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With Consent of New York County District Attorney’s Office, Two Men Exonerated of 1992 Rape Conviction

By Innocence Staff

Gregory Counts moments after his exoneration on May 7 In New York City. Photo by Sameer Abdel-Khalek.

DNA and Other New Evidence Proves the Two Men Served a Combined 36 Years for a Crime that Never Occurred

(New York – May 7, 2018) With the consent of the District Attorney’s Office, today a New York County Supreme Court judge vacated the convictions of Gregory Counts and VanDyke Perry for a 1991 gang-rape that the complainant now acknowledges never occurred. DNA testing that identified another man’s sperm in the complainant’s underwear led to a joint reinvestigation between the Innocence Project, the Office of the Appellate Defender and the New York County District Attorney Office’s Conviction Integrity Unit, revealing that law enforcement failed to fully investigate the case that resulted in two young black men serving a combined 36 years for a crime that never occurred. Counts, represented by the Innocence Project, served 26 years before he was paroled last year. Perry, who was paroled in 2001 and is represented by the Office of the Appellate Defender Office of the Appellate Defender’s Reinvestigation Project, served 10 years.

Donate: Greg and his family have set up a fundraiser page for those wishing to contribute 

“We are grateful to the New York County District Attorney’s Office for working collaboratively with us and moving quickly to restore justice to Mr. Counts and Mr. Perry,” said Barry Scheck, co-director of the Innocence Project, which is affiliated with Cardozo School of Law. “This case underscores why it’s critical that prosecutor conviction integrity units work collaboratively with defense attorneys, and we are hopeful that the Conviction Integrity Unit will make this level of collaboration a standard part of its process moving forward,” said Scheck, who serves as an advisor to that Unit.

Related: Connecticut Man Exonerated After Serving 16 Years for a 1991 Murder He Didn’t Commit

Seema Saifee, a senior staff attorney with the Innocence Project, added, “This 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.”

Greg Counts and his legal team Seema Saifee, Rana Sahar, and Ilana Kornfeld. Photo by Sameer Abdel-Khalek.

Counts, then 19, and Perry, then 21, were convicted of the alleged 1991 sexual assault based on the testimony of a woman who claimed that the two men and a third man, Leonard Jones, who was never arrested, abducted her near a Queens subway station, forced her into Jones’s two-door brown hatchback and drove to Central Park where the three men took turns sexually assaulting her in the backseat of the car and outside in the park. Prior to trial, earlier generation DNA testing of sperm found on the complainant’s underwear, which she pulled back on immediately after the alleged rape, excluded the two men as the source. The complainant’s treating physician also observed no evidence that she had been punched in the face or experienced other physical trauma as she had claimed.  Although there was no other witness or evidence against the men except the complainant’s testimony, both men were convicted.

Numerous pieces of evidence should have given police and prosecutors pause before bringing the case to trial with the evidence that existed at the time – even a grand juror questioned the prosecution as to whether there was any physical evidence that the complainant had been raped.  Prior to trial, the complainant gave widely conflicting accounts of the alleged crime. After making the initial accusation, the complainant became uncooperative with the district attorney’s office.  After the DNA results excluding the defendants were made known to the complainant, she told the jury that she had unprotected sex both the night before and the morning of the incident with her boyfriend. The prosecution argued to the jury that the sperm in her underwear came from her boyfriend. Neither the prosecution nor the defense moved to have the boyfriend’s DNA analyzed to test that assertion.

Perry insisted that he was at work and had time sheets to corroborate that claim; Counts said he was babysitting his brother. “If a root cause analysis is done on this case involving all the criminal justice stakeholders, and it should be so we can learn from it, I think we will find this miscarriage of justice was avoidable and all the stakeholders bear some responsibility,” said Scheck.

