DNA results to free felon

   A Homestead man convicted of rape in 1983 becomes the latest Florida inmate to be released from prison based on DNA testing. BY JAY WEAVER

Richard McKinley, a Homestead man imprisoned for almost 21 years in the rape of a young girl, smiled widely and blew kisses to his mother Friday in Miami-Dade Circuit Court after learning that, with the help of a DNA test, he will soon go free.

McKinley was convicted mainly on the testimony of the victim and a police officer, who caught him with his pants down. But last spring, McKinley was able to use a new Florida law on genetic testing to reopen his case.

The genetic results showed the semen recovered from the victim did not match that of McKinley, 45, who was serving a life sentence after his 1983 conviction of sexual battery of a minor under 12.

Earlier this month, prosecutors and McKinley's lawyer negotiated a deal that called for his conviction and sentence to be thrown out. But because prosecutors did not believe he was innocent, McKinley had to plead no contest to a lesser charge of attempted sexual battery to earn his freedom.

On Friday, Circuit Judge Maria Espinosa Dennis imposed a new sentence for the time he has already served -- 20 years and nine months -- at the Glades Correctional Institute in Belle Glade. McKinley could be released as early as Monday by the state Department of Corrections.

Despite the good news, his mother, Earline McKinley, did not crack a smile because she said she was so exhausted from the ordeal.

''I'm disappointed because I thought he'd be coming home today,'' said the mother, who attended the hearing with a friend.

McKinley's lawyer, Ivy Ginsberg, said his plea was ''not an admission of guilt,'' but rather the final chapter in his bid for freedom to be reunited with his mother. McKinley's father recently died.


McKinley's imminent release follows last month's 4-3 decision by the Florida Supreme Court to postpone the Oct. 1 deadline for incarcerated felons to prove their innocence with new DNA tests.

The old deadline was established in a law passed by the Legislature in 2001, as scores of inmates nationwide began proving their innocence with new DNA tests -- including two Broward County men who had been on Death Row.

But Miami-Dade prosecutors Michael Gilfarb and Penny Brill said McKinley's case does not fit the typical profile of a man wrongly convicted and then cleared by DNA testing years later.

''We're just as convinced now as we were then that he's guilty of the crime,'' Gilfarb said. ``But under these circumstances, at this time, this is the best solution.''

The state attorney's office agreed to the deal because the victim, now 32, did not want to go through the emotional trauma of testifying against McKinley again at another trial, Gilfarb said. She still claims he raped her and that a Homestead police officer witnessed him getting off of her, pulling up his pants and trying to escape.

''He literally got caught with his pants down,'' Brill said.


After his arrest, McKinley told police that he did not rape the girl. He said he was only urinating near the scene of the attack -- an alley between apartment buildings -- and that he tried to elude an officer because there was an outstanding bench warrant for his arrest.

Records, however, showed there was no such warrant.

Prosecutors acknowledged the DNA tests -- swabs of the victim's vagina -- showed the semen was not McKinley's. But they said the results didn't necessarily confirm he wasn't the rapist, claiming they only showed someone else had sex with her before the sexual battery.

That person was a man who was having consensual sex with her at the time, she told prosecutors in 1983. The man died in a shootout 19 years ago.

Gilfarb said prosecutors at the time initially built their case around testimony by the witness and the Homestead officer -- not the semen recovered from the victim. He said that at the 1983 trial, prosecutors argued only that the blood type of the recovered semen matched the same type as McKinley's.

DNA testing was not available then.

Under the terms of McKinley's plea deal, he will still have a felony criminal record and will have to register as a sexual offender with the state of Florida. But he was willing to live with that stigma in exchange for his freedom and no probation, Ginsberg said.


McKinley's case drew national attention from the media, partly because it was championed by the New York-based Innocence Project, headed by attorney Barry Scheck, who was part of O.J. Simpson's legal defense team.

Scheck, along with attorney Colin Starger, said in a prepared statement that ``[McKinley] continues to maintain his innocence.''

They expressed respect for his no-contest plea in exchange for freedom.

''As a practical matter, to pursue his claim of innocence at this point would require him to be litigating from a jail cell, perhaps for many more years,'' they said. ``This is not a perfect solution, but it certainly vindicates Mr. McKinley's efforts to obtain post-conviction DNA testing.''

Source: Miami Herald