The Rape That Wasn’t

8/18/2019 The Rape That Wasn’t

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The Rape That Wasn’t — America’s First DNA Exoneration

The forensic DNA age dawned in America with little fanfare on August 14, 1989, whenthe emerging technology exonerated a hapless high school dropout from a working-classsuburb of Chicago, of a rape that in fact had not occurred.

Gary Doston had been convicted a decade earlier, when he was 22 years old, based on astory fabricated by his presumed victim, Cathleen Crowell.

On the night of July 9, 1977, a police patrol officer happened upon Crowell, then 16,standing beside a road not far from a shopping mall in Homewood, a suburb of Chicago, where she worked as a fry cook and cashier in a Long John Silver’s seafood restaurant.Her clothing was dirt-stained and in disarray.

Crowell tearfully told the officer that, as she walked across the mall parking lot after work, a car with three young men in it darted toward her. Two of the men jumped out,grabbed her, and threw her into the backseat. One of them climbed in beside her and theother joined the driver in the front. The man in the back torn her clothes, raped her, andscratched several letters onto her stomach with a broken beer bottle. “I tried to fight himoff,” she said, “and I couldn’t.”

Unintended consequence

Crowell ultimately acknowledged that she had made up the entire scenario and inflictedsuperficial injuries on herself, because she feared that she might have become pregnantthrough consensual sex with her boyfriend the previous day. Her intent in faking thecrime had been only to create a plausible explanation in the event her fear came true, which it never did. It had not occurred to her that there could be official involvement.

The officer took Crowell to South Suburban Hospital, where a rape examination wasperformed. Her underpants were found to contain what misleadingly would be referredto as a seminal stain — it actually contained a combination of semen and vaginal fluid — extending for eight inches up the back of the garment from the crotch to the waistband.

The underpants and several hairs, which were recovered from a combing of her pubicarea, and a vaginal swab were preserved as evidence. The emergency room physician

also made a drawing of the marks on her stomach, indicating that each letter had beenformed by a series of superficial scratches appearing in a peculiar crosshatched pattern;the intent could have been to spell love and hate, but the letters were not legible enoughto say for sure.


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Hoax gets out of hand

Three days later, at the request of police, Crowell’s parents took her to the Homewoodpolice station, where she worked with a sketch artist to make a drawing of the inventedassailant. She described, and the artist drew, a young white man with stringy shoulder-

length hair, but no facial hair.

Two days after that police brought a mug book to her home, from which she identified aphotograph of Gary Dotson. She said later that the police pressured her to pick thephotograph, pointing out how closely it resembled the composite sketch. Police deniedthe allegation. In any event, Dotson was arrested the next morning at his nearbyCountry Club Hills home, where he lived with his mother and sister. Although Dotson,then 20 years old, had a mustache that he could not have grown in five days, Crowellproceeded to “positively” identify him in a police lineup.

At Dotson’s trial in the south suburban Markham branch of the Circuit Court in May of1979, the prosecution presented two substantive witnesses. One was his presumed victim. She was a student at Homewood-Flossmoor High School, where she swam on the junior varsity swim team, studied Russian, and was regarded, generally, as a model ofhard work and achievement. She identified him in open court, declaring, “There’s nomistaking that face.” The second witness was Timothy Dixon, a state police forensicscientist assigned to the case. Dixon began his testimony, setting the tone for much of what was to follow, by falsely claiming to have done “graduate work” at the University ofCalifornia at Berkeley. In fact, he had only attended a two-day extension course there.

Perjured forensic testimony

Dixon proceeded to testify that he had detected type B blood antigens in the stain in

Crowell’s underpants. As a result, he asserted, the man from who the semen emanatedhad to have been a B secretor — someone with type B blood who secreted his bloodantigens into his other bodily fluids. Because Dotson was a B secretor, and because Bsecretors comprise only 10% of the white male population, this testimony substantiallycorroborated Crowell’s identification of Dotson, whose defense was mistaken identity.The bottom line of Dixon’s testimony was that, if Crowell had identified the wrong man,she had done so in defiance of ten-to-one odds.

The trouble was, Dixon was not telling the truth, or at least not the whole truth. It wastrue that there was B antigenic activity in the stain. It was true that Dotson was a Bsecretor. But it was not true that the semen had to have come from a B secretor. In truth,

Crowell also was a B secretor — a fact there can be no doubt Dixon knew because it wasin his laboratory notes. This meant that Crowell’s vaginal secretions alone could haveaccounted for the B antigenic activity in the stain.

