3L Wins Conviction of Dorchester Serial Rapist

BY KAREN TENENBAUM

Two weeks ago, 3L Mindy Klenoff helped prosecute and win a conviction in a criminal case in Suffolk Superior Court two. Klenoff’s work on this case is with the Suffolk County D.A. Family Protection and Sexual Assault Unit (FP&SAU), a placement she created for her clinical component of Bill Stuntz’s fall Advanced Criminal Procedure course. She worked on this case with lead prosecutor and Chief of FP&SAU, David A. Deakin, ’91.

In a fact pattern worthy of a Law and Order episode, the defendant was a serial rapist with an identical twin. “[The defendant] is every urban girl’s worst nightmare,” Klenoff said, explaining that he has been the subject of two rape cases and four trials. The trial of the first case, a stranger rape, resulted in a conviction. In that case, the facts were strong: there was relevant evidence related to the defendant’s tattoo and haircut. In the second case, another stranger rape in April 2001, the factual evidence of identification was weaker, and the first two trials resulted in hung juries.

In this trial, the third for the second rape, the team had to overcome the major hurdle on which the prosecution had stumbled in the first two trials: the fact of the defendant’s identical twin. Klenoff’s team had DNA evidence from blood the defendant left when he busted a window trying to break into another woman’s house several months after the second rape; that blood matched the DNA from the April rape. And while the DNA evidence narrowed “the universe of possible suspects down to two,” Klenoff said, two exact matches is not, by itself, good enough to convict one of them. The defense wanted to paint the brother as “living reasonable doubt. Just because he exists, you can’t prove that it’s this other one,” she remembered.

It was Klenoff’s team’s successful motion to introduce “prior bad acts” evidence that turned the tide and made conviction possible. “Prior bad acts” evidence – evidence of past misconduct (regardless of whether it resulted in conviction) – is typically inadmissible to impeach the character of a witness or party in Massachusetts. But Klenoff’s team saw that the defendant’s past behavior – his first rape conviction, several break-ins and several sexual assaults within a small radius in his neighborhood – were relevant to this case as evidence of the defendant’s identity. Essentially, Klenoff’s team moved that the previous conviction and other prior bad acts established the defendant’s “signature,” and they wanted to be able to argue that the rape in question fit the pattern. “We needed to show that it could only have been one mind that conceived of these things,” Klenoff said.

Finally, in an unusual twist, it was an individual juror who may have done the most to exculpate the defendant’s twin. The judge allowed the jurors to question witnesses themselves, an uncommon discretionary practice. They asked their questions through the judge, who in turn rephrased them to conform with court standards. After the brother testified, a juror asked, “Do you have a lisp?” The brother did, indeed have a speech impediment, and the fact was important because the victims in the case had testified that although the assailant’s breath in some cases smelled of alcohol, his speech was always clear. Furthermore, the twin had never been convicted of a sexual assault and had a solid alibi for the prior rape.

After almost 3 weeks of trial, the jury entered deliberations and emerged a mere 5 hours later to render its verdict. When Klenoff’s team got the call, “we were pretty optimistic,” she remembered. “I didn’t think they were going to acquit in five hours.” She had watched the jury closely throughout the trial. “You try to read their minds,” she said. “My impression was that they paid very close attention.” The defendant was sentenced to 15-20 years in state prison, to begin after he completes his 10-15 year sentence on the prior rape, with 10 years of probation upon his release.

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