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Warith Habib Abdal

On May 18, 1982, Leslie A. Werner, a 23-year-old white woman, was raped and robbed in an Erie County, New York, nature preserve where she had been bird-watching with her husband. She described her attacker as a black man between five feet eight and five feet ten with a space between his upper front teeth and a “tenor-type” voice. Warith Habib Abdal, a 43-year-old African American then known as Vincent H. Jenkins, did not fit this description. He was six feet two inches tall, there was no gap between his teeth, and he had a deep voice. Nonetheless, he was picked up for questioning about the crime four and a half months after it occurred. Abdal was presented to Werner in a one-man show-up, but she failed to identify him as her attacker. She then viewed a photograph of Abdal that was four years old. She returned to the show-up and identified him. Based on Werner’s identification, an Erie County grand jury indicted Abdal for first-degree rape, sodomy, and second-degree robbery. Before his trial opened on May 31, 1983, Judge Frederick M. Marshall suppressed the pre-trial identification, calling the police identification procedure “highly improper.” Marshall nonetheless permitted Werner to identify Abdal in court based on a supposed “Braille-type” recollection from touching his face during the rape. No other evidence purported to link Abdal to the crime. A forensic analyst testified that he had compared a Negroid eyelash recovered from Werner at the hospital where she was treated after the attack and found it was dissimilar to Abdal’s eyelashes, but he said it was “not unusual for different hairs to come from the same person—a claim that had no scientific basis. On June 6, 1983, the jury convicted Abdal of all charges. On November 4, 1983, Marshall sentenced him to prison for twenty years to life. On July 10, 1987, the Appellate Division of the New York Supreme Court affirmed the conviction.

Forensic analyses:

Hair microscopy
Though “the hairs — hair samples were distinctively different,” where, for example, “the hair taken from Mr. Jenkins had a different medulla, which is the center part of the hair,” there was no exclusion, because “[i]t’s not unusual to have different hairs come from the same person,” and speculating that there is a statistical possibility that other unexamined hairs could be similar: “The study shows it would not be unusual to have to look at 4,500 strands of hair from the head in order to get a match with any one particular hair. And, from the pubic hair, one may have to look at as much as 800 hairs, and it can be from the same person. That gives an idea of how much a hair can vary just within one single person.” That testimony, if reliance on that study were appropriate, would suggest a statistical basis not to rely on the forensic method of hair comparison, which is based on selected exemplar hairs rather than on review of hundreds of hairs from a given person. See Part II.B.2. for a discussion of this case. Forensic examiner: Michael J. Krajewski, Erie County Central Police Services Central Police Laboratory, participated in a hair microscopy conference at the FBI during this period and expressed concern about how to interpret cases of this type.

Postconviction review of forensic analysis and reporting

Following the advent of DNA forensic technology, which did not come into being until long after Abdal had exhausted his state appeals, his appellate lawyer, Eleanor Jackson Piel, filed a petition for a federal writ of habeas corpus. At Piel’s request, on February 10, 1992, Senior U.S. District Court Judge John T. Elfvin ordered DNA testing of vaginal swabs and slides collected from Werner at the hospital after the attack. The testing was done in 1993 by Dr. David Bing of CBR Laboratories in Boston, but the results were inconclusive. Then, at Piel’s request, Barry Scheck of the Innocence Project joined Abdal’s legal team. In the hope of resolving the ambiguities in Bing’s work, Piel and Scheck arranged for new testing by Cellmark Diagnostics in Germantown, Maryland. In late 1998, the Erie County Forensic Science Laboratory sent the swabs and slides to Cellmark via Federal Express, but the evidence was lost in transit. The DNA samples prepared five years earlier by Dr. Bing still existed, however, and from these Dr. Edward T. Blake of Forensic Science Associates in Richmond, California, performed tests in 1999 conclusively establishing Abdal’s innocence. After Blake’s results were confirmed by the Erie County Forensic Science Laboratory, on August 31, 1999, Judge Elfvin ordered Abdal freed. The next day, Abdal was released from the maximum security Green Haven Correctional Facility in Stormville, although he still faced a possible retrial. On November 2, 1999, Supreme Court Justice Joseph P. McCarthy, the supervising judge for western New York criminal courts, dismissed the indictment. In January 2002, a Court of Claims action brought by Abdal was settled for $2 million—$323.62 for each of the 6,180 days he was wrongfully incarcerated. He did not have long to enjoy the money. On September 19, 2005, he died of cancer at age sixty-six.

Erie County, NY

Alleged crime occurred:

Date of original conviction:

Exoneration date:

National Registry of Exonerations link:

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