Because Crowell was a B secretor, only A and AB secretors could be eliminated assources of the semen. That is because antigenic activity does not emanate from non-secretors, regardless of blood type, and type O blood contains only H substance, whichalso is present in all other blood types. Together, A and AB secretors make up only about


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a third of the population, leaving two-thirds — all persons with types B and O blood andall non-secretors — who could have contributed the semen. Thus, the truth was that theseminal content of the stain could have come from two out of three men in the whitepopulation — rather than the one in ten, as Dixon swore under oath.

Prosecutorial misconduct

Turning to the loose hairs recovered from the victim, Dixon testified that “several” were“microscopically similar” to Dotson’s. Evidence that came to light later would prove thiscontention also false. Even assuming it were true, however, the lead prosecutor in thecase, Assistant Cook County State’s Attorney Raymond Garza, deceivingly exaggeratedthe point in his closing argument. Garza told the jury that the recovered pubic hairs“matched” Dotson’s, although in fact there was then, in the pre-DNA era, no test capableof matching hairs with a source.

That exaggeration was no isolated error. Garza made various other prejudicial assertionsregarding the evidence. For instance, he referred to Crowell as “a 16-year-old virgin”although there was no evidence to support such a claim, which, it ultimately becameobvious, was not true. He proclaimed that the state “wouldn’t have put Mr. Dotson ontrial if in any way we knew he hadn’t done the crime.” And he branded as “liars” the only witnesses called by the defense — four friends of Dotson’s who testified that he was withthem, drinking beer, watching television, and dropping in at two parties, at the timeCrowell claimed to have been raped. Unable to shake the alibi witnesses, Garza told the jury that the testimony simply was too pat to be believed. There invariably areinconsistencies in sound alibi testimony, he explained, and the lack of any in the witnesses’ accounts rendered them unworthy of belief.

Although Dotson’s lawyer, Assistant Cook County Public Defender Paul T. Foxgrover,

failed to challenge Dixon’s false testimony, he did object to most of Garza’s prejudicialarguments and exaggerated contention concerning the hairs. However, the trial judge,Richard L. Samuels, without exception, overruled Foxgrover’s objections.

Inconsistencies ignored

Foxgrover also failed to exploit obvious inconsistencies in the prosecution case, severalof which were glaring: Crowell had described the rapist as clean-shaven, but Dotson hada healthy mustache when he was arrested just five days after the alleged crime. Sheclaimed that she had scratched the rapist’s chest, but Dotson bore no scratches. Andneither Doston nor any of his known acquaintances had a car matching the description

Crowell provided.

There was, additionally, an even more telling inconsistency, although to have discoveredit, Foxgrover would have needed an independent forensic analysis, for which he hadneither the funds nor, apparently, the desire to obtain. It was not until 1985, after the victim’s recantation, that Ed ward T. Blake, a Berkeley-educated Ph.D. forensic serologistretained by Dotson’s new lawyer, discovered that Crowell had not been raped — at leastnot at time consistent with her story.


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What Blake discovered was that the concentration of spermatozoa in the stain onCrowell’s underpants was two to three times greater than the concentration ofspermatozoa on the vaginal swab made at the hospital only a couple of hours, at most,after the presumed rape. Spermatozoa are metabolized in a vagina, reducing their

concentration. In a stain on a garment, although the sperm die, the concentration is notreduced. Thus, had Crowell been raped at the time she claimed, the concentrations inthe stain and on the swab should have been roughly equal.

Blake’s finding, which was confirmed by Henry C. Lee, a well-known Connecticut StatePolice scientist retained by the state, could only mean that the sexual encounterpresumed to have been a rape that shortly before the vaginal swabbing in fact hadoccurred much earlier. Bottom line: Crowell had not been raped, at least not in amanner consistent with the story she was telling. Blake’s finding, on the other hand,strongly corroborated her eventual admission that the stain had resulted from aconsensual sexual encounter with her boyfriend the day before she claimed to have beenraped.

Based on the evidence presented in court, however, the jury found Dotson guilty beyonda reasonable doubt. Judge Samuels sentenced him to 25 to 50 years for rape and another25 to 50 years for aggravated kidnaping, the terms to be served concurrently. On appeal,Dotson’s appellate defender was unaware of the problem with the forensic testimonyand did not raise the issue. Instead, the appeal focused on Garza’s improper conduct andthe various known inconsistencies in the evidence. The Illinois Appellate Court ignoredthe problems, upholding the conviction in 1981. People v. Dotson, {LINK TO DOTSONOPINION}\99 Ill. App. 3d 117 (1981).. “Victim” recants

In 1982, Crowell married a Homewood-Flossmoor High School classmate, David Webb.They moved to Jaffrey, New Hampshire, where they joined the Pilgrim Baptist Church.In early 1985, Cathleen Crowell Webb, as she was now known, told her pastor, theReverend Carl Nannini, that she was riddled with guilt because she had fabricated a rapeallegation that had sent an innocent man to prison. She said she had invented the story because she feared that her boyfriend at the time, David Bierne, had made her pregnant,and she thought she needed a cover story if that turned out to be the case. She addedthat she had inflicted the superficial cuts on her stomach and torn her clothing to fortifythe false claim.

