August 3, 2005
DNA Tests Come to Prisoner's Defense
By ABBY GOODNOUGH and TERRY AGUAYO
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MIAMI, Aug. 2 - Luis Diaz says he was never a rapist. So do his children,
former wife and colleagues. But in 1980, eight assault victims swore
otherwise, and that was enough to send Mr. Diaz, a fry cook and father of
three, to prison for life.
On Wednesday, Miami-Dade prosecutors say they will ask a state judge to
vacate his convictions and sentences based on DNA evidence that was not
available 25 years ago.
The prosecutors say that they are not convinced that he is innocent of all
the crimes he was imprisoned for, but that it is too late to retry him
successfully. Lawyers for Mr. Diaz, now 67, say that his case is the best
evidence yet that witnesses can make devastating mistakes, and that such
testimony, however earnest and convincing, cannot be trusted.
Mr. Diaz's ordeal began on a summer day in 1977, when a teenage gas station
attendant took his license plate number and called the police, saying he was
the man who abducted and raped her a few nights earlier.
Lacking enough evidence to charge Mr. Diaz, who had no prior record, the
police let him go. But similar attacks followed, and a cloud settled over
Mr. Diaz, a Cuban immigrant whose wife usually picked him up from work at 11
He was arrested in 1979 after another rape victim picked him out of a photo
spread. Six more victims of rape or attempted rape then identified him in
lineups, seemingly ending the mystery of the so-called Bird Road Rapist,
named for the street in Miami where many of the assaults took place.
At his trial in 1980, Mr. Diaz wept. His restaurant co-workers swore that he
was innocent. Jurors did not deliberate long before convicting Mr. Diaz,
then 41, of seven attacks.
Barry Scheck, co-founder of the Innocence Project, a nonprofit group that
fights for DNA exonerations, said most - about 120 of 160 exonerations since
the advent of forensic DNA testing in 1989 - hinged on mistaken witness
identification. But none involved as many mistaken witnesses as the Diaz
case, he said.
"It's a landmark case for that reason," Mr. Scheck said. "These were crimes
that upset people in the community, there was pressure to solve them, and
there were, I think, unfortunate eyewitness techniques used that, in light
of what we know now, were the kind that lead to error."
Mr. Scheck and Colin Starger, Mr. Diaz's lawyer at the Innocence Project,
said they would use the case to push for new police techniques that a few
states and localities, including New Jersey, North Carolina and Boston, have
adopted to promising effect. One changes the way lineups are conducted,
moving out suspects one at a time instead of all at once. The idea,
researchers say, is to reduce the chance of falsely identifying someone who
simply resembles the perpetrator more than anyone else in the lineup.
Another change involves putting an officer who knows nothing about the case
in charge of a lineup or photo spread, so that the officer cannot influence
The Bird Road Rapist - if he was indeed one man, as the police originally
believed - preyed on young women driving after midnight. The attacker would
persuade them to pull over by flashing his headlights, force them into his
car at gunpoint and make them perform oral sex while he drove away from the
abduction spot. The assaults usually ended in rape.
Mr. Diaz was a problematic suspect from the start. He stood 5-foot-3 and
weighed 134 pounds - much shorter and lighter than the assailant that most
witnesses described. While most described their attacker as speaking
vulgarity-laced English with a Spanish accent - and detectives said Mr. Diaz
had answered questions in English - his restaurant co-workers swore that he
barely spoke a word of the language. They also testified that he reeked of
grease and onions at night after working long shifts behind the grill. But
no victim recalled such a smell.
After Mr. Diaz was convicted, the judge said, "I've never seen a case where
I was more convinced of a man's guilt."
But later, after Mr. Diaz had served more than a decade behind bars, two of
the victims decided he was not their attacker after all. They recanted their
testimony in 1993, after a private investigator raised doubts about Mr.
Diaz's guilt and the television program "Unsolved Mysteries" broadcast an
episode on the case.
One victim, whose identification of Mr. Diaz led to his arrest, said she had
originally thought none of the men in the nine photographs she was shown
resembled her attacker. She had asked to see more pictures, she said, but
settled on Mr. Diaz after the police twice told her to keep looking at the
first batch. He was the only one who remotely looked like the attacker, she
"They told me to look closer at the ones I had," she told a state prosecutor
in 1993, adding that the police were watching her study the photos "almost
like people holding their breath."
This victim said she grew more convinced that Mr. Diaz was her attacker when
she "shook like a leaf" upon seeing him in a live lineup.
"All these girls couldn't be wrong, the detectives couldn't be wrong, it
couldn't go this far," she recalled thinking.
After the recantations, Mr. Diaz's lawyers filed a motion in 1994 to vacate
his convictions. In 2001, prosecutors agreed to vacate the convictions
involving the two victims who recanted, and Mr. Diaz became eligible for
parole. But it was denied.
Katherine Fernandez Rundle, the Miami-Dade state attorney, said the fact
that DNA absolved Mr. Diaz of one crime did not necessarily absolve him of
the rest. The state could attempt to retry him on the other cases, Ms.
Rundle said, but some victims do not want to testify again, some cannot be
found, and the evidence absolving him of one rape could be introduced by the
"When you put all that together, the state cannot stand up in court and say
we can retry this case," she said. "But, and this is so imperative, that's
not to say he's innocent on all these other cases. Those victims believe in
their identification and we believe in the witnesses, and the last thing we
want to do is send a discouraging message to women out there who may be
witnesses in rape cases."
Mr. Diaz's son Jose, who said he was 13 when the police took his father away
in the middle of the night, read an article about DNA exonerations in 1998
and became determined to get his father tested.
Only two evidence samples remained: one from a victim who identified Mr.
Diaz but later recanted, and another from a victim who was attacked around
the same time but never brought charges. The testing found that one man
committed both rapes, according to the Innocence Project, but he was not Mr.
Virginia Snyder, the private investigator whose queries helped refocus
attention on the case in the 1990's, said she believed a small gang of
criminals, not one man, committed the rapes. Some of the victims originally
described their attacker as a white man with no accent, and the height
estimates ranged from 5-foot-6 to 6-foot-2.
In a prison interview on Tuesday, Mr. Diaz said that he had spent much of
his 25 years in prison reading the Bible and that he hoped to get to know
his grandchildren if he was released. His wife has remarried, and he wants
to move in with his oldest son.
"I hope it's a reality and not an illusion," he said. "All this time has
gone by fast to a certain extent. I've learned to live with it, but I've
always wanted to be free."