(AP) — DNA testing clears two men sentenced to long prison terms for a 1996 rape in Norfolk, the Innocence Project argues in a filing with the Supreme Court of Virginia .
One of the men, Percell F. Warren, died in December 2012 in Deerfield Correctional Center, where he was serving a 160-year term. He was 56. His brother-in-law, Nathaniel E. Epps, 63, is serving a 153-year sentence at the Greensville Correctional Center.
The Innocence Project has filed a petition with the state Supreme Court for a writ of actual innocence for Epps, citing DNA testing on sperm found in jeans worn by the victim, the Richmond Times-Dispatch reported Friday.
The testing showed that Warren’s DNA was not identified in the mixture of male DNA, but that Epps could not be definitively excluded.
Epps wants more testing. Last week his lawyers asked the justices to delay proceedings so the new results can be part of his petition.
The results offer “compelling evidence” of Epps’ innocence, the petition states. The additional testing, it states, “can obtain even more powerful and less complicated results.”
A spokesman for Attorney General Mark Herring said Thursday Herring has no objection to a stay but could not comment further.
The woman reported the rape on the night of Feb. 20, 1996, when two men broke into her home and assaulted her at gunpoint.
The victim was able to scream for help but the men beat her, put a gun in her mouth and threatened to shoot her 2½-year-old child. The two men fled out a window as police arrived.
The jeans the victim wore to the hospital and other evidence were sent to the Virginia Department of Forensic Science for testing, but no physical evidence was introduced by prosecutors at Epps’ trial, according to the petition.
A witness testified that he saw Epps and Warren flee the scene and later overheard the two talking about the attack.
“The new DNA evidence without question overcomes the weak identifications by the victim and an alleged bystander with a lengthy criminal record,” argues the petition.
Epps, his stepdaughter and nephew all testified at his trial that they were at a home when the attack occurred. Warren was in and out of the house that night, they said.
Both men maintained their innocence but were convicted of rape, sodomy and attempted robbery, among other charges.
Testing on some of the evidence in 2011 turned up only the victim’s DNA. More testing of evidence, including the jeans, was ordered a year ago by a Norfolk Circuit Court judge.