On Webb’s behalf, Pastor Nannini contacted John McLario, a lawyer and devout Baptistfrom Menomonee Falls, Wisconsin, who promptly agreed to represent her. McLariothought it a bizarre but simple case. When he contacted the Cook County State’s Attorneys Office, however, he found the prosecutors unresponsive. Because theprosecutors were uninterested in revisiting the case, a friend in Chicago put McLario intouch with Jim Gibbons, an on-air reporter at WLS-TV, the ABC owned and operatedstation in Chicago.


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Gibbons broke the story of the recantation on March 22, 1985. The next morning’sChicago Sun-Times devoted most of its front page to the story, but the Chicago Tribune deemed it worthy of only a small inside story. The Tribune story included a sentencethat set the tone for much of the paper’s ensuing coverage of the case: “A source close tothe investigation called the woman ‘unstable.’” That was the opening salvo in a guerrilla

campaign of not-for-attribution half truths and personal slurs waged by the State’s Attorney’s Office to discredit Webb and Dotson; although he Tribune has changedsignificantly for the better in recent years, it was then an accommodating publicrelations outlet for prosecutors.

Dotson’s release on bond

With public sympathy seemingly in Dotson’s favor, Judge Samuels on April 4, 1985,ordered his release on $100,000 bond, pending a hearing one week later, on April 11.Samuels acted in response to a petition filed by Warren Lupel, a commercial lawyer whohad taken on the case as a favor to a client for whom Dotson’s mother worked.

Lupel’s petition, which asked that the conviction be set aside, raised eyebrows amongmembers of the criminal defense bar because he filed it under the Illinois Civil Practice Act, which automatically sent the case back to the original trial judge. Just as easily,Lupel could have filed the petition under the Illinois Post Conviction Act, which wouldhave sent the case to a different judge. If Lupel committed a tactical error, however, itappeared beside the point when Samuels set bond at $100,000, permitting Dotson to walk out of prison when a private benefactor posted 10% of that amount in cash.

Samuels appeared to be on the verge of going further on April 4, vacating the convictionand ordering a new trial. Had he done so, practically speaking, it would have been theend of the case. In the face of the recantation of the complaining witness and the

problems with the forensic evidence, there is little chance that the prosecution couldhave tried Dotson again. However, the prosecution asked Samuels to delay his ruling.

J. Scott Arthur, the supervising assistant state’s attorney in the Markham branch court who had taken over the case from Raymond Garza, told Samuels that the prosecutionhad located Webb’s former boyfriend, David Bierne, and wished to conduct new forensictests to be sure that his blood type was consistent with Webb’s recantation. Samuelsacquiesced, setting the next hearing for April 11.

Disinformation

The tide began to shift against Dotson on April 10, the day before the scheduled hearing, when the Chicago Tribune published a front-page story stating that new forensic resultscast doubt on Webb’s claim that the semen in her underpants was David Bierne’s. Thearticle, written by reporters Ann Marie Lipinski and John Kass, quoted unidentifiedsources as saying that “recent blood and saliva samples taken from [Beirne] do notmatch the evidence police found on [Crowell] in 1977 when she first claimed to have been raped.”


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The leak on which the story was based relied upon a incorrect assumption. The reportersapparently had fallen victim to the same sleight of hand with which Timothy Dixon haddeceived the Dotson jury a decade earlier: If Dixon had been correct that the semencould have come only from a B secretor, it could not have come from Bierne. The newtests ordered by the prosecution, and leaked to the Tribune even before being shared

with Dotson’s lawyer, determined that Bierne was an O secretor. Thus, contrary to theTribune report, the test included him among possible sources of the semen in theunderpants.

The false story was of little concern to Warren Lupel because the prosecution-orderednew forensic report substantially corroborated Webb’s recantation. Although the report, which had been prepared by Mark Stolorow, chief forensic serologist of the Illinois StatePolice, was written somewhat cryptically, it clearly acknowledged the error of Dixon’sclaim that the semen could have originated only from a B secretor, such as Dotson. And,the Tribune article notwithstanding, the Stolorow report confirmed that the semencould have come from, among others, O secretors.— a group that included David Bierne.

