Kerry Kotler (Suffolk County, New York)
Factual background.A woman accused Kotler of raping her twice, once in 1978 and again in 1981. In the first incident, the victim alleged that she arrived home and a man wearing a ski mask raped her and robbed her of jewelry at knife point. She was unable to identify her assailant and reported only the burglary to the police. In the second incident, the victim again arrived home and an unmasked man was there. She said that the assailant claimed to be coming “back for another visit” and again raped her at knife point. He robbed her of jewelry and $343 and left through the back door. After 2 full days of deliberations, a Suffolk County jury convicted Kerry Kotler of two counts of rape in the first degree, two counts of burglary in the first degree, one count of robbery in the first degree, and two counts of burglary in the second degree. The court sentenced Kotler to 25 to 50 years.
Prosecutor’s evidence at trial. The prosecution based its case on several points:
• The victim identified Kotler from a group of 500 photographs.
• The victim’s identified Kotler by sight and voice from a police lineup.
• County laboratory tests showed that Kotler had three non-DNA genetic
markers (ABO, PGM, and GLO) that matched those of the semen stain left
on the victim’s underpants.
Postconviction challenges. Kotler brought a pro se motion to set aside the jury verdict prior to sentencing. In the motion, he alleged prosecutorial misconduct and deficiencies in the court’s jury charge. The motion was denied on December 2, 1983.
In 1986 Kotler made a direct appeal to the Appellate Division. Among his claims in the appeal: erroneous admission of testimony, insufficient evidence to convict, and excessive sentencing. The judgment of conviction was affirmed on March 3, 1986.
On March 10, 1987, Kotler brought to the court a second motion to set aside the conviction. He based his motion on false testimony by a police detective, concealment of evidence, and improper cross-examination of Kotler regarding his prior criminal charges. This motion was denied on July 7, 1988. The court, however, ordered a hearing on whether certain documents had been concealed from the defense prior to trial. On January 8, 1990, after the hearing, the county court again denied Kotler’s motion.
Upon hearing about DNA tests in September 1988, Kotler contacted the Legal Aid Society and asked for assistance in getting the tests performed. He secured funds from his father, and on February 15, 1989, the rape kit, the victim’s underwear, and blood from the victim and Kotler were sent to Lifecodes, Inc. It found an insufficient amount of DNA for testing and returned the evidence. Another legal aid attorney, however, heard about Kotler’s case and advised him to try Forensic Science Associates (FSA) in California.
DNA results. In February 1990 all the evidence was sent to FSA. A PCR test showed that Kotler was not the source of the semen. The prosecution, however, posited that since DNA from both Kotler and the underwear yielded a similar allele, part of the semen could have come from a consensual partner and another part from Kotler.
Tests were then conducted by the Center for Blood Research (CBR) in Boston. They showed the same results as the first test. The defense then asked for a blood sample from the husband of the victim because he was the only sex partner the victim claimed to have had prior to the rape. After a sample from the husband was received by both laboratories, tests showed that he was also not the source of the semen. These results showed that the semen in the victim’s underpants could not have come from either Kotler or the victim’s husband. Both FSA and CBR issued a joint statement to the Suffolk County Court attesting to these facts on November 24, 1992 (see appendix for results).
Conclusion. On March 10, 1992, Kotler’s attorneys filed a memorandum of law in support of Kotler’s motion to vacate judgment. Their brief referred to the results of the original DNA tests as well as to the withholding of evidence by the prosecution, which included police reports showing that the victim’s description differed from Kotler in age, height, and weight and that the victim’s identification of Kotler was a “look-alike,” not a positive identification. The district attorney’s office filed a memo of opposition to vacate the conviction.
After the defense attorneys received the results of the final DNA tests, they went to the judge, who ordered a hearing on the results. The prosecution then agreed to issue a joint statement with Kotler’s lawyers to vacate the conviction. The Court of Suffolk County ruled to vacate the conviction on December 1, 1992, and ordered Kotler to be released on his own recognizance.
On December 14, 1992, the prosecution sought the dismissal of all indictments, which the court granted. Kotler served 11 years of the sentence before he was released on December 1, 1992.* Subsequently, the chief prosecution expert who conducted the serology tests pleaded guilty to perjury charges that alleged he lied about his qualifications and training.
*According to an April 9, 1996, New York Times account, Kotler was arraigned April 8, 1996, in Suffolk County, New York, on charges of first-degree rape and second-degree kidnaping. The charges stem from an alleged sexual assault on August 12, 1995, and the results of DNA tests on evidence taken from the victim’s clothing.
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.