At about 6:30 a.m. on May 24, 1997, a 55-year-old woman, identified as E.P., was out for her daily walk in Clove Lakes Park in the Sunnyside neighborhood of Staten Island, New York. She noticed that she was being followed by a man. When she turned to walk in the other direction, he continued to follow her. She sat down on a park bench, hoping he would walk past.
Instead, he grabbed her, throwing her down, choking her, and demanding that she come with him. E.P. fought back and the attacker bit her left hand. The assailant then took out his penis, at which point the victim said she passed out.
E.P. was found by a passerby, who contacted the police. She was taken to a medical center, where a rape kit was taken. She gave the police an initial description and helped them compose a sketch. The description of the assailant and his clothing, including that he was wearing a fringed leather jacket, was published in a local newspaper. It showed a white man who was clean-shaven with dark hair.
A man who saw the sketch called the police to report that he knew a man who fit the description, including a fringed leather jacket, and who he had seen in and near the park where the crime occurred. He said the man was 32-year-old James O’Donnell.
The police obtained a photograph of O'Donnell, who had a Fu Manchu mustache and light brown hair, and placed it in a photographic lineup. The lineup was viewed by Angela Bertolino, a woman from Maryland who had been walking her dog that morning with a friend. Bertolino said O’Donnell “looked like” the man she saw. Her friend, Vivian Percu, was not available to view the lineup.
The police showed the photographic lineup to E.P., and she identified O’Donnell as her attacker.
O’Donnell was arrested on May 26, 1997. He stood in a live lineup. The victim identified him again. Bertolino viewed the lineup and picked out a filler. Her friend, Percu, identified O’Donnell as the man she saw that morning when she was with Bertolino.
O’Donnell was charged with first-degree attempted sodomy and second-degree assault. On September 26, 1987, he was indicted on those charges.
Prior to O’Donnell’s trial, his defense attorney, Andrew McGee, asked the prosecution to perform DNA testing on the evidence. The prosecution said there was no biological evidence to test.
In April 1998, O’Donnell went to trial in Richmond County Supreme Court. E.P. identified him as her attacker. She said he grabbed her, threatened to kill her, choked her and exposed himself in an attempt to force her to engage in oral sex. Then she passed out.
E.P. said that she could not forget the attacker’s face. “The man was on me,” she testified. “Four inches in front of my face. I had to be blind, considering he tried to choke me to death.”
She said she fought back and he bit her hand in the struggle before she passed out. She said that when she regained consciousness, people were around her offering help.
Bertolino and Percu both testified. Only Percu identified O’Donnell as the man she and Bertolino saw that morning as they walked Bertolino’s dog. Bertolino was unable to make an identification.
The prosecution also presented testimony from a forensic expert who said that the bitemark on E.P.’s hand appeared to have been made by O’Donnell’s teeth.
After the prosecution finished presenting its evidence, defense attorney McGee sought to introduce evidence that another man was the perpetrator. In a presentation outside the presence of the jury, McGee said he wanted to call a woman who would testify that she had seen a vagrant exposing himself in the park. Justice Joel M. Goldberg allowed the motion, saying that the man’s photograph bore a “striking resemblance” to the police sketch of E.P.’s attacker.
The witness, Kathy Woods, testified that after seeing the sketch of the suspect in the newspaper, she called police because she believed it resembled a dirty, disheveled man she talked to in the park about four days before the attack.
She said the man showed her where he was sleeping in the park. She said he told her he had recently been released from jail.
Kim Marie O’Keefe, who was living with O’Donnell and her son when he was arrested, testified that on the night of the crime, O’Donnell was at home and slept through the night. She said she recalled the date because a bridal shower for her future sister-in-law was scheduled for the next day. She said that he was in their home until he left for a 10 a.m. appointment. She said he never owned a fringed jacket. Her son also testified that he was at home.
The defense called Dr. Noel Riesner, who testified that there was no scientific way to compare bitemarks on the victim’s hand to an imprint, taken by authorities, of O’Donnell’s teeth.
The prosecution recalled E.P. in rebuttal. She testified that the photographic lineup she had viewed included the photograph of the vagrant, and that he was not her attacker.
On April 28, 1998, after deliberating for eight hours over two days, the jury convicted O’Donnell of all the charges. When the verdict was announced, O’Donnell exploded. He cursed the jury, demanding, “How could you live with yourselves.” He was removed from the courtroom because of his outburst.
On May 19, 1998, at his sentencing hearing, O’Donnell broke down in tears as he denied he committed the crime. “Something did happen to her, but it wasn’t me,” O’Donnell told Justice Goldberg. “I’m a family man with a beautiful wife and stepson. I’ve never hurt or sexually assaulted anyone in my life … Please let me go home … I did not do this crime.”
Justice Goldberg rejected his plea and sentenced him to 3½ to 7 years in prison.
A year later, O’Donnell’s Legal Aid attorney on appeal, Lori Schellenberger, uncovered a police report indicating that a sexual assault evidence collection kit had been prepared by a nurse at the medical center. Included in that kit was a paper towel used to swab the bite wound on the victim’s hand. There also were fingernail scrapings.
Schellenberger asked prosecutors if the evidence had been tested and if it was still available for testing. The kit was located and, with the cooperation of the Richmond County District Attorney’s Office, it was sent to the Office of Chief Medical Examiner of the City of New York (OCME). The examiner’s office inspected and inventoried the kit, then shipped it to Forensic Science Associates (FSA), a California DNA laboratory.
In 1999, FSA found male DNA in the swabs taken from the bitemark as well as in the fingernail scrapings. The male DNA profiles from both samples were the same profile and excluded O’Donnell.
Based on the results of the DNA testing, the district attorney’s office agreed to release O’Donnell on April 27, 2000.
Later that year, OCME performed additional testing that produced the same results. On December 13, 2000, O'Donnell’s convictions were vacated and the case was dismissed.
In 2006, he was awarded $300,000 in compensation by the state of New York.
– Maurice Possley
Posting Date: 08-29-2011
Last Update Date: 03-02-2026
