Factual background: On the night of February 1, 1986, when the victim was walking home from a bus station, a man came behind her, held a knife to her throat, and forced her to a grassy area near a highway overpass. There the assailant, while attempting to hide his face, sexually assaulted the victim and forcibly took $6 from her. After telling the victim to roll away from him, the assailant left the area on foot.

On May 13, 1986, Dwayne Scruggs was convicted of rape and robbery in a jury trial in a Marion County Superior Court. He was sentenced to serve 40 years on the rape charge and 20 years on the robbery charge, with sentences to run concurrently.

Prosecutor's evidence at trial: The prosecution's main evidence consisted of the following:

· The victim identified Scruggs ("with 98 percent surety") from a sex crimes file of approximately 200 photographs.

· The victim identified Scruggs a second time from a different picture and made an in-court identification of him at trial.

· The victim identified Scruggs' boots as matching those worn by her assailant.

· Scruggs acknowledged being familiar with the area where the rape occurred.

Postconviction challenges: In August 1987, Scruggs' appeal was heard before the Supreme Court of Indiana (511 N.E.2d 1058). His petition was based on both a lack of evidence to convict and an "evidentiary harpoon" committed by a police officer who had testified before the jury that the victim had viewed photos of "Individuals who have all been arrested for rape or a sexual assault." The jury was admonished to disregard his statement, but no mistrial was declared by the court. The supreme court affirmed the decision of the superior court.

On December 18, 1992, Scruggs' public defender submitted two motions on his behalf. The first was to amend the petition for postconviction relief. This motion stated that the defendant was denied due process of law when he was given a sentence that was not based upon the evidence in the case. Entering evidence of the petitioner's previous arrest for rape (for which he was not convicted) was also cited as a denial of due process. The motion also stated that the defendant was denied effective assistance of counsel at both the trial and appellate levels.

The second motion was for the release of all the State's evidence that contained biological samples of the victim for the purpose of performing DNA tests that were not available at the time of trial. On February 24, 1993, prior to a ruling on this motion, Scruggs' attorney filed a motion to allow production of laboratory reports that would analyze the evidence and blood samples from Scruggs. On April 26, 1993, the public defender also petitioned for blood samples to be drawn from the defendant.

The court held a hearing on all these motions on April 27, 1993, and ruled that the blood sample could be drawn and that the Indianapolis Police Department laboratory must release the vaginal swabs and slides. Those materials were sent to Cellmark Diagnostics in Maryland for DNA tests. The public defender's office paid for the testing.

DNA results: The report from Cellmark stated that DNA from all the items sent were amplified using PCR and typed for DQ alpha using an HLA DQ alpha forensic DNA amplification and typing kit. The results excluded Scruggs as the source of the DNA from both the nonsperm cell fraction and sperm fraction of the vaginal swabs as well as from a bloodstain obtained at the scene of the crime.

Conclusion: After verifying the results of this test, the prosecutor's office joined the defender's office in fling a motion to vacate Scruggs' conviction and sentence. On December 17, 1993, the Superior Court vacated both the sentence and the conviction and ordered Scruggs released. Five days later, the prosecution declined to prosecute in a new trial and asked the court to dismiss all charges against Scruggs. The court sustained the motion.