Tactical error

At the April 11 hearing, however, Warren Lupel made an unfortunate tactical error. In anill-conceived effort to reinforce the already-strong alibi, which was a matter of recordfrom the trial, he called one witness who had not testified previously. The witness wasBill Julian, Dotson’s best friend. Julian’s testimony contradicted the other witnesses onthe question who, among the alibi group, had been driving the evening of the crime, when they dropped in at two parties. At the trial, the witnesses unanimously stated thatone of the young women had been driving, but Julian now claimed that he had been thedriver.

The truth was that Julian had been driving, but on a suspended license. The trial witnesses later acknowledged outside of court that they had lied about the fact initiallyout of fear that the that the truth might get Julian into trouble. Lupel was taken bysurprise when the J. Scott Arthur declared in his closing argument at the April 11hearing that the inconsistency proved the old adage, “If you give a guilty man enoughrope, he’ll hang himself.”

The prosecution, having branded the alibi as unworthy of belief at the trial because itlacked inconsistency, now branded it so because an inconsistency had emerged. Lupelsaw the irony of the situation, but could not respond. He had been blind-sided. He didnot learn the explanation until after the hearing, when it was too late.

Back to prison

Ignoring the exculpatory new forensic evidence, Judge Samules announced at theconclusion of the hearing that it seemed to him that Webb’s trial testimony was morecredible than her recantation. He revoked the bond he had approved one week earlier,sending Dotson back to prison. “I failed him,” said Lupel.


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In the following days, the Tribune increased the tempo of its prejudicial fusillade,including a Sunday front-page piece reinforcing the notion that Webb might beunstable. At last, a source was quoted by name — Assistant State’s Attorney MargaretFrossard, who had cross examined Webb at the hearing before Samuels two days earlier.“I was expecting her to be exactly as she had been on television, open an

straightforward,” said Frossard. “I found that not to be the case. She seemed calculating,evasive, and manipulative.”

Despite the pro-prosecution spin of the Tribune coverage, however, significant publicsentiment seemed to remain on Dotson’s side. Petitions were circulated demanding hisrelease and, for days running, several local and national radio talk shows were devotedalmost exclusively to the case. Hoping to capitalize on the favorable sentiment, Lupel on April 19 petitioned Illinois Governor James R. Thompson, a Republican former federalprosecutor, for clemency.

Propitious timing

The timing could not have been better. The high-profile case was just the thing todistract attention a controversy over the Thompson administration’s handling of amassive salmonella outbreak that had begun on March 29. Although the source of thepoisoning was immediately suspected to be a dairy operated by Jewel Food Companies,the Thompson administration had allowed the dairy to continue operating until it voluntarily closed under public pressure on April 9, just two days before Dotson wassent back to prison. By then, the outbreak had become the worst in U.S. history,infecting more than 15,000 residents of Illinois and surrounding states.

Thompson was on vacation during the early days of the crisis, and Illinois Department ofPublic Health Director Thomas B. Kirkpatrick, a Thompson crony with no background

in disease control, left the country on a vacation of his own on April 3, at the height ofthe outbreak. Thompson did not find out that Kirkpatrick was gone until April 11.Thompson then fired Kirkpatrick “for not having any common sense.”

Guilty but popular

No Illinois governor had ever presided over a clemency hearing. Normally, the governor just receives a report from the Illinois Prisoner Review Board. But Thompsonannounced that the interests of justice demanded his personal attention in this case.

The three-day hearing, from May 10 through 12 was an international media spectacle. It

was held in the main auditorium of Chicago’s recently completed new State of IllinoisBuilding, soon to be renamed the James R. Thompson Center. The Illinois SupremeCourt had reinstated Dotson’s bond on April 30, making it possible for him to appear inperson. His testimony was carried live on several stations, as was Webb’s. A huge imageof her stained undergarment was projected onto an overhead screen at the front of theauditorium. The stain, 11 inches long, was the object of a great deal of attempted humoramong the audience, comprising scores of reporters from Chicago and around the world.


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In the end, the Prisoner Review Board voted unanimously to deny clemency and, aftertaking the matter under advisement for several minutes, Thompson announced toassembled media that Dotson’s trial had been fair. In fact, he said, the evidence of hisguilt was stronger now than originally. Nonetheless, Thompson said, he had decided tocommute Dotson’s sentence to time served, in effect proclaiming Dotson popular but

guilty and proclaiming the Illinois criminal justice system sound and pure.

