Between the Cracks: Exonerating the Innocent

To continue with our series on the powerful benefits of testing every rape kit booked into evidence, we turn to one of the many cases solved after New York City cleared its backlog.

In March 1991, a 17-year-old girl was accosted in the elevator of the Manhattan apartment building where she lived. Her assailant forced her to the building’s roof and then raped and robbed her. 

For two months, the survivor stayed with relatives and avoided returning home, the scene of her assault. When she did finally return to her building on May 18,1991, she saw a man whom she believed was the assailant. She called the police and followed the man, whose name was Michael Mercer. 

Mercer was arrested, charged with rape, sodomy and robbery, and tried twice in 1992. A serologist testified at both trials that analysis of slides from the rape kit revealed no evidence of male DNA, and the kit and its content remained in storage. The first trial ended with a hung jury, but a second jury convicted Mercer. His sentence was 20 ½ to 41 years in prison. 

Mercer appealed his conviction on grounds of ineffective counsel and an excessive sentence, but the Appellate Division affirmed it unanimously. He filed motions seeking DNA testing, but the court denied them, finding there was no DNA to be tested. 

By March 2000, DNA technology was improving, and New York City had begun its project of testing all the rape kits in its storage facilities. Around this same time, state law required all felons to provide a sample for the DNA database. Mercer provided a sample in 2001. 

The evidence from Mercer’s case went to a private laboratory in January 2003, and an analyst was able to develop a DNA profile. That profile did not belong to Mercer. It belonged to another man, who was already serving two life terms for armed robbery, rape and other crimes. He could not be charged with this rape, however, because the statute of limitations had expired. 

The actual assailant and Mercer shared many similarities, including closeness in age and physical appearance. At the time of the rape, Mercer was a frequent visitor to a friend who lived on the 12th floor of the survivor’s building, and oddly enough, when the assailant entered the elevator right before the rape, he pushed the button for the 12th floor. Mercer had acknowledged that he saw the survivor in the building from time to time in March or April 1991. 

Upon Mercer’s release from prison after 12 years, then Manhattan District Attorney Robert Morgenthau said:

“We are grateful that DNA technology allowed us to exonerate an innocent man and we deeply regret that we were not able to do so sooner.”

DA Morgenthau also said he had learned of the new evidence just days before and moved quickly to confirm it and put Mercer's release in motion.

If not for New York City’s rape kit backlog project, Michael Mercer might have spent the rest of his life in prison for a crime he did not commit. By testing every rape kit in its storage facilities—regardless of how old the case was, whether it was solved by other means or whether the perpetrator was known to the survivor or a stranger—the city was able to take advantage of dramatic advances in DNA technology and to bring justice not only to Mercer, but also to countless survivors who had waited for far too long. 

In Detroit, as the city now works to clear its rape kit backlog, the Prosecutor’s Office there is proactively undertaking efforts to exonerate innocent suspects. The Office has partnered with the Michigan State Appellate Defender Office (SADO) to evaluate whether any of the city’s more than 11,000 backlogged kits could potentially exonerate someone who was wrongfully convicted of an offense without DNA analysis. SADO received a two-year grant from the Department of Justice’s Post Conviction DNA Testing Assistance Program to identify possible cases of wrongful conviction and analyze the evidence in those cases. 

Prosecutor Kym Worthy has said that while her office has not come across any such cases yet, it is a possibility. She added that should they find any cases of wrongful conviction, the office would proceed accordingly, including releasing the defendant or ordering a new trial.  

In recent years, the advances in DNA technology have revolutionized law enforcement’s ability to solve and prevent crime. Clearing a rape kit backlog can present a critical opportunity to use the current technology for cases that occurred before those advances. Going forward, sending all newly collected kits for testing can prevent grave injustices like those Michael Mercer and the survivor in his case suffered. 

- By Elizabeth Swavola, March 28, 2014

ENDTHEBACKLOG is a program of the Joyful Heart Foundation to shine a light on the backlog of untested rape kits throughout the United States. Our goal is to end this injustice by conducting groundbreaking research identifying the extent of the nation’s backlog and best practices for eliminating it, expanding the national dialogue on rape kit testing through increased public awareness, engaging communities and government agencies and officials and advocating for comprehensive rape kit reform legislation and policies at the local, state and federal levels. We urge you to learn more about the backlog, where it exists and why it matters. We invite you to take action and support efforts to test rape kits. Help us send the message that we must take rape seriously.

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