From The Ledger:

Man in Rape Case to Go Free

A man who has spent the past 35 years in prison apparently will
walk out of the Polk County Courthouse a free man Thursday.

State Attorney Jerry Hill plans to file a motion Thursday asking
that James Bain, 54, be released and monitored until his office's
investigation into new DNA evidence is complete, Hill told The
Ledger on Tuesday night.

"We're trying very hard to do the right thing regarding this
defendant but at the same time protect the public's interest,"
Hill said.

Bain, who is from Lake Wales, was convicted in 1974 of charges he kidnapped and raped a 9-year-old Lake Wales boy.

Circuit Judge James A. Yancey will hear the request Thursday, and if he agrees, Bain will walk out of the courthouse with his family rather than head back to his cell at Okeechobee Correctional Institution.

Last week, the Innocence Project of Florida and the Public Defender's Office revealed the results of a court-ordered DNA test on evidence from the case. The semen found on the boy's underwear, they said, could not have come from Bain.

Bain, 54, was just 19 years old when he was convicted. He has always maintained his innocence, and the Innocence Project, a legal defense organization that helped represent Bain and paid for the DNA testing, says the results prove it.

On March 4, 1974, the victim was sleeping between his sister and brother when a man silently stole through his bedroom window and kidnapped him, taking him to a nearby baseball field.

According to court records, the boy awoke and his abductor - whom he later described as a young man of 17 or 18 with a mustache, beard and sideburns - ordered him to take off his pants and then raped him. The attacker ran away, and the boy returned home, wearing a white T-shirt and underwear.

At the time of the trial, DNA testing was not available.

Since May 2001, Bain had asked the courts four times to take another look at the evidence. With help from the Innocence Project, he filed his fifth and final request in July. Yancey granted the motion in October, without objection from the State Attorney's Office, and allowed the test.

Since the results were released last week, Innocence Project lawyers and public defenders have urged prosecutors to act quickly to release Bain.

But first, prosecutors say they must verify and investigate the test results. The Florida Department of Law Enforcement is reviewing the DNA test, and investigators are looking into some other concerns. Bain's family members said another swab sample was taken from him last week.

If their investigation confirms Bain's innocence, the State Attorney's Office says it will file motions to set aside the conviction and to have charges dropped.

If he is released Thursday, Bain would be monitored under conditions similar to a pre-trial release until the State Attorney's Office investigation is complete.

At the time of the trial, DNA testing was not available.

Since May 2001, Bain had asked the courts four times to take another look at the evidence. With help from the Innocence Project, he filed his fifth and final request in July. Yancey granted the motion in October, without objection from the State Attorney's Office, and allowed the test.

That someone should have to ask that many times to have evidence not available at the time of trial to be considered again is wrong. There should be compulsory testing of all DNA in all past cases where evidence is available.

Originally Posted by rohara

That someone should have to ask that many times to have evidence not available at the time of trial to be considered again is wrong. There should be compulsory testing of all DNA in all past cases where evidence is available.

This only confirms that our system does not hold justice in high regard.