman claimed the men repeatedly raped her, sodomized her and punched her in the face, but an examining physician did not find any evidence of the alleged acts of violence. The semen found in her underwear was never tested for DNA, and the car where the alleged sexual assaults took place was never searched for evidence.
Based on her testimony, a jury in 1992 convicted the two men of rape, sodomy, kidnapping and criminal possession of a weapon, although they had confirmed alibis.
Following the joint investigation, investigators spoke again to the woman who admitted that rape never occurred, that she had engaged in unprotected sex with her then boyfriend on the night of and on the morning after the alleged rape had taken place and that her boyfriend forced her to lie because he had dealt drugs with both men and owed them money. The boyfriend, who is believed to be dead, also had shot Perry in one of his feet.