“This case paints a very dark picture of the criminal justice system in New York City, especially at that time and continuing today.” Seema Saifee

Approximately two months before reporting that she was sexually assaulted, the complainant’s boyfriend (the father of her two children) shot Perry in their Queens apartment. The boyfriend sold drugs with the three men and owed them money. Perry went to the hospital for a gunshot injury to the foot. Police attempted without success to locate the boyfriend.

Police in Queens informed the Manhattan Sex Crimes Squad (which was investigating the alleged sexual assault) that the boyfriend was wanted for a shooting shortly after the complainant claimed to have been sexually assaulted. The boyfriend was then arrested and charged for the shooting while visiting the complainant who was being treated in the hospital for the alleged sexual assault.

After his arrest, the complainant’s boyfriend offered to help police find the alleged third assailant, Leonard Jones.  The boyfriend drove around Queens with police, and pointed out Jones’s home, as well as the car in his yard, as the vehicle in which the complainant was allegedly sexually assaulted.  Police never seized the car, which was sitting in his yard, nor searched it for any physical evidence, such as semen, hair or fingerprints.

Three months later, all charges against the complainant’s boyfriend for the shooting were dismissed. It remains unknown why law enforcement never prosecuted the complainant’s boyfriend for shooting Perry. The defense requested evidence as to whether the boyfriend received any leniency or deals on the shooting charges but none was disclosed.

After his conviction, Counts sought the help of the Innocence Project, which ultimately received the consent of the New York County District Attorney’s Office to conduct additional DNA testing. More advanced DNA testing that was not available at the time of trial identified a male profile from a sample remaining from the semen found on the complainant’s underwear.  In 2016, the profile was placed into the FBI’s national offender CODIS database and hit to a man, now deceased.

Based on this information, the District Attorney’s Office sent an investigator to speak with the complainant who showed her a photograph from 1991 of the man whose semen was found in her underwear at the time she reported being the victim of a sexual assault.  The complainant maintained that the man depicted in the photograph was neither the third attacker nor a consenting partner, and she did not recognize him. This and other new information from the complainant resulted in the collaboration between the Conviction Integrity Unit, the Innocence Project and the Office of the Appellate Defender’s Reinvestigation Project to conduct a thorough reinvestigation of the case.

Investigators for the District Attorney’s office and the Innocence Project and Office of the Appellate Defender together located Jones, now living out of state, who insisted that neither he nor the other two men raped the complainant and stated that he has lived for the past three decades with the fear of being arrested on the false charges.

After a joint collaboration and interviews of other witnesses, the investigators ultimately spoke to the complainant again, who now fully acknowledges that the rape never occurred, recanted her trial testimony about the kidnapping and sexual assaults and stated that she was pressured into concocting the false accusation by her boyfriend who owed money to the men.

Counts and Perry were joined in court by Jones as well as family and friends when the indictment was officially dismissed today before Justice Mark Dwyer.

14 Comments

  1. Lori Hall

    What happened to the woman who falsely made the report

  2. Robert Mills

    The New York Times covered the story today. Believe it or not, the headline was, “Justice for 2 Men Falsely Accused of Rape.”

    I wrote to them, asking how 37 years of incarceration could possibly result in justice. I also asked, “Why is the woman who falsely accused them entitled to anonymity?” And, “Since she lied under oath in court, why isn’t she being prosecuted?”

    I doubt the letter will be printed. But it felt good to write it.

  3. Robert Perry

    Right now I am living that same nightmare here in the state of Washington. I was told by so many that nothing can be done for me.

  4. Mary Promisloff

    Is there any way I can communicate with Mr. Perry? I am a 75 year old white woman living in
    Portland, OR, and I am so outraged by this injustice I want to express my feelings to him.
    this woman should be sent to jail for at least as long as these two innocent men spent there! Why is what she did not a crime? She stole their lives from them. The final injustice is that they still have all that on their records, including sex offender! How are they ever able to get back into society when this cloud hangs over their head?

