New York Times

After 21 Years, DNA Testing Sets Man Free in Rape Case

By NICHOLAS CONFESSORE
October 7, 2006


If not for a chance inventory of DNA samples gathering dust in a Connecticut warehouse, Scott Fappiano might still be lifting weights in prison.

But after the samples were discovered by his lawyers last year, Mr. Fappiano finally had the evidence he had sought for half of his life. Yesterday, a State Supreme Court judge vacated his conviction for the 1983 rape of a Brooklyn woman, after the tests showed he had not committed the crime for which he spent more than two decades in prison.

Several hours after the judge’s ruling, Mr. Fappiano shuffled out a steel door into the hallway of a Brooklyn courthouse, clutching a brown paper bag of personal items in one hand along with every relative within arm’s length with the other.

Scott Fappiano, convicted in 1983 of raping a police officer's wife, was set free after a DNA test exonerated him.

“I just kept waiting,” said Mr. Fappiano, 44, stuffing his hands into the pockets of his gray sweat pants as his mother, a brother and several cousins looked on. “I’m just happy that it’s over.”

His family and lawyers were less forgiving, their elation warring with anger and frustration as they mulled the long path that Mr. Fappiano traveled between conviction and redemption, with 21 years of it in prison.

“The only thing I feel is that my son was kidnapped,” said Rose Fappiano, his 69-year-old mother. “I couldn’t believe this day had come.”

Mr. Fappiano was represented by lawyers from the Innocence Project, a nonprofit legal clinic that works to exonerate the wrongfully convicted through DNA testing. He was the fourth person in the last year in New York State to be exonerated by testing arranged by the project’s lawyers, who yesterday called for a full-scale reform of the city’s procedures for storing evidence.   

“It is no small miracle that Scott is here today,” said Nina Morrison, his Innocence Project lawyer. “Had Scott’s case depended on the evidence storage and collection inventory procedures of the New York City Police Department, he would still be in prison today.”

In a statement, Paul J. Browne, the Police Department’s deputy commissioner for public information, said that the department had requested proposals for a more advanced evidence tracking system to replace the current one. “The advanced system will be used, in part, to improve retrieval of old evidence, which has sometimes proven difficult considering the extraordinary volume and the lack of an automated system in the 1980’s and 1990’s,” he said.

In a separate statement, the Brooklyn district attorney, Charles J. Hynes, called Mr. Fappiano’s imprisonment a “tragedy.” Mr. Hynes also said that while Mr. Fappiano was convicted long before his tenure as district attorney, his office “conducted extensive investigations into this case and moved immediately to have him released” once the new DNA tests were performed.

The Brooklyn woman, who was not named in court documents, was raped several times in different rooms of her and her husband’s house in December 1983. Her husband, a police officer, had been tied up by the rapist in the couple’s bedroom with a telephone cord. The rapist had broken into the house and carried a gun, court documents said.

The woman identified Mr. Fappiano as her rapist while flipping through police photographs of men who matched the general description of her assailant, and later picked him out of a lineup, though he was five inches shorter than the man she said had attacked her and had shorter hair.
But the woman’s husband did not identify Mr. Fappiano out of the lineup. Though investigators retrieved nearly a dozen pieces of physical evidence of the crime -- including cigarettes the rapist had smoked, vaginal swabs from a rape kit and semen stains on a towel and on a pair of sweat pants the victim put on after the attack-- blood tests failed to link any of it to Mr. Fappiano.

A jury deadlocked in his first trial, before a second jury convicted him in 1985, with a sentence of up to 50 years in prison.

“Going to jail for rape is hard,” Mr. Fappiano said yesterday, recalling a prison pecking order in which only pedophiles rated less respect than rapists. “Going to jail for rape when a police officer’s wife is involved is really hard.”

He spent four years in prison before he first requested DNA testing of the physical evidence in the case, after reading about the process in a newspaper in 1989. A judge agreed to send the victim’s sweat pants to Lifecodes, a DNA laboratory, now defunct, for testing. But the technology at the time was not sophisticated enough to produce a DNA profile from the sample, and Mr. Fappiano remained in prison.

In 2002, the Innocence Project agreed to represent Mr. Fappiano, who hoped that more advanced DNA testing would exonerate him. The Brooklyn district attorney’s office agreed to help.

But after a yearlong search that covered the city agencies that had had custody of the original physical evidence, the officials could not find any of it. The district attorney’s office did not have it. It was not in police storage at Pearson Place in Queens. The sweat pants, the cigarette butts, the rape kit — all the evidence seemed to have disappeared. Worse for Mr. Fappiano, the paper trail appeared to end in 1985.

“No one could find the evidence,” Ms. Morrison said, “but more troublingly, no one knows what happened to it.”

So Mr. Fappiano waited. When the parole board offered to consider reducing his sentence in exchange for an admission of guilt, he declined.

“I never gave up hope that I would come home,” he said yesterday. “But I didn’t want to come home until I could prove I was innocent.”

Lifecodes was later acquired by a Orchid Cellmark, a testing laboratory based in Maryland and Texas, which also inherited the Lifecodes testing materials from the 1980’s and 90’s. The materials were stored in a warehouse in Connecticut until last summer.

In August, an official at Orchid Cellmark contacted Ms. Morrison to tell her that an inventory of those materials had turned up the two test tubes with Mr. Fappiano’s case number on it. They contained DNA material drawn from the sweat pants, which was retested by the city medical examiner this summer, along with a new DNA sample from Mr. Fappiano. Last month, prosecutors informed Mr. Fappiano that he had been conclusively ruled out as the source of the samples.

He appeared briefly in court yesterday, near lunchtime, standing before Justice L. Priscilla Hall as she considered a motion for his release. When it was granted, his mother stood and wept.  “Scott, we made it!” she cried.

But not quite. The wheels of justice turned no quicker for Mr. Fappiano after his innocence was confirmed than they had when his innocence was in doubt. It took four hours for the requisite state and city officials to sign off on his release, and it was not until late in the afternoon that he emerged from custody, in good spirits and itching for Italian food.

“It’s the easiest thing in the world to get into jail,” he said, “and the hardest thing in the world to get out.”

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