Factual background: The victim testified that on the evening of February 18, 1986, she had dropped off laundry at the home of Davis, a family friend. When she returned to pick up the laundry, she was attacked and raped by Davis on his waterbed. Davis's father, according to the victim's testimony, was present during the assault and made no efforts to intervene on her behalf.

In May 1986 Gerald Wayne Davis was convicted by a Kanawha County jury of kidnapping and two counts of sexual assault. The circuit court judge sentenced Davis to 14 to 35 years in prison. Dewey Davis, the defendant's father, also was convicted of abduction, first-degree sexual abuse, and second-degree sexual assault.

Prosecutor's evidence at trial: The prosecution based its case on several points:

· The victim knew Davis and identified him to police.

· The victim also made an in-court identification of Davis.

· A State police chemist testified that DNA tests could not exclude Davis as the source of the semen found on the victim's underpants.

· Police found a shoe and a jacket belonging to the victim in the Davis home.

· The Davises asserted an alibi that they did nothing while the victim washed clothes.

Postconviction challenges: Both Davis and his father filed appeals. The appellate court dismissed one count of sexual assault and the kidnapping charge for both defendants. As a result, their sentences were reduced to 10 years each.

After an investigation of cases involving chemist Fred Zain (see also the Glen Woodall and William O'Dell Harris cases), many convicted persons were permitted to file a writ of habeas corpus if Zain worked on their cases. Davis filed such a writ based on the potential for falsified evidence by Zain and the possibility of exculpatory evidence in a new DNA test. The West Virginia Superior Court granted the writ on the condition that DNA tests be performed on the remaining trial evidence.

DNA results: Davis's defense attorney asked for DNA tests to be performed on the original trial evidence. The judge agreed to the use of the Center for Blood Research (CBR) for testing. The results showed DNA markings from the victim and a man, but not from Davis. Prosecutors ran a second series of tests. They also excluded Davis as the semen source. DNA tests also were performed on Davis's underwear and bedsheets. These tests showed no evidence of the victim's DNA.