In what lawyers say is a first in Tennessee, a DNA test has exonerated a Memphis man of a rape for which he spent the past 22 years in prison.
At a hearing Thursday, defense attorneys say, they will ask a Shelby County circuit judge to free Clark Jerome McMillan, who is serving a 119-year sentence for the 1979 rape and assault of a teen-age girl in a Memphis park.
''We expect Clark to walk out of jail on Thursday,'' said his lawyer Peter Neufeld, who co-directs the Innocence Project in New York. The organization has used DNA, or genetic fingerprinting, to exonerate 107 people nationwide but none in Tennessee until this case.
The state does not dispute the result of the DNA test, which was performed by a Tennessee Bureau of Investigation lab.
'Was a mistake made? Yes, a mistake was made,'' said Assistant District Attorney General John Campbell.
Nonetheless, Campbell said, he may try to resurrect two other rape charges for which McMillan was indicted but never brought to trial, a move that might keep McMillan locked up.
''At this point, I'm not sure what we're going to do on Thursday,'' Campbell said. ''We could have tried this guy on other (rape) charges for insurance purposes, but it never crossed anyone's mind that it would be necessary. This is all so new. We haven't thought it through.''
Neufeld said he found Campbell's comments incredible and noted that last year he suggested the state also test the DNA from those cases, too -- an offer prosecutors didn't accept.
''I don't think it's fair to play up the suggestion that Clark has these other sexual assaults,'' Neufeld said. ''Right now, it's all just talk. This guy, in particular, deserves the benefit of the doubt because he spent almost 23 years in prison for a rape he most certainly did not commit.''
The DNA test of semen from the rape was returned April 18, and the defense filed a motion to dismiss the charges Friday.
The crime for which McMillan was sentenced occurred in the Overton Park area of Memphis on Oct. 26, 1979, at a time police were pursuing a serial rapist. According to the police, an intoxicated man approached a teen-age couple, forced them to strip and then raped the girl, 16, who was a virgin.
The girl identified McMillan through a lineup and through mug shots, said Campbell. The rapist has the same blood type as McMillan, Campbell said. DNA testing was not available at the time.
Neufeld said yesterday the victim's identification was flawed. For example, the victim did not mention McMillan's profound limp in her initial police statement, he said. McMillan wore a brace to support a leg once seriously wounded by a shotgun blast, the lawyer said.
Vanessa Potkin, an Innocence Project lawyer who has negotiated directly with Campbell, said she is under the impression that prosecutors will not oppose McMillan's release Thursday.
''It's so clear-cut here,'' she said of the case she began work on five years ago. ''I don't think there's any wiggle room on guilt.''
Campbell said he won't say what he'll do until Thursday, adding:
''Looking at the case 20 years ago, I don't imagine the prosecutors would have envisioned this happening and dismissed all the other charges. I think everyone was confident in the case. Our position is we're not interested in keeping in prison those who aren't guilty. That's the way we've approached this case from the beginning.''
Several defense attorneys familiar with the case, however, said the state would have a tough time bringing new rape charges against McMillan, given the likely lapse of memories and availability of evidence for both sides ó as well as potential procedural and constitutional hurdles.
''I'm sure prosecutors are just going to use these charges to undermine whatever publicity might come out of the fact that DNA actually cleared somebody,'' said Mark Ward, a Shelby County public defender who is president of the Tennessee Association for Criminal Defense Lawyers.
In exoneration cases in other states, Neufeld said, prosecutors have cast ''speculation and rumors about other sexual assaults'' to embarrass the freed inmate, ''but they've always turned out to be nonsense -- the type of cases where, when you look at it closely, there's nothing there and the charges just evaporate.''
Campbell said he isn't sure whether his office will pursue the case for which McMillan was convicted, given the passage of time and other limitations.
The victim in the case was upset and did not wish to make a statement, Campbell said.
McMillan, who is incarcerated in the West Tennessee State Penitentiary in Henning, was unavailable for comment, his lawyer said.
Kenneth Irvine, a Knoxville lawyer who is president of the Tennessee
Innocence Project, a group of defense lawyers, law
Irvine said the Tennessee group has rejected 150 cases and is scrutinizing the rest. About 10 of those, appear promising, including a few from Middle Tennessee, he said.
''Clark McMillan's exoneration may be the first for Tennessee, but it won't be the last,'' Irvine said.