Between 11:30 a.m. and noon on April 8, 1986, a Black man walked into a shoe store in Lake Elsinore, California. After browsing for a few minutes, the man drew a pistol and forced the 23-year-old female manager into the rear of the store, where she was robbed and raped. The victim told police that her attacker ejaculated and wiped the semen from his genitals on her sweater.
After the man left, the victim called the police and was taken to a hospital, where a rape kit was collected. Her clothing, including her pink sweater with the semen stains, was collected and marked for identification.
She then went to the police station where, because she said that her attacker was young, police showed her yearbooks from Elsinore High School. She was unable to find her assailant. When Riverside County Sheriff’s Deputy Danny Miller left the room, the woman noticed a wanted poster on the wall, and she believed the man in the photograph, 20-year-old Herman Atkins, was her attacker. At the time, Atkins was wanted for a shooting on January 26, 1986, in Los Angeles that had wounded two police officers.
When Miller returned, the woman told him that she believed the man in the photo was her attacker. Miller then put a photograph of Atkins in a photographic array and the woman identified him as her attacker.
A witness who worked at the store next to the shoe store was shown the wanted photograph. The witness said that Atkins had been in her store earlier on the morning of the attack.
On October 8, 1986, Atkins was arrested in Phoenix, Arizona, for the Los Angeles shooting charges. He said that he did not intend to shoot the officers but was defending a friend of his who was being shot at. Atkins pled guilty to assault with a deadly weapon and was sentenced to eight years in prison.
He was subsequently charged with rape and robbery for the attack at the Lake Elsinore shoe store.
Prior to his trial, during a court hearing on his case, Deputy District Attorney Richard Bentley arranged for the victim to be in the courtroom. On that day, Atkins and six other men who were scheduled to be in court were sitting in the jury box, shackled together. Atkins was the only Black man in the group.
Bentley sat down next to the victim and asked her if she recognized anyone as her attacker. She pointed to Atkins.
The witness from the other store also was in the courtroom and she also identified Atkins as the man who had been in her store earlier on the day of the crime.
In September 1988, Atkins went to trial in Riverside County Superior Court. The victim and the witness from the store next to the shoe store both identified Atkins.
Miller testified about the identification procedures and also testified that he had obtained a statement from a man named Eric Igram, who said that Atkins was a gang member and that he had seen Atkins in Lake Elsinore near the shoe store on the day of the attack.
James Hall, a criminalist from the California Department of Justice Bureau of Forensic Services, testified that the semen found on vaginal swabs was deposited by someone with blood type A and with Phosphoglucomutamase markers of 2+1+. This typing was consistent with both the victim and Atkins. Hall also testified that the semen stain recovered from the victim’s sweater revealed the presence of a type A secretor and that about 25.9 percent of the Black population had type A blood, and 80 percent of the population were secretors. A secretor is someone whose blood type can be determined by analyzing their bodily fluids. Further, he testified that approximately 21.4 percent of the population, both Caucasian and Black, have PGM Type 2+1+. Hall concluded that, based on these numbers, Atkins was included in a population of approximately 4.4 percent of people who could have been the source of the semen.
Atkins, who lived in Los Angeles, testified and denied committing the crime. He said had never been to Lake Elsinore, which was 70 miles southeast of Los Angeles, and didn’t even know where it was. His wife testified and said that Atkins did not have access to a car.
During final arguments, Bentley, in discussing the forensic testimony, said, “So, this evidence can’t be used to say this is exactly him, but it excludes a large percentage of the people, and does not exclude him, and that’s corroboration.”
On September 8, 1988, Atkins was convicted of two counts of rape, two counts of oral copulation and one count of robbery. He was sentenced to 45 years and eight months in prison.
In 1993, Atkins asked the Innocence Project for assistance in obtaining DNA testing. After locating the sweater and vaginal swabs in 1995, a law student intern at the organization attempted to persuade Bentley to agree to the testing. At that time, there was no law that permitted defendants to seek DNA testing. Bentley declined. In June 1997, the Innocence Project filed a motion for DNA testing. A hearing was set for July 11, 1997. The motion was denied when a volunteer lawyer recruited by the Innocence Project did not show up for the hearing.
In 1999, the Innocence Project filed another motion for DNA testing. In August 1999, the motion was granted, and the evidence was sent to Dr. Edward Blake at Forensic Science Associates (FSA), in Richmond, California.
In December 1999, FSA reported that DNA tests had been conducted on three separate areas of the victim’s sweater. In all three areas, the results were consistent—Atkins was excluded as the source of the spermatozoa.
Blake’s report of the exclusion said that Hall’s testimony that Atkins was in 4.4 percent of the population was wrong and that Hall’s findings did not narrow the potential population at all. Blake said that Hall’s testimony was “a fundamental misrepresentation of the scientific evidence and, therefore, constitutes scientific fraud.”
Riverside County District Attorney Grover Trask then arranged for the FBI to review FSA’s results. On February 17, 2000, Trask announced that FSA’s test results had been confirmed.
On February 18, the following day, Atkins’s convictions were vacated and the charges were dismissed. Atkins was released.
In 2001, Atkins filed a federal civil-rights lawsuit against Miller and Riverside County. By that time, Miller had begun working for the FBI.
In 2007, a jury awarded Atkins $2 million. The jury concluded that Miller had “intentionally attributed a statement” to a witness—Eric Ingram—that Ingram did not make. Prior to the civil trial, a defense investigator had tracked down Ingram. Igram had signed a sworn statement saying he did not know Atkins and had not told Miller that he had seen Atkins in the vicinity of the crime scene.
The jury also concluded that Miller had “failed to disclose” that he had “fabricated” the statement and that there was a “reasonable probability” that if he had told the truth the outcome of Atkins's trial would have been different.
A federal judge later ordered Riverside County to pay Atkins’s attorneys $1.5 million in fees and costs.
In September 2007, the National Innocence Network, then comprised of innocence projects at 31 law schools, asked the U.S. Department of Justice to investigate Miller, who was an intelligence analyst for the FBI. No public action was taken.
– Maurice Possley
Posting Date: 08-29-2011
Last Update Date: 03-23-2026
