Thursday, October 28, 2004

Guilty as sin? Rapist insists on DNA test



Peter Bronson

In the middle of a November night 21 years ago, a college student heard a noise in her small third-floor apartment near campus and got out of bed to investigate. She was grabbed by a guy with a gun who had crawled in a window. Her rape was so horrible, the cops who got there first can't forget it.

"I've been retired nine years, and I still remember it,'' said former Cincinnati Police Officer Harry "Skip'' Berger. "Of all the things that occurred that I saw, this still stands out in my mind.''

His partner that night, Sgt. John Boertlein, works at CPD in the property room. "I still remember it like it was yesterday - how sorry I felt for her,'' he said.

"He crawled in off a balcony and violated her horribly,'' Boertlein said.

Boertlein and Berger not only took the 911 call, they were also in on the arrest later, after Arvil Davenport was stopped and frisked, and his palm print on top of the police cruiser matched one found on the windowsill at the victim's apartment.

The young student identified him and testified in court. And his blood type matched evidence from a rape exam, Berger said.

"He was guilty as sin,'' Berger said. "If there was a death penalty for this, I wouldn't mind pulling the switch.''

Davenport got 33 to 75 years. He is eligible for parole in 2007. But he's trying to get out earlier, with help from one of O.J. Simpson's lawyers.

Barry Scheck, O.J.'s DNA expert, is a founder of the Innocence Project at the Benjamin Cardozo Law School in New York City. Scheck has signed briefs filed in Hamilton County, demanding DNA tests to prove Davenport is not guilty.

That's where City Councilman John Cranley got involved. As leader of the Innocence Project at the University of Cincinnati, Cranley agreed to carry the ball for Scheck's team, and sent an e-mail to Cincinnati police, asking for evidence in the case.

The request went to the property room - and landed on the desk of Boertlein, who remembered it as if 1983 were 2003. Berger heard about the memo, and he couldn't believe it.

"Sure, there are probably people in jail who are innocent, but this kind of thing makes my blood boil,'' he said.

He thinks "it's improper'' for a councilman to ask the police to help pry loose a convicted rapist. Cranley said it was not like that at all. His e-mail was sent from his UC account, not City Hall, he said. And the search was ordered by a Hamilton County judge, he said.

"I am in no way convinced he is innocent or guilty,'' Cranley said. "But if someone claims he is innocent for years and years, and there is DNA evidence available, let's test it. There should be no fear of testing.''

Ron Springman of the Hamilton County prosecutor's office handled the case. "I tried to go the extra mile,'' figuring a test "would most likely solidify the case'' against Davenport, he said. A new Ohio law requires a DNA test if evidence is available and an inmate requests it, and the deadline for Davenport was expiring, he said.

"I did everything we're supposed to do under the statute,'' Springman said. "We searched everywhere.''

But DNA collected 21 years ago is gone.

Cranley said the Innocence Project will drop the appeal. Davenport will probably stay in prison until at least 2007.

It also means the victim will be spared the torture of being dragged back to that horrifying night in 1983. We don't need a test to prove she was innocent.

But I wonder: Who is still trying to help her, 21 years later?

E-mail pbronson@enquirer.com or call 768-8301.




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