What commuting the sentence actually meant was that Dotson would be on parole, which meant, in turn, that any violation of the norms of society could be, and as Dotsonsoon learned would be, punished without the rigmarole of formal charges or a trial.

Truth shunned

What would be left unsaid by the mainstream news media was that Thompson hadstacked the deck: He approved all of witnesses, studiously avoiding any that stood toembarrass the forensic operation of the State Police, and would not permit cross-examination. Edward Blake, for instance, who had reliable scientific results discreditingthe original allegation and corroborating the recantation was not called.

Nor did Thompson permit the testimony of Charles P. McDowell, who had conductedthe most comprehensive study of false rape allegations ever undertaken. McDowell, aPh.D social scientist employed by the U.S. Air Force Office of Special Investigations in Washington, D.C., had developed a 12-point model of the false rape allegation, {LINKTO McDOWELL MODEL} based on a study of 1,218 reports of rape between 1980 and1984 at Air Force locations worldwide. Of the reported cases, 460 were proven genuine,212 false, and 546 were not resolved.

Based on his model, McDowell would have told the Prisoner Review Board that there

was no serious doubt that Crowell fabricated her rape allegation. The scratches on herabdomen were the most important indicator that the story was a lie, McDowell said inan interview published in the June 1985 Chicago Lawyer.

The incredible lie

Under a the headline “The Incredible Lie,” Chicago Lawyer quoted McDowell: “Thephysical injuries of false victims are usually superficial — minor cuts, scratches, orabrasions. Although they may appear to be extensive, they don’t amount to much. Thecuts and scratches virtually never cross the eyes, the lips, the nipples, or the vagina. Youtypically see a peculiar hatching or crosshatching effect in the scratches.

“What happens here is that the false victim scratches herself but does not immediatelysee a welt. She thinks she must not have done it hard enough, so she does it again. Sheapplies another scratch, coming from a slightly different direction. By the time the welts begin to appear, you get this hatching. You do not see that in legitimate cases.

“I know of no case in which a legitimate rape victim had words or letters scratched ontoher body, but we have encountered it fairly frequently in false accusations. Such


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scratches often appear on the abdomen, and the scratches are virtually never seriousenough to leave scars.”

Most of the 11 other points in McDowell’s false accusation model also were in the Dotsoncase. For instance, false accusers typically claim, as did Crowell, that they offered

vigorous and continuing physical resistance, yet suffered no serious reprisals. Mostactual rape victims either do not strenuously resist and the few who do typically suffer brutal reprisals.

Maladjustment

Gary Dotson did not adjust immediately to freedom. “To suddenly come out with a blastand be slammed into a new environment was really hard,” he told journalist CiviaTamarkin, a People magazine special correspondent who was convinced of hisinnocence. “I had learned to live a different way for six years.” He turned to booze.“Drinking relaxed me, made me more open, made me more confident.” He said he had asix-pack for breakfast the morning of April 11, the day Judge Samuels sent him back toprison.

As soon as the Illinois Supreme Court reinstated his bond on April 30, he resumed where he had left off. During the clemency hearing, beer was virtually his onlysustenance. He had four each morning before the proceedings began, a few more duringthe lunch break, and at night he drank until he passed out.

After the governor commuted the sentence, Warren Lupel kept up efforts to win a newtrial. Dotson, however, lost interest. His primary interest, it seemed, was drinking beerin the company of a 21-year-old bartender, Camille Dardanes, who befriended himduring the hearings. At the insistence of friends who assured him he would be “set for

life,” he signed book and movie contracts. From these, he would realize only a pittance because the projects would not come to fruition.

Cathleen Crowell Webb, however, gave him $17,500, which she received as an advancefrom a religious publisher to tell her story for a book. With cash in hand, Dotson elopedto Las Vegas with Ms. Dardanes.

The newlyweds bought two used cars, rented and furnished an apartment, and keptcurrent on their daily drinking expenses, at least temporarily. But two months after the wedding, they were broke. Then, in March of 1986, they were evicted from theirapartment and moved in with Dotson’s widowed mother, Barbara, in Country Club

Hills. The new Mrs. Gary Dotson found work as a waitress, but Dotson remainedunemployed and, it seemed to him, unemployable. He answered want ads for a while, but no one seemed to have the slightest interest in hiring. “I felt like I was carrying aneon sign that said, ‘Gary Doston, convicted rapist.’”

In January of 1987, Camille Dotson gave birth to a daughter. Although still unemployed,Dotson joined Alcoholics Anonymous, in a short-lived stab at responsibility. Soon,however, on the way home from AA meetings, he started dropping by taverns for a few


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beers. He was stopped once, while drinking, but escaped with only a speeding ticket, for which he paid a $50 fine.

