Original Article DNA Tests Come to Prisoner's Defense By ABBY GOODNOUGH and TERRY AGUAYO Published: August 3, 2005 MIAMI, Aug. 2 - Luis Diaz says he was never a rapist. So do his children, former wife and colleagues. But in 1980, eight assault victims swore otherwise, and that was enough to send Mr. Diaz, a fry cook and father of three, to prison for life. Skip to next paragraph Alex Quesada for The New York Times Luis Diaz, 67, said of his potential release from prison today, "I hope it's a reality and not an illusion." At left, Mr. Diaz in the 70's with his wife, Caridad, and their children, from left, Jose, Marilyn and Alberto. Luis and Caridad Diaz with their children, from left, Jose, Marilyn and Alberto, in the mid-70's. Mr. Diaz's family has maintained his innocence. On Wednesday, Miami-Dade prosecutors say they will ask a state judge to vacate his convictions and sentences based on DNA evidence that was not available 25 years ago. The prosecutors say that they are not convinced that he is innocent of all the crimes he was imprisoned for, but that it is too late to retry him successfully. Lawyers for Mr. Diaz, now 67, say that his case is the best evidence yet that witnesses can make devastating mistakes, and that such testimony, however earnest and convincing, cannot be trusted. Mr. Diaz's ordeal began on a summer day in 1977, when a teenage gas station attendant took his license plate number and called the police, saying he was the man who abducted and raped her a few nights earlier. Lacking enough evidence to charge Mr. Diaz, who had no prior record, the police let him go. But similar attacks followed, and a cloud settled over Mr. Diaz, a Cuban immigrant whose wife usually picked him up from work at 11 p.m. He was arrested in 1979 after another rape victim picked him out of a photo spread. Six more victims of rape or attempted rape then identified him in lineups, seemingly ending the mystery of the so-called Bird Road Rapist, named for the street in Miami where many of the assaults took place. At his trial in 1980, Mr. Diaz wept. His restaurant co-workers swore that he was innocent. Jurors did not deliberate long before convicting Mr. Diaz, then 41, of seven attacks. Barry Scheck, co-founder of the Innocence Project, a nonprofit group that fights for DNA exonerations, said most - about 120 of 160 exonerations since the advent of forensic DNA testing in 1989 - hinged on mistaken witness identification. But none involved as many mistaken witnesses as the Diaz case, he said. "It's a landmark case for that reason," Mr. Scheck said. "These were crimes that upset people in the community, there was pressure to solve them, and there were, I think, unfortunate eyewitness techniques used that, in light of what we know now, were the kind that lead to error." Mr. Scheck and Colin Starger, Mr. Diaz's lawyer at the Innocence Project, said they would use the case to push for new police techniques that a few states and localities, including New Jersey, North Carolina and Boston, have adopted to promising effect. One changes the way lineups are conducted, moving out suspects one at a time instead of all at once. The idea, researchers say, is to reduce the chance of falsely identifying someone who simply resembles the perpetrator more than anyone else in the lineup. Another change involves putting an officer who knows nothing about the case in charge of a lineup or photo spread, so that the officer cannot influence the witness. The Bird Road Rapist - if he was indeed one man, as the police originally believed - preyed on young women driving after midnight. The attacker would persuade them to pull over by flashing his headlights, force them into his car at gunpoint and make them perform oral sex while he drove away from the abduction spot. The assaults usually ended in rape. Mr. Diaz was a problematic suspect from the start. He stood 5-foot-3 and weighed 134 pounds - much shorter and lighter than the assailant that most witnesses described. While most described their attacker as speaking vulgarity-laced English with a Spanish accent - and detectives said Mr. Diaz had answered questions in English - his restaurant co-workers swore that he barely spoke a word of the language. They also testified that he reeked of grease and onions at night after working long shifts behind the grill. But no victim recalled such a smell. After Mr. Diaz was convicted, the judge said, "I've never seen a case where I was more convinced of a man's guilt." But later, after Mr. Diaz had served more than a decade behind bars, two of the victims decided he was not their attacker after all. They recanted their testimony in 1993, after a private investigator raised doubts about Mr. Diaz's guilt and the television program "Unsolved Mysteries" broadcast an episode on the case. One victim, whose identification of Mr. Diaz led to his arrest, said she had originally thought none of the men in the nine photographs she was shown resembled her attacker. She had asked to see more pictures, she said, but settled on Mr. Diaz after the police twice told her to keep looking at the first batch. He was the only one who remotely looked like the attacker, she said. "They told me to look closer at the ones I had," she told a state prosecutor in 1993, adding that the police were watching her study the photos "almost like people holding their breath." This victim said she grew more convinced that Mr. Diaz was her attacker when she "shook like a leaf" upon seeing him in a live lineup. "All these girls couldn't be wrong, the detectives couldn't be wrong, it couldn't go this far," she recalled thinking. After the recantations, Mr. Diaz's lawyers filed a motion in 1994 to vacate his convictions. In 2001, prosecutors agreed to vacate the convictions involving the two victims who recanted, and Mr. Diaz became eligible for parole. But it was denied. Katherine Fernandez Rundle, the Miami-Dade state attorney, said the fact that DNA absolved Mr. Diaz of one crime did not necessarily absolve him of the rest. The state could attempt to retry him on the other cases, Ms. Rundle said, but some victims do not want to testify again, some cannot be found, and the evidence absolving him of one rape could be introduced by the defense. "When you put all that together, the state cannot stand up in court and say we can retry this case," she said. "But, and this is so imperative, that's not to say he's innocent on all these other cases. Those victims believe in their identification and we believe in the witnesses, and the last thing we want to do is send a discouraging message to women out there who may be witnesses in rape cases." Mr. Diaz's son Jose, who said he was 13 when the police took his father away in the middle of the night, read an article about DNA exonerations in 1998 and became determined to get his father tested. Only two evidence samples remained: one from a victim who identified Mr. Diaz but later recanted, and another from a victim who was attacked around the same time but never brought charges. The testing found that one man committed both rapes, according to the Innocence Project, but he was not Mr. Diaz. Virginia Snyder, the private investigator whose queries helped refocus attention on the case in the 1990's, said she believed a small gang of criminals, not one man, committed the rapes. Some of the victims originally described their attacker as a white man with no accent, and the height estimates ranged from 5-foot-6 to 6-foot-2. In a prison interview on Tuesday, Mr. Diaz said that he had spent much of his 25 years in prison reading the Bible and that he hoped to get to know his grandchildren if he was released. His wife has remarried, and he wants to move in with his oldest son. "I hope it's a reality and not an illusion," he said. "All this time has gone by fast to a certain extent. I've learned to live with it, but I've always wanted to be free."