AUG 24, 2001

Death Row Inmate Is Freed After DNA Test Clears Him


BOISE, Idaho, Aug. 23 Charles Fain has been on death row for almost 18 years for the rape and murder of a 9-year-old girl who was snatched off the street in Nampa, a small town west of here.

But this afternoon, Mr. Fain, 11 days shy of his 53rd birthday, walked out of the maximum security prison here into the blazing sun, a free man. Two hours earlier, a state judge ordered the charges against him dismissed on the basis of DNA tests indicating that hairs found on the girl's body, which had been used to convict Mr. Fain, were not his.

"Sometimes it looked pretty dark," Mr. Fain said, but he said he had been confident he would be exonerated. "I'm 100 percent innocent. The day the crime happened, I was sound asleep at my dad's" house 360 miles away in Redmond, Ore.

Mr. Fain had difficulty today using the seat belts in the car that drove him away from prison they were not mandatory when he went to prison held on tightly when he rode in an elevator to his lawyer's ninth- floor office and was uneasy walking on thick carpet. "I'm used to walking five steps forward, five steps back, then three steps to the side," he said, describing life in his cell.

Mr. Fain was convicted of the Feb. 24, 1982, kidnapping, rape and murder of the girl, Daralyn Johnson, after a forensics expert from the Federal Bureau of Investigation said microscopic examination the standard test at the time showed three hairs found on the victim's body were probably Mr. Fain's.

"Justice requires the action we have taken today," David L. Young, the Canyon County prosecutor, said today at a news conference in Caldwell, where the case had been tried. "It also requires that we do everything we can to solve this case."

Mr. Young added, "The killer has not yet been apprehended."

Today the Johnson family seemed to accept Mr. Fain's release.

"We would like to say we are in complete support of the judicial system and all those involved in the reinvestigation of this case," the family said in a statement. "We are confident that we will have closure and that all those involved will be brought to justice."

At least 96 people have been exonerated and freed from death rows in 22 states since the death penalty was reinstated in 1973, according to the Death Penalty Information Center, a nonprofit group in Washington that opposes capital punishment.

Six death-row inmates were exonerated in the first half of this year, Senator Patrick J. Leahy, Democrat of Vermont, said in June. Mr. Leahy, chairman of the Senate Judiciary Committee, has sponsored a bill to improve the quality of defense counsel and ensure the availability of DNA testing in capital cases.

The Johnson murder shook the residents of Nampa. The girl had been abducted as she walked to Lincoln Elementary School, then raped; her body was thrown in a ditch near the Snake River. It was not found for several days.

After seven months, the police were stymied. Then they picked up Mr. Fain. A Vietnam veteran who had served with the 101st Airborne, Mr. Fain had difficulty holding a job after his honorable discharge, bouncing between Idaho and Oregon. At the time of his questioning, he was living in Nampa, a block from Daralyn's house.

His address, and his light-brown hair similar to that found on Daralyn's body were the reasons he was called in for questioning, his appellate lawyers said in one filing.

Mr. Fain was among scores of men asked to give hair samples. An F.B.I. expert concluded that his were similar to those found on Daralyn.

A month later, the police interrogated Mr. Fain for more than two hours, then asked him to take a polygraph test; he agreed.

A state examiner of the test concluded that Mr. Fain was telling the truth when he denied involvement in the rape and murder. At the trial, though, prosecutors objected to introducing the polygraph results as evidence and the judge agreed.

Some of the most damning evidence against Mr. Fain was the testimony of two jailhouse informers. The men gave lurid details of what they said Mr. Fain had told them about what he had done to Daralyn.

It is not clear why the two men gave what now appears to be false testimony. One of Mr. Fain's appellate lawyers, Spencer McIntyre, said it showed how jailhouse informers manipulate the system, knowing that if they cooperate, the authorities will go easier on them even without an explicit promise or deal.

One person who always contended Mr. Fain was innocent was Christine Harding, a librarian at the Redmond Public Library. She testified at his trial that in February 1982 he was a regular at the library, though she could not say unequivocally that he was there on Feb. 24.

"Awesome!" an elated Mrs. Harding exclaimed today when told the news in a telephone interview from Garden City, S.D., where she now lives. "Praise God. I just think it's pathetic so many years of Charles's life have been taken away from him that can't be given back."

But Richard Harris, the original prosecutor, said the DNA test had not shaken his view, citing the testimony of the two informers.

"It doesn't really change my opinion that much that Fain's guilty," Mr. Harris said. "The case was a circumstantial-evidence case. There was a myriad of circumstances that pointed in his direction."

The trial judge, James Doolittle, also said he had no doubt that Mr. Fain was guilty. "If I had had the slightest doubt, I certainly would not have imposed the death penalty," said Judge Doolittle, who is retired.

D. Fredrick Hoopes, an Idaho lawyer who has worked on the case for more than a decade, said such reactions reinforced the problems with the death penalty. "We just can't kill people who we are sure are guilty," Mr. Hoopes said.

Mr. Fain's parents died while he was in prison; he did not know where he would live or what he would do now. "One day at a time," he said at his lawyer's office. Asked what he would have for dinner, he said, "whatever they put on the tray." Then, realizing he was not going to be fed by authorities tonight, he said, "I'll have to start making decisions for myself."

Copyright 2001 The New York Times Company

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