08/29/07 — Ex-prosecutor says he had no choice but to proceed in case

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Ex-prosecutor says he had no choice but to proceed in case

By Matthew Whittle
Published in News on August 29, 2007 1:46 PM

Former Wayne County assistant district attorney Don Strickland knows the role he played in Dwayne Allen Dail's rape conviction 18 years ago. He knows that he is at least in part responsible for the years Dail lost in prison.

And he is sorry about that.

But he also knows that 18 years ago, he went to trial with the best information he had.

"In the DA's office I handled all of the sex cases, all the rape cases," Strickland said.

It wasn't a job he was thrilled about, but it was one that he did.

"At the time it was just my job. It was pretty straightforward. I didn't have the strongest case in the world, but nor did I have the weakest," he said.

And once Dail turned down a plea deal -- indecent liberties, which depending on Wayne County Superior Court Judge Frank Brown's sentence could have been probation or a short jail sentence -- there wasn't much choice left but to press forward.

"I've asked myself a thousand times what I would have done if I was him," Strickland said.

He explained that his prosecution of Dail hinged on two things -- the victim's identification and the "microscopically consistent" hair found on the rug in her room.

"The strongest thing I remember about it was the way she identified him. She was walking in an apartment area and she just froze and said 'Mom, that's him.' She was an excellent witness. She was almost a prosecutor's dream. She positively (identified) him," Strickland said.

And really, that was what the whole case hinged on -- that and her mother's persistence that got the district attorney's office involved.

"It wasn't the greatest police work in the case. That detective was no Sherlock Holmes. After she made the complaint it kind of got drug out and she came to the DA's office," he said.

From there, the matter was investigated and taken to the grand jury.

The only other piece of evidence pointing to Dail was the hair -- a strand found on a second-hand rug that was microscopically consistent -- meaning it had the same characteristics -- as his.

And, Strickland added, while they didn't ignore the fact that a pubic hair found on the rug did not match Dail's, it wasn't enough to stop the prosecution.

"It could have come from anywhere. That really got me kind of thinking, but the fact that we found a hair consistent with Dwayne Dail's was much more important than the inconsistent hair, he said. "The science of that hair match was not the greatest in the world, but in those days we didn't have DNA. It was the best we had.

"I thought it was better than nothing, but it turned out it wasn't."

And, he continued, even if the nightgown with the semen stain had been entered into evidence during the trial, it wouldn't have mattered. They had a vaginal swab, which was better, and they still weren't able to make an accurate determination whether it had come from Dail or not.

"It was the eyewitness ID and the hair -- that was it," Strickland said.

On the other hand, had modern trial rules been in place, the defense would have been required to notify the prosecution ahead of time that they would be offering an alibi defense -- that Dail and his witnesses were saying he had been 15 miles away with no transportation.

"If we'd known about that alibi, it may have made a difference in how we handled the case," he said.

But as things stood, he continued, all he could do was his job with the evidence at hand.

"The girl said that he was the guy who did it. I couldn't dismiss that," Strickland said.

But he never forgot about the case. Even after it ended, he said he stayed in contact with defense attorney Shelby Benton and later urged her to find out if any DNA existed. He did not know that any evidence remained from the case.

"The reason I remember this case is when he was convicted, he went berserk saying he was innocent and he always maintained his innocence," Strickland said. "I feel bad about it. It's a prosecutor's nightmare to convict an innocent man. I regret it."