James O’Donnell

The Crime

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, when she noticed that she was being followed by a man. When she turned to walk the other direction, he continued to follow her. She sat down on a park bench, hoping he would walk past.

Instead, he grabbed her and demanded that she come with him. E.P. fought back and the attacker bit her left hand. Soon after, E.P. passed out. 

Eventually, E.P. was found by a passerby, who contacted the police. She was taken to a medical center, where a rape kit was collected. She gave the police an initial description and helped them compose a sketch of a clean-shaven man with dark hair. The description of the assailant, including a mention of his fringed leather jacket, was published in a local newspaper. 

The Investigation

A man who saw the sketch called the police to report that a man who fit the description, down to the fringed leather jacket, 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 Mr. O’Donnell — who had a long, hanging 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. Ms. Bertolino said Mr. 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 Mr. O’Donnell as her attacker.

Mr. O’Donnell was arrested on May 26, 1997. E.P. identified him again in a live lineup. Ms. Bertolino viewed the lineup and picked out a filler. Her friend, Ms. Percu, identified Mr. O’Donnell as the man she saw that morning when she was with Ms. Bertolino.

Mr. O’Donnell was charged with first-degree attempted sodomy and second-degree assault. On Sept. 26, 1987, he was indicted on those charges.

The Trial

Prior to Mr. 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, Mr. O’Donnell went to trial in Richmond County Supreme Court. E.P. identified him as her attacker, citing that she could not forget his 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.”

Ms. Bertolino and Ms. Percu both testified. Only Ms. Percu identified Mr. O’Donnell as the man she and Ms. Bertolino saw that morning as they walked Ms. Bertolino’s dog. Ms. 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 Mr. O’Donnell’s teeth. 

After the prosecution finished presenting its evidence, defense attorney Mr. McGee sought to introduce evidence that another man was the perpetrator. In a presentation outside the presence of the jury, Mr. 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 man she had talked to in the park about four days before the attack. The man had shown her where he was sleeping in the park and told her he had recently been released from jail. 

Kim Marie O’Keefe, who was living with Mr. O’Donnell and her son when Mr. O’Donnell was arrested, testified that on the night of the crime, Mr. 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. He had stayed 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 Mr. 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, the jury, after deliberating for eight hours over two days, convicted Mr. O’Donnell on all the charges. When the verdict was announced, Mr. 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, Mr. O’Donnell broke down in tears as he denied he committed the crime. 

“Something did happen to her, but it wasn’t me,” Mr. O’Donnell told Judge 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.”

Judge Goldberg rejected his plea and sentenced him to 3.5 to 7 years in prison.

The Exoneration

A year later, Mr. O’Donnell’s Legal Aid Society attorney, Lori Schellenberger, uncovered a police report indicating that a sexual assault evidence collection kit had been prepared by a nurse at the medical center. The kit included a paper towel used to swab the bite wound on the victim’s hand, as well as fingernail scrapings. 

Ms. 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 the Medical Examiner of the City of New York. The Medical Examiner’s Office inspected it, inventoried it, and 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 of the same profile, but O’Donnell was excluded. 

Based on the results of the DNA testing, the District Attorney’s Office agreed to release Mr. O’Donnell on April 27, 2000. 

Later that year, the Medical Examiner’s Office did additional testing, which yielded the same results. On Dec. 13, 2000, Mr. 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.