Warith Habib Abdal
Convicted of rape based on a “Braille-type” identification
On May 18, 1982, Leslie A. Werner, a twenty-three-year-old white woman, was raped and robbed in an Erie County, New York, nature preserve where she had been bird-watching with her husband. She described her attacker as black man between five feet eight and five feet ten with a space between his upper front teeth and a "tenor-type" voice.
Warith Habib Abdal, a forty-three-year-old African American then known as Vincent H. Jenkins, did not fit the description. He was six feet two inches tall, there was no gap between his teeth, and he had a deep voice. Nonetheless, inexplicably, he was picked up for questioning about the crime four and a half months after it occurred and, in a one-man show-up, Werner identified him as her attacker. A few days later, based on Werner's identification, an Erie County grand jury indicted him for first-degree rape, sodomy, and second-degree robbery.
Before his trial opened on May 31, 1983, the judge, Frederick M. Marshall, suppressed the identification, branding the police procedure "highly improper." Marshall nonetheless permitted Werner to identify Abdal in court based on a supposed "Braille-type" recollection from touching his face during the rape. No other evidence purported to link Abdal to the crime. In fact, he had been ruled out as the source of a Negroid eyelash recovered from the victim at the hospital where she was treated after the attack. Although the eyelash almost certainly had been left by the rapist, the jury on June 6 returned a verdict of guilty on all charges against Abdal. On November 4, 1983, Marshall sentenced him to prison for twenty years to life. On July 10, 1987, the Appellate Division of the New York Supreme Court affirmed the conviction.
Following the advent of DNA forensic technology, which did not come into being until long after Abdal had exhausted his state appeals, his appellate lawyer, Eleanor Jackson Piel, filed a petition for a federal writ of habeas corpus. At Piel's request, on February 10, 1992, Senior U.S. District Court Judge John T. Elfvin, ordered DNA testing of vaginal swabs and slides collected from Werner at the hospital after the attack. The testing was done in 1993 by Dr. David Bing of CBR Laboratories in Boston, but the results were inconclusive. Then, at Piel's request, Barry Scheck, of the Innocence Project at the Benjamin N. Cardozo School of Law, joined Abdal's legal team. In the hope of resolving the ambiguities in Bing's work, Piel and Scheck arranged for new testing by Cellmark Diagnostics in Germantown, Maryland. In late 1998, the Erie County Forensic Science Laboratory sent the swabs and slides to Cellmark via Federal Express, but the evidence was lost in transit. The DNA preparations prepared five years earlier by Dr. Bing still existed, however, and from these Dr. Edward T. Blake, of Forensic Science Associates in Richmond, California, performed tests in 1999 conclusively establishing Abdal's innocence.
After Blake's results were confirmed by the Erie County Forensic Science Laboratory, on August 31, 1999, Judge Elfvin ordered Abdal freed. The next day, Abdal was released from the maximum security Green Haven Correctional Facility in Stormville, although he still faced a possible retrial. The following November 2, however, Supreme Court Justice Joseph P. McCarthy, the supervising judge for western New York criminal courts, dismissed the indictment. In January 2002, a Court of Claims action brought by Abdal was settled for $2 million, or $323.62 for each of the 6,180 days he was wrongfully incarcerated. He did not have long to enjoy the money, however. On September 19, 2005, he died of cancer at age sixty-six.
May 18, 1982 — Leslie A. Werner, a twenty-three-old white woman, is raped and robbed in a nature preserve in Erie County, New York. Werner says she was attacked by a lone black man, between five-eight and five-ten in height, with a space between his upper front teeth and a "tenor-type" voice.
September 30, 1982 — Vincent H. Jenkins, a forty-three-year-old black man who later changed his name to Warith Habib Abdal, is picked up for questioning by officers from the Buffalo Police Department's Street Crime Unit. Jenkins is six-two, has no gap between his teeth, and has a deep voice. Werner nonetheless identifies him as her attacker in a one-man show-up.
October 6, 1982 — An Erie County grand jury indicts Jenkins for first-degree rape and sodomy and second-degree robbery
June 6, 1983 — Despite the discrepancies between Jenkins's appearance and Werner's initial description, and despite hair evidence strongly suggesting someone else committed the crime, an Erie County jury finds Jenkins guilty on all charges.
November 4, 1983 — Supreme Court Judge Frederick M. Marshall sentences Jenkins to three concurrent prison terms of twenty years to life.
July 25, 1989 — Marshall denies a motion by Jenkins's appellate attorney, Eleanor Jackson Piel, for DNA testing of hair samples.
February 10, 1992 — Senior U.S. District Court Judge John T. Elfvin grants a federal writ of habeas corpus and orders the prosecution to surrender vaginal swabs and slides for DNA analysis.
1993 — DNA tests are is performed by Dr. David Bing, of CBR Laboratories in Boston, but the results are ambiguous, failing to exonerate Jenkins.
1998 — In hope of resolving the ambiguities, Piel and co-counsel Barry Scheck arrange for additional testing by Cellmark Diagnostics in Germantown, Maryland, but Federal Express loses the evidence is lost in transit between the Erie County Forensic Science Laboratory and Cellmark.
April 29, 1999 — DNA analysis by Edward T. Blake, of Forensic Science Associates in Richmond, California, excludes Abdal as the source of seminal material recovered from Werner.
August 31, 1999 — Senior U.S. District Court Judge John T. Elfvin orders Abdal released based on Blake's results.
September 1, 1999 — Abdal is released from prison.
November 22, 1999 — Over the objection of the prosecution, Supreme Court Justice Joseph P. McCarthy, supervising judge for Western New York criminal courts, dismisses the indictment against Abdal.
January 2002 — A Court of Claims action brought by Addal is settled for $2 million ($323.62 for each of the 6,180 days he was incarcerated).
September 19, 2005 — Abdal dies of cancer at age sixty-six.
Date of crime: May 18, 1982
Jurisdiction: Erie County, New York
Type of crime: Forcible rape
Sentence: Three concurrent terms of twenty years to life (one term for each first-degree rape, first-degree sodomy, and robbery)
Defendant’s age at time of crime: 43
DOB: Not specified in records reviewed
Defendant’s gender: Male
Defendant’s race: Black
Defendant’s prior adult or juvenile conviction record: Several adult convictions, beginning at age 19, for robbery, burglary, and assault (none sexual).
Victim: Leslie A. Werner
Victim’s gender: Female
Victim’s race: White
Victim’s Age at time of crime: 23
How defendant initially became a suspect: Picked up on the street for no apparent reason other than being black (he did not fit the victim’s description); after the arrest the victim identified him in one-man show-up.
Date of arrest: September 30, 1982 (under name Jenkins)
Type of proceeding resulting in conviction: Jury trial
If a jury trial, racial makeup of jury: Not specified in records reviewed
Date of conviction: June 6, 1983
Principal evidence presented at trial purporting to establish guilt: Eyewitness testimony by victim
Was conviction ever affirmed on appeal? Yes
Date of release: September 1, 1999
Total days incarcerated: 6,180
How case was resolved: Dismissal of charges following reversal of conviction
Date of resolution: November 22, 1999
Factors leading to resolution: DNA exclusion
Individual(s) responsible for bringing miscarriage to light: Private post conviction attorney (Eleanor Jackson Piel) and Innocence Project of Cardozo School of Law
Compensation: Settlement of Court of Claims action for $2 million
Post-release criminal record: None (Abdal died in 2005 of cancer)
— Rob Warden