  5. Mary Peterson

    PRAISE GOD Mr. Counts and Mr. Perry are free!! Tragically, this happens every day in corrupt courtrooms in America. Two months before Martin Peterson’s trial in 2012, Florida Assistant State Attorney Erin Corcoran Daly showed the false accuser and the outcry witness the two disclosure notes – the only evidence in the case – and they identified opposite notes. Then, knowing the teens were lying, ASA Daly negotiated a plea deal (which Mr. Peterson rejected), filed a false Amended Information sworn document, reversed and relabeled the notes, and proceeded to trial, where she falsely testified and suborned perjury. ASA Daly committed criminal Contempt of Court, a felony punishable by prison time, but Mr. Peterson was the one sent to prison FOR LIFE! We presented the irrefutable, black/white evidence of ASA Daly’s crime to her boss, State Attorney Brad King, The Florida Bar, and the Hernando County Professionalism Panel, but they have all refused to hold her accountable. No one wants to punish Assistant State Attorney Erin Corcoran Daly, which means Mr. Peterson and everyone reading this is being denied equal protection under the law. I urge everyone to speak up, speak out, and HOLD STATE ATTORNEY’S ACCOUNTABLE!!

    • Lurceta McKnight

      My fiance has been locked up for almost 18 years for a crime he didn’t commit. I’m attempting to get justice for him and his family but this process is so slow and there is so much red tape.

  6. john vince

    what about the woman that made the claim?
    let us know what happens to her now?

  7. Laurence P. Mitchell

    The accuser absolutely destroyed the lives of these two men and their families and does not seem to suffer any consequences of her lie except for a guilty conscience. One major question- why isn’t she identified? It is really IMPORTANT that she be publicly identified. Any woman can point a finger and falsely accuse a man of rape. His name is all over the paper and social media but her name remains protected. Why? A man is innocent until proven guilty so using the same logic his name should be protected, too.

    As far as the unidentified accuser, she should be sentenced to a minimum of 37 years- the combined time these two victims were incarcerated. The unfathomable damage has been done and she should be prosecuted and jailed. Only when this happens will the two real victims have some idea that justice was truly served.

    I am beyond outraged and feel that false accusers be accountable for their actions.

  8. P King

    the article points the finger at shoddy police work, and it was. but if good work had been done and the accuser’s story found false – another woman disbelieved! the patriarchy strikes again! power disparities work in every direction: here, men’s lives were destroyed on the word of a woman.

    i have been a supporter of the innocence project in the past and am currently a supporter of exoneration initiative. being false convicted is about the worst experience in the world, i think.

  9. James Freund

    Absolutely. Right on all accounts. Thing is, your points are beyond obvious. So what does that tell us? Women are a favored class. And so what needs to happen? I’d really like to hear what could be done.

    • Deborah Stahl

      Women, actually victims, are a favored class in the criminal justice system especially in the area of sexual assault. Not so much in other areas, such as health care policy, for example. The woman here should be prosecuted.

  10. Charlie Kiker

    This is the same song-42nd verse. The police and the prosecutor as well as Mr Perry’s defense lawyer in the original trial got some ‘splainin’ to do.
    I hope Mr Clark and Mr. Perry recieve monitory justice from New York City and the state of New York.
    How do these people sleep at night!
    If there is no evidence, you must acquit. The jury should be ashamed of themselves too.
    Charlie Kiker RN

  11. Carolyn Morrow

    I’m trying to prove that my son is innocent he’s been in prison for 23 years on January 23 2019.he was offered a plea but he told them he would not plead guilty for a crime he did not commit but they found him guilty and gave him 90 years he has two girls they were real little at the time his children has children now he needs to be home with his family . Is there anyway that you can help us his name is Jody Larry Morrow He’s in prison in Lumberton North Carolina if you can please help him you can contact me I’m his mother Carolyn Morrow you can contact me at 706-400-2298 I hope I hear from you thank you

  12. Jaymar Griffin

    To one of my great friends aka ” Heav” Greg Counts you always had mercy in your heart for others. You are a true representation of victory. I love you my brother. Jaymar Griffin. 585- 905-9827

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