Carlos Lavernia

A mistaken eyewitness identification sent Carlos Lavernia to prison for 15 years for a rape he did not commit

Carlos Lavernia was sentenced to 99 years in prison in 1985 for the rape of a 22-year-old woman in Travis County, Texas. The crime was one of five highly publicized sexual assaults that occurred along the Barton Creek Greenbelt in Austin in 1982 and 1983.

During the period in which the assaults occurred, Lavernia had been arrested in the general area of Barton Creek on suspicion of breaking into cars and other petty crimes. He eventually pleaded guilty to a 1982 charge of indecent exposure, although he later contended he only had made an obscene gesture. Because he was a Cuban exile who had come to the United States during the Mariel boatlift in 1980, he was sent to federal prison in Atlanta pending deportation.

Photo spread and lineup

In August 1984, Austin police included Lavernia's photograph among five shown to the Barton Creek rape victims, two of whom identified him. He was then returned from Atlanta to Austin, where the two identified him in a physical lineup. One of the identifications was questionable because the victim initially had described her attacker as 5 feet, 10 inches tall, but Laverina was only 5-4. Descriptions provided by the other three victims did not match Laverina, and those victims did not identify him; two, in fact, identified a man standing next to him in the lineup.

Lavernia, now 34, was charged with the two rapes in which identifications had been made. The cases were severed for trial. In the first case, the sole evidence against Lavernia was the victim's testimony. She conceded on cross examination that his photograph was the only one in the spread she was shown that "anywhere near" resembled her attacker, but her concession that failed to raise reasonable doubt in any juror's mind. After Lavernia was convicted, the prosecution dropped the second case, and in 1986 the Texas Court of Criminal Appeals affirmed the conviction with an unpublished opinion.

Detective sees the possible mistake

With his limited English, Lavernia began writing writs, including one seek DNA testing. Each was perfunctorily denied, but in November 1999 Austin Police Detective J.W. Thompson went to question Lavernia about an unsolved murder dating back to 1983. Not only did Thompson conclude from the interview that Lavernia had nothing to do with the murder in question, but also that he might have been wrongfully convicted of the rape.

Thompson returned to Austin and expressed his concern to Bryan Case, director of the Appellate Division of the Travis County District Attorney's Office. At the time, the office was considering a policy – subsequently implemented -- to review all murder and rape convictions in which identity was an issue and in which DNA had the potential of establishing actual innocence.

A serendipitous error

At Thompson's behest, Case agreed to pursue DNA testing for Lavernia, but discovered that the court records and, presumably, the evidence had been destroyed. By sheer luck, however, an envelope containing the trial evidence had not been routinely destroyed and was located in a county warehouse. In the envelope, among other items, were the victim's shorts and vaginal swabs. When the DNA results on those came back, Case was stunned. "You could have blown me over with a little desk fan," the Austin American-Statesman quoted him as saying.

When the victim learned of the results, she told the American-Statesman, "I pretty much want to crawl into a fetal position and go away. Maybe it wasn't him, [but] I don't think I made a mistake."

— Rob Warden