Mark Denny, 46, has been incarcerated since 1988 for a disturbing crime that happened inside a Burger King restaurant on December 20, 1987.
A group of young men, at least one of whom displaying a gun, forced their way into the restaurant after closing and robbed $3,000 from the safe. They then ordered the 18-year-old victim and a male coworker to undress, took the woman to another room and repeatedly raped and sodomized her.
The victim had a cloth over her eyes for portions of the attack and may have passed out at some point.
Acting Brooklyn District Attorney Eric Gonzalez said a careful analysis of the multiple accounts given by the victim following the horrific attack, an unreliable identification procedure, statements by Denny's three co-defendants and an examination of the rest of the evidence all led to the decision to dismiss the indictment.
"Expert analysis of his identification, an examination of the rest of the evidence and multiple accounts from witnesses and co-defendants all indicate that he was not present when this terrible crime was committed," Gonzalez said. "The false identification was not the fault of the courageous victim or law enforcement personnel, but happened because little was known back then about memory retention and retrieval, and their effect on eyewitness identification."
Today Mark Denny is a free man after spending nearly 30 yrs in prison for crimes he did not commit. Authorities vacate the conviction and dismiss the indictment. More later on @ABC7NY #Brooklyn pic.twitter.com/HAPqIPU5mX— Kemberly Richardson (@kemrichardson7) December 20, 2017
The investigation revealed that the victim had given a total of 10 statements between the initial 911 call and her trial testimony, recalling between three and four assailants. Her co-worker recalled three assailants. Denny became a suspect in March 1988 after getting arrested two months earlier for gun possession while in a car with the three co-defendants, who were wanted for robbing a Manhattan Burger King. The victim of the Brooklyn rape was shown a photo array and did not identify Denny, but two days later, she did identify him in a lineup.
At trial, her testimony was vague regarding his description and actions.
Dr. Jennifer Dysart, an Associate Professor of Psychology at John Jay College of Criminal Justice who specializes in studying the reliability of eyewitness identifications, was retained by the Brooklyn District Attorney's Office to review this case. She noted that, according to the Innocence Project, there have been mistaken eyewitness identifications in approximately 72 percent of DNA exonerations, and she pointed to numerous factors in this case "that have been shown to affect witness accuracy."
Those include the victim's limited opportunity to see the perpetrators, the existence of a weapon, the extreme stressfulness of the attack, the delay between the incident and the identification procedures, the possibility of unconsciousness transference (Denny's description didn't match any of the suspects but did match the victim's co-worker) and the fact that the victim saw Denny in an array before identifying him in a lineup, making that procedure highly suggestive.
"The combination (of) all these factors significantly decreased the likelihood that an accurate identification could have been made by victim in this case," Dysart said.
In addition, the investigation found that while no corroborating evidence exists with respect to Denny. Fingerprints of two other suspects were recovered from the restaurant, and the third suspect admitted his involvement upon pleading guilty. That defendant, Eddie Veira, was sentenced to seven to 21 years in prison.
A jury convicted a second defendant, Raphael James, of rape, robbery and related counts and he was sentenced to 16 to 48 years, getting paroled in 2015. The judge severed the third defendant's case due to a scheduling conflict, and because the victim was emotionally unable to testify in a second trial, the case against him had to be dismissed.
Denny, who stood trial with James, was convicted in 1989 of rape, robbery and related counts and received an aggregate term of 19 to 57 years in prison. He had maintained his innocence through multiple parole hearings and had refused to participate in a sex offender program, a decision that likely impeded his parole chances. He was finally granted parole in October 2017, but a release date has not been set.
Authorities say James, who has been writing letters on Denny's behalf since the 1990s, stated that Denny was not involved in the crime. The co-defendant whose case was dismissed reportedly admitted his culpability and credibly claimed that Denny was not present. Veira, the only person who had implicated Denny, had been deported after completing his sentence and could not be located. In his parole interviews, he mentioned only two cohorts.