Sunday in the park

The afternoon of August 2, 1987, a Sunday, the Dotsons took their daughter and a six-pack to Oak Street beach in Chicago. Later they met friends, with whom they continueddrinking. On the way home that evening, Gary and Camille got into an argument.Camille, who was driving, stopped the car in the middle of the street. She tried to getout, but Gary stopped her and ended up slapping her. Then he stormed out of the car, with the baby. Camille was chasing them down the street, when a squad car came downthe street. Camille stopped the squad car and told the two officers that her husband wasa convicted felon and had taken their baby.

After police found Gary and Ashley down the street, sitting on a curb, Camille told thepolice that he had struck her and that she wanted to press charges. “I just thought it would shake some sense into him,” she told Civia Tamarkin later. “I didn’t want him togo to jail. Everything just got out of hand.”

On the basis of Camille’s complaint, Gary was arrested, charged with domestic battery,and ordered to appear in domestic violence court on August 27. Because the charge, ifproved, constituted a parole violation, he was held without bond.

Journalist recruits counsel

Civia Tamarkin, incensed by what she viewed as over-reaction to a relatively minorincident, coupled with the governor’s earlier disingenuous action in the case, set out tofind Dotson a new lawyer. First, she called Thomas D. Decker, a well-known Chicago

criminal defense lawyer she knew from his recent work on a high-profile case known asthe “Dream Murder.”{LINK TO DREAM MURDER PAGE} Decker said he was too busyto take the case, but recommended several other lawyers he thought might take it.

Thomas M. Breen, a former assistant Cook County State’s Attorney, was among thelawyers Decker recommended. Based on what he had read about the case, Decker wasskeptical that Doston was innocent. “Oh, the schmuck probably did it,” was his response when Tamarkin told him the purpose of her call. But Breen said the case fascinated him. At Tamarkin’s urging, he agreed to talk to Dotson. Then, after thinking it over for a dayor so, he accepted the case.

Initiation of Thomas Breen

On August 27, Breen successfully argued against a prosecution motion to delay thedomestic battery case until September 4. He persuaded Judge William Ward that themotion was just a ploy to keep Dotson in jail a few extra days, until the state faced thefact that there was no case as a result of Camille Dotson’s refusal to cooperate. Indeed,immediately after Judge Ward denied the motion, the State’s Attorney’s Office droppedthe charges. Breen assumed that meant his client was free to go. He was wrong.


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The Illinois Department of Corrections slapped a “parole hold” on Dotson, requiringthat he be held in jail pending hearing before the Illinois Prisoner Review Board onSeptember 4. By administrative fiat, the Department of Corrections accomplishedprecisely what the State’s Attorney’s Office had tried but failed to accomplish in court.

But there was no remedy.

At the Prisoner Review Board hearing, Breen first established that Camille Dotson hadsuffered no bodily harm, contrary to police allegations to the contrary. Then Breencalled Dotson’s parole officer, Phillip Magee, to testify. Magee read his report aloud tothe board. “Dotson’s parole violation seemed directly related to chronic alcoholism,”said the report. “His violation neither indicated criminal orientation, nor does he appearto otherwise represent a serious threat to public safety.”

After excusing the witnesses and counsel, the board met briefly behind closed doors. When the members emerged, Breen asked if a decision had been reached. “No,” he wastold. “We will notify you.” That, alas, was not true. The board not only had reached adecision, but a had told the media what it was. Breen learned from a reporter that the board had revoked Dotson’s parole, reinstating his original sentence. That meant that,for slapping his wife, Dotson faced 16 years, one month, and five days in prison.

The promise of DNA

An article titled “Leaving Holmes in the Dust” in the Newsweek magazine of October 26,1987, caught Breen’s attention. The article, written by Sharon Begley, reported thediscovery of a technique capable of linking criminal suspects to crimes through DNA{LINK TO DOTSON DNA FILE}. Begley described the technique as “the molecularequivalent of dusting for fingerprints,”

“The principle is simple,” she wrote. “Every cell in an individual, including those in blood, semen, and hair roots, has the same DNA, the molecule of heredity. Since eachperson’s DNA is unique (unless he is an identical twin), it can be used for identification with near-perfect accuracy. British geneticist Alec Jeffreys of the University of Leicester, who discovered the technique, estimates that the odds against any two unrelated peoplesharing the same DNA fingerprints are billions to one.”

The article said that the technique had been used to resolve a handful of paternity andimmigration cases in Britain and, more dramatically, to link a 27-year-old man, ColinPitchfork, to the rape-murders of two teenage girls near the English village of Enderby.

