10 years out of cell, he’s still not free Convicted of child rape in ’81, former inmate wants DNA to clear his name By LISE OLSEN May 4, 2009 Donald R. Burke III, 61, a convicted child rapist and registered sex offender, has spent half his life trying to clear his name through a DNA test. The evidence samples, now nearly 30 years old, wait at a local lab. No innocence claim locally is as old as Burke’s, who served 18 years and was released from prison a decade ago. But his long legal struggle, plagued by delay, misinformation and poverty already got one unexpected result: It moved Harris County judges this month to revamp the way they handle all DNA retest requests, dozens of which are making their way through the system. “I am alone because I wear an “X” on my back,” Burke said recently. “I won’t get my life back until this false conviction is removed.” District attorney’s office investigator Johnny Freeze is a witness as Donald R. Burke III provides his DNA sample last week. After reviewing Burke’s case this year, Harris County Judge Randy Roll became convinced that DNA retest review should be streamlined and lawyers assigned such cases should have demonstrated expertise. At his urging, Harris County judges approved the changes this month. Nationally, a recent wave of DNA retests have resulted in the exoneration of dozens of convicts, including some in Texas. In 1980, a teenage girl spotted Burke standing with his wife on a city street and, in a horrifying rush of recognition, became convinced that he was the man who had raped her more than a year before. Burke recognized the girl too — as a waitress who had taken his orders at a Bellaire cafe. The prosecution in 1981 was based almost entirely on her testimony, court records show. The victim’s mother, who still lives in the Houston area, said her daughter never doubted Burke was her attacker. After the attack, she said she immediately took her daughter to a hospital, where physical evidence was collected. The evidence went untested and was not formally presented at trial, records show. Nor did the judge, now dead, permit the jury to hear testimony from an expert witness who theorized the girl could have confused a customer’s face with her rapist’s due to trauma and passage of time. Burke claimed innocence, but 12 jurors found him guilty and gave him a 50-year sentence. Released in 1999, Donald Burke has never been convicted of another crime. But as a registered sex offender, he has long been unemployed. In 2000, he first wrote to a Harris County judge to request a DNA test. In 2004, his request was denied. Sworn statements signed in 2001 indicated the evidence no longer existed. In January, Burke tried again and Judge Roll consented. It turned out sworn statements claiming there was no evidence, were wrong. Evidence did exist in hairs collected from the victim’s panties in 1979. Today, they are the key to Burke’s 30-year campaign to clear his name. Reporter Roma Khanna contributed to this report. lise.olsen@chron.com

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