A mentally challenged 12-year-old boy picked Johnnie Dunning out of a photo lineup and reportedly told his stepfather that "a black man raped me."
Dunning, who is black and lived near the boy in Fort Worth at the time, initially claimed innocence but later pleaded guilty to raping the boy and has spent the last 21 years behind bars, the last 19 in prison. The boy claimed he was sexually assaulted at his apartment complex in September 1996.
But previously untested biological evidence taken from the boy's underwear did not match Dunning's DNA and an appeals court has ordered a new trial for the 57-year-old man, who has been locked up since being arrested on Sept. 9, 1996.
The appellate court judges concluded that chances were better than even that jurors would not have convicted him had the results from DNA tests been available.
Dunning had been trying to get the state to do the DNA testing since 2010, according to his attorney, William H. "Bill" Ray.
According to the court's opinion, the jury based its verdict on the testimony of the boy, who was mentally challenged and deaf. The boy told police that a black man had raped him and he picked Dunning out of a photo lineup.
The Tarrant County district attorney's office has said it will challenge the appeals court ruling, which was issued March 1.
"We agree with the trial judge who heard all the scientific testimony," said Sharen Wilson, Tarrant County district attorney.
Dunning's defense attorney was prepared to present evidence during the 1999 trial that Lorne Clark, the boy's stepfather, was the actual assailant. Clark lived in the same apartment with the boy and pleaded guilty to sexually assaulting two girls who lived at the same complex as the boy a few weeks before Dunning's trial was scheduled to begin, the opinion stated.
But a judge would not allow the evidence against Clark to be presented during trial, the opinion said. Clark had also been convicted of a previous sexual abuse charge in Arkansas, the court's opinion stated.
The judges said that had the judge not blocked Dunning's defense attorney from presenting evidence that someone else did the crime, Dunning would not have pleaded guilty.
Dunning's attorney was also prepared to argue that Clark was in a position to coach the boy to say that "the black man raped me." Clark helped identify Dunning as a suspect, according to the opinion.
"When the trial court ruled that Dunning would not be able to present this evidence, Dunning entered into a plea bargain," the appeals court opinion stated.
Dunning had initially pleaded not guilty to an aggravated sexual assault of a child charge during his trial, according to the opinion, written by the Second Court of Criminal Appeals in Fort Worth.
'I am not guilty of molesting my stepson'
Clark, who is serving a life civil commitment term in the Littlefield Unit for Sexual Offenders, said he did not sexually assault his stepson. Clark was assigned to Littlefield after serving two 17-year-sentences for aggravated sexual assaults out of Tarrant County and a 10-year-sentence for first degree sexual abuse case out of Arkansas.
Under Texas’ civil commitment law, repeat sex offenders who have been deemed likely to commit new crimes may be ordered into a supervised treatment program by a judge on their release from prison.
"The judges need to talk to the victim in this case," Clark said. "The victim will tell them that the one he identified is the one who did it."
The authorities should compare his - Clark's - DNA with the DNA from the sample, Clark said, adding that it was strange that the court would come up with this ruling after more than 21 years had passed.
"All they have to do is check my DNA with the sample they have and that'll be pretty much case closed," Clark said. "My DNA has been on file since 1999. I am not guilty of molesting my stepson."
Leslie Johns, the attorney of record for Clark during plea bargain negotiations in his cases, declined to comment.
Because the case is still pending, the Tarrant County DA's office declined to say whether the third party DNA found during the biological evidence tests has been compared with Clark's DNA.
Ray said he is unable to order the test for Clark and that the unknown person probably could not be identified because of the nature of the sample.
"However, Clark, or any other person’s DNA could be compared with the results and potentially excluded as Johnnie was," Ray said.
Key evidence not allowed
Dunning had two previous credit card abuse convictions out of Dallas that are no longer classified as felonies, which increased Dunning's maximum sentence to life in prison, the court opinion stated.
Prosecutors offered a 25-year-prison sentence for Dunning's guilty plea. Prosecutors also agreed to allow Dunning to appeal the ruling, acknowledging the argument that Clark may have committed the crime.
Three weeks after his conviction Dunning filed a motion that said his plea was a mistake caused by the judge's ruling that evidence implicating Clark could not be presented at trial.
The court denied the motion while acknowledging that the only evidence linking Dunning to the victim was that the victim identified Dunning in a photo lineup.
Of the 354 DNA exonerations that have been recorded by the Innocence Project, 28 percent have involved a false confession and 39 of those who confessed have pleaded guilty to crimes they did not commit, records show. The Innocence Project works to exonerate the wrongly convicted through DNA testing and works for criminal justice reform.
Corey Session, a longtime criminal justice reform advocate who fought for the posthumous exoneration of a brother convicted of rape, Tim Cole, said the Innocence Project has exonerated a number of people who have made false confessions even after the statute of limitations in their cases has expired.
"At a minimum this DNA should be submitted to CODIS (the Combined DNA Index System, the FBI's software used for matching DNA profiles) to see who it belongs to," Session said. "We can't keep people in prison just because they made a false confession."
Dunning first requested post-conviction DNA testing in 2010, which was granted after a four-year delay. At the time Dunning was not represented by an attorney. An initial DNA test was conducted by the Texas Department of Public Safety Crime Laboratory but the results were inclusive, the opinion stated.
Ray was appointed as Dunning's attorney and had additional DNA testing done by the California-based Serological Research Institute.
"It appears that this request did not make it to the DA appellate section until 2014," Ray said. "I was never able to find out why this happened, but it does not appear to be due to any intentional act by anyone. "
The DNA test report showed that none of Dunning's DNA was present in the sample, while the victim's DNA and DNA from a third party was present, the court's opinion said.
The appeals court said if the DNA results been available at trial, there is a 51 percent chance that the defendant would not have been convicted.
Prosecutors argued that the lack of Dunning's DNA does not prove his innocence. Prosecutors also argued that Dunning's guilty plea in addition to a positive identification in a photo lineup are sufficient evidence of guilt, the appeals court opinion stated.
But the appeals court agreed with Dunning, who argued that the lack of any DNA from Dunning, and the presence of DNA from a third party, entitles Dunning to a favorable ruling.
The court also said in its opinion that, "We must consider with the undisputed facts that the complainant was 12 years old, was mentally and hearing impaired, lived with Clark, and according to Dunning's trial counsel, could have been easily manipulated by Clark to deflect suspicion away from himself, and that Clark had spoken to police and reported that the complainant had said that 'a black man raped me.'"