Although Breen learned upon inquiry that DNA had never been used to exonerateanyone in a criminal case, its potential for doing so seemed obvious. As a result, Breenfiled a motion asking the presiding judge of the Criminal Division of the Cook CountyCircuit Court, Richard J. Fitzgerald, to order the testing in the Dotson case.


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Christmas cheer

On Christmas eve, 1987, Governor Thompson announced that he was giving Dotson“one last chance”by ordering his release from prison for the parole violation. Two dayslater, however, Dotson was in trouble again. Again, alcohol was a contributing factor.

Doston went with friends to the Zig Zag Lounge in Calumet City, a rough-and-tumbletown abutting the Indiana line southeast of Chicago, on December 26. Dotson, who wasdrinking, ordered the sandwich but objected when it came topped with peppers, whichhe had not ordered. He refused to pay and, during an ensuing argument, allegedly strucka 67-year-old waitress “with an unknown object.” He was arrested and charged withtheft, battery, and disorderly conduct.

Judge Martin McDonough set Dotson’s bond the next morning at only $1,000. TheIllinois Department of Corrections, however, slapped another parole hold on Dotson toprevent his release pending yet another Prisoner Review Board hearing, this one set forFebruary 17, 1988.On December 29, Camille Dotson filed for divorce, alleging that her jailed husband had a“violent and ungovernable temper.” A few days later, the criminal charges were voluntarily dismissed dropped by the State’s Attorney’s Office because prospective witnesses cast doubt on the waitress’s version of what had transpired at the Zig Zag, andshe apparently had second thoughts about repeating her story under oath.

Pleasant surprise

After a hearing on Breen’s motion for DNA on January 7, 1988, Assistant State’s Attorney J. Scott Arthur told Judge Fitzgerald he had no objection to DNA testing. “Iftheres any test out there that’s going to help us come to the truth, we want to pursue it,”

he said. The judge gave his tacit approval to the idea, but said he could not rule on themotion because he no longer had jurisdiction in the case. The decision, therefore, was upto the governor.

A little later in the day, the governor’s office announced not only that Thompsonapproved the proposal, but that the gubernatorial staff already had contacted AlecJeffreys, who had agreed to do the testing. Given that Thompson and Arthur had gone toseemingly incredible links to avoid the truth all along, their willingness, even eagerness,to have DNA testing done puzzled Breen and even gave him pause.

What could it mean? Had they had an epiphany? Had the light suddenly dawned on

them? Or might they actually believe DNA would vindicate their actions in the case? Was it possible that they actually had brainwashed themselves into believing Dotsonguilty? Or were they carrying cynicism to a new height? Could it be that they wereconfident the new science would not yield a result on a decade-old sample, but that theycould pretend publicly to have left no stone unturned in their unrelenting search fortruth? Breen could only wonder.


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“A technical violation”

With the criminal charges gone, the Prisoner Review Board on February 17, found thatDotson had violated his parole by failing to call his parole officer on December 24, theday he was released from prison. Breen told the board that Dotson thought he had a

reasonable time to call, and had in fact called on December 26, a few hours beforeembarking to the Calumet City bar. The board nonetheless ordered Dotson back toprison for six months.

Terry Barnich, the governor’s legal counsel, acknowledged that Dotson’s failure to callhis parole officer was only “a technical violation” and “wasn’t enough to revoke theclemency order” the governor had issued on December 24. Had the board had found a“material violation,” Barnich opined, Dotson no doubt would have been returned toprison for longer than six months.

Jeffreys test fails

It appeared that Dotson’s only hope for avoiding another six months behind bars rested with Alec Jeffreys at the University of Leicester. There was no great cause for optimism.Jeffreys’s patented process, known as RFLP, for restriction fragment lengthpolymorphism, required DNA of high molecular weight, meaning that it would not workif the genetic material that had lost mass due to degradation.

It was not surprising, therefore, when Thompson announced on April 7, 1988, thatJeffreys had been unable to obtain a result. “The evidence was simply too stale,” said thegovernor. “We gave it our best shot, as far as it’s humanly possible to go in search of thetruth . . . far beyond.”

New testing

Thompson soon learned, however, that it was humanly possible to go one step further:There was another type of DNA testing, known as PCR, for polymerase chain reaction.The PCR technique, which had been patented by the Cetus Corporation of California inthe mid-1980s, had the advantage of working on degraded samples.

Unlike RFLP, which had the potential to link a specific suspect to a semen sample, to theabsolute exclusion of all other men in the world, PRC could only include or exclude asuspect among a group of the population who could have been the source of geneticmaterial recovered from a crime scene.

