Gilbert Alejandro (Uvalde County, Texas)

Factual background. On the evening of April 27, 1990, a woman in her fifties came home and was attacked from behind by a man. The man placed a pillow over her head and sexually assaulted her. He then fled the house. The woman could not describe the man except for basic physical size. She also noted that the man was wearing some kind of cap, a gray T-shirt, and dark-colored shorts. The police canvassed the area and questioned three men, one of whom was wearing clothes matching the victim’s description. The police did not detain them. The victim picked out Alejandro from his photograph in a mug book.

In October 1990 Gilbert Alejandro was convicted of aggravated sexual assault by a Uvalde County jury. He was sentenced to 12 years in prison.

Prosecutor’s evidence at trial. The prosecution based its case on several points:

• The victim identified Alejandro from a police mug shot.


• The victim identified Alejandro in court (although she stated that she

had a pillow over her head during the assault).


• Fred Zain, the chief forensic expert for Bexar County, Texas, testified

that a DNA test of Alejandro’s sample matched DNA found on the

victim’s clothing “and could only have originated from him [Alejandro].”


• Alejandro’s only alibi was from his mother, who testified that he was at

home at the time of the assault.

Postconviction challenges. Bexar County performed the forensic laboratory work in this case for the Uvalde County prosecutor’s office. Bexar County discovered that the State’s forensic expert in this case, Fred Zain (see also the Gerald Wayne Davis, William O’Dell Harris, and Glen Woodall cases), had falsified results and lied about his credentials when he was employed as a State police serologist in West Virginia. When Alejandro’s lawyers were informed of this, they filed a writ of habeas corpus. At this time, Alejandro was released to his parents and placed on electronic monitoring.

On July 26, 1994, a Uvalde County District Court heard Alejandro’s petition. Present at this hearing were an original trial juror, the original jury foreman, and a Bexar County forensic DNA analyst. The two jurors testified that they based their guilty verdict solely on Zain’s testimony and without his testimony the jury would have acquitted on the basis of reasonable doubt. The DNA analyst testified that results from at least one other DNA test had excluded Alejandro. He also testified that the test to which Zain testified was inconclusive and could not have been the basis of a conviction.

DNA results. In July 1990 the original DNA tests done in this case—the ones Zain testified were inculpatory—were inconclusive. A Restriction Fragment Length Polymorphism (RFLP) test performed by the Bexar County crime laboratory on October 3, 1990, excluded Alejandro as the source of the semen left on the victim’s nightgown. The district court also reported that an additional test was done on December 19, 1990, after the trial, and it too excluded Alejandro. According to the district court’s findings of fact, Fred Zain knew of these exculpatory results and failed to report them to anyone.

Conclusion. As a result of the findings of fact by the district court, the court of criminal appeals overturned Alejandro’s conviction and released him to stand trial again without Zain’s testimony. The district attorney, however, declined to prosecute the case. On September 21, 1994, Alejandro was released from electronic monitoring and all charges were dismissed. Alejandro served 4 years of his sentence. On June 27, 1995, he was awarded $250,000 in a civil suit against Bexar County.

This case profile is excerpted from Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial, a 1996 research report by the U.S. Department of Justice.