Incident Date: March 4, 1974
Jurisdiction: Tenth Circuit
Charge: Rape, Breaking and Entering, Kidnapping
Conviction: Rape, Breaking and Entering, Kidnapping
Year of Conviction: 1974
Exoneration Date: December 17, 2009
Sentence Served: 35 Years
Real perpetrator found? Not Yet
Contributing Causes: Eyewitness Misidentification,
On December 17, 2009, James Bain was freed from prison after postconviction DNA testing proved his innocence of a 1974 rape and kidnapping. At the time of his release, Bain’s 35 years spent in prison was the longest time served by any of the DNA exonerees nationwide.
Late on the night of March 4, 1974, the victim was taken from his bedroom through a window to a nearby field and raped by an unknown male. When the victim returned home, he was wearing only a white t-shirt and jockey underwear. The police collected his underwear and sent it to the FBI for serological testing.
Bain became a suspect after the victim described his assailant and the victim’s uncle stated that the man he was describing sounded like James Bain, who he knew as a student at the high school where he was assistant principal. After his uncle mentioned the name, the victim adopted Bain as the rapist. When the police arrived at Bain’s house around midnight on March 5, 1974, Bain was at home with his sister where he had been since around 10:30pm. Although James Bain had an alibi, never confessed to the crime, and always maintained his innocence, police arrested him.
The State’s case was based largely on serology on the underwear performed by the FBI and the victim’s identification of Bain as his assailant. The underwear itself was admitted at trial as State’s Exhibit #1. Contrary to the FBI testimony, a defense expert testified at trial that the serological results revealed that Bain could not have been the depositor of the semen on the victim’s underwear. In addition, there was testimony regarding Bain’s alibi presented at trial and the eye-witness testimony of the nine-year-old.
(1) Victim’s Misidentification: The police had already arrived at the victim’s home when he returned after the assault. The victim gave the officers a physical description of his assailant, which included very prominent sideburns, and said he identified himself as “Jimmy.” The description was then given to the victim’s uncle who stated that he knew an individual named Jimmy Bain who fit the description. After the uncle stated Bain’s name, the victim adopted Bain as his assailant. At this point, the police took the victim to the police station (along with his father and uncle) and presented him with a photo lineup. Bain’s photo was included in the lineup, along with four or five other males, only one of which had sideburns. Rather than asking the victim to pick out the photo of his assailant, the police suggestively and improperly instructed him to pick out Bain’s photo, and he did. DNA results now prove the victim’s suggestive identification of Bain as his rapist to be a mistake.
(2) Fudged FBI Serology: Serology testing performed pre-trial by the FBI on the victim’s underwear verified that the rapist did deposit semen on the victim’s underwear and sperm heads were seen on the underwear by the FBI at that time. FBI analyst, William A. Gavin, testified that the semen on the underwear was blood group B, that Bain’s blood group was AB (with a weak A), and that Bain could not be excluded as the depositer of the semen. DNA results now prove this FBI testimony to be patently false.
(3) The Victim’s Underwear: the State’s Key Piece of Physical Evidence: At trial, the State’s theory of the case was clear: the perpetrator who raped the victim ejaculated and deposited his semen and sperm onto the victim’s underwear—and that person was James Bain. The underwear was admitted into evidence at trial by the State solely for this purpose. DNA results now prove that the State’s theory, along with the evidence used to prove its theory, was simply wrong.
(4) Defense’s Medical Expert on Serology: Dr. Richard Jones, a defense expert, testified at trial that Bain’s blood group was AB (with a strong A) leading to his conclusion, contrary to the FBI’s, that Bain could not have deposited the semen on the victim’s underwear. DNA results now prove Dr. Jones’ conclusion to be true.
(5) Bain’s Alibi: In addition to the expert testimony presented by Dr. Jones at trial that Bain could not have been the depositer of the semen on the victim’s underwear, Bain also had an alibi. He was out with friends earlier in the evening on March 4, 1974 and arrived home around 10:30 P.M. From 10:30 until the time police arrived at midnight, Bain watched TV and fell asleep in the living room with his sister. His whereabouts were accounted for during the time of the attack. DNA results now prove Bain’s alibi to be credible.
Jamie submitted handwritten motions four times seeking DNA testing, but he was denied each time. He was denied the fifth time, too, but an appeals court overturned that denial. The Innocence Project of Florida (IPF) stepped in to assist Mr. Bain, and he was finally able to get the DNA testing he’d wanted for so many years. Bob Young, General Counsel for the Tenth Judicial Circuit Public Defender, acted as co-counsel. The State Attorney agreed to the testing and it was sent to DNA Diagnostics Center, a private laboratory in Fairfield, Ohio. Testing on DNA of sperm found on the child’s underwear worn during the rape excluded James Bain as the donor of the sperm, confirming that someone other than Bain raped the victim.
On December 17, 2009, in a joint order James Bain was declared actually innocent and released from prison. He walked out of the courthouse with members of his family and his legal team. Immediately upon his release, Bain used a cell phone for the first time to called his mother in Tampa, Florida. Bain spent 35 years in prison.