Although improvements in PCR eventually would make it as discriminating as RFLP had been initially, in 1988 it was only capable of categorizing DNA into 21 different types.The probability of a random match between a suspect and a semen sample ranged fromone in seven for the largest category to one in 100,000 for the smallest.

Forensic applications of PCR were being pioneered by Edward Blake, the Californiaforensic scientist whose conventional testing of the evidence in the Dotson case three


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years earlier had strongly corroborated Webb’s recantation. Blake, whose resultsThompson had refused to consider in 1985, had been licensed exclusively by CetusCorporation to use its patented technique. Nonetheless, Thompson ordered that theinfamous semen-stained underpants, along with fresh blood samples from Gary Dotsonand David Bierne, be dispatched to Blake at Forensic Science Associates.

Absolute innocence

On August 15, 1988, Blake notified the governor, the prosecutors, and Thomas Breenthat the PCR testing had positively excluded Dotson and positively included Bierne asthe source of the semen in the underpants. The next day, Breen formally askedThompson to grant unconditional clemency based on actual innocence.

Breen pointed out that the matter should be treated expeditiously, as an emergencys, because Dotson was suffering the irrepairable injury of on-going confinement for acrime that had not occurred; although Dotson had been released from prison that veryday, having served six months for his technical parole violation, he was involuntarilycommitted to a residential treatment center for alcohol and substance abuse.

The urgency argument fell on deaf ears. A spokesperson for the governor told reportersthat Thompson wanted to be assured of the accuracy of the PCR test and would not acton the clemency question until receiving a recommendation from the Prisoner ReviewBoard.

Back to court

Nine months later, when the Prisoner Review Board still had failed to act, Alec Jeffreys wrote a letter to Breen critical of the Thompson administration’s inaction. “In view of

the conclusive nature of this evidence, I earnestly hope that you will be able to go back tocourt on this matter and obtain the release of your client,” said the letter, which dated April 20, 1989. “It is clear that rejection of this evidence by the judiciary wouldconstitute a gross miscarriage of justice.”

Breen released the letter to the media on May 3, after filing a new petition for post-conviction relief based on the PCR results. A hearing on the petition was set for August14 before Judge Thomas R. Fitzgerald, the recently named new presiding judge of theCriminal Division of the Cook County Circuit Court.

Prosecutors publicly vowed to oppose the petition, which sought a new trial. By August

14, how ever, there apparently there had been a change of heart. The State’s Attorney’sOffice joined in the motion. In granting the motion, Judge Fitzgerald said, “It’s my beliefthat had this evidence been available at the original trial, the outcome would have beendifferent."

No sooner had Fitzgerald ruled than the State’s Attorney’s Office announced that thecharges against Dotson would be dropped, thus ending his 12-year ordeal and makinghim the first American ever to be exonerated by DNA.


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“It’s been 12 long, long grueling years and I'm relieved it’s over,” Dotson told reportersoutside the courtroom. “The stigma remains. “It’s something I have to deal with. I’ve been referred to as a ‘convicted rapist.’ Now, at least, I’m no longer ‘convicted.’”

A remaining mystery

After Dotson’s exoneration, an elusive aspect of the case continued to trouble observers:How could a 16-year-old girl possibly fabricate a false rape allegation with sufficientcredibility to fool a judge, jury, prosecutors, a governor, assorted journalists, andsignificant segments of the legal community and general public?

The answer, as she later told a psychologist, was that she did not exactly make it up butrather lifted it from a novel she had been reading. The novel, Sweet Savage Love (AvonBooks, 1974), included a vivid rape scene, which included these parallels to CathleenCrowell’s testimony at Dotson’s 1979 trial:

She testified that she was abducted by three men in a car and raped by one ofthem while the others were consistently laughing “like it was a big joke.” The woman in the novel was abducted by three men in a carriage and two of them“laughed along with” the rapist.

She testified that she was raped by a man who held her down, “putting his weighton” her as he tore off her clothes. The woman in the novel was stripped by a rapistand “pinned down by his weight.”

She testified that after she was raped the rapist pushed her out of the car nearly

naked. In the book, the men “threw [the victim] onto the ground beside [the carriage] naked.”

She testified that she tore the rapist’s shirt during the attack. The victim in thenovel felt her attacker’s shirt “tear under her clutching fingers.”

She testified that the rapist bit her breast. The victim in the novel was “pinneddown” as the man bit her breast.

— Rob Warden

The Rape That Wasn’t

Documents

Transcript of The Rape That Wasn’t