What if your twin commits a crime...

Lawyers focus on past behavior instead of DNA in twin rape case
By Denise Lavoie, AP Legal Affairs Writer | March 21, 2006

BOSTON --A jury began deliberating Tuesday in the third trial of an identical twin who won two earlier mistrials because jurors would not convict him based on DNA evidence that could have come from either him or his brother.

During closing arguments, a prosecutor urged jurors to focus not on the DNA evidence, but instead on Darrin Fernandez's "criminal signature" to distinguish him from his twin.

Two earlier trials for Fernandez, 31, ended with deadlocked juries who failed to convict him because his brother, Damien, has the same genetic profile, and semen found at the rape scene could have come from either brother.

Defense attorney Robert Zanello told jurors that police focused on Darrin as a suspect in the April 2001 rape of a Boston woman after his brother wrote them a letter proclaiming his innocence and offering to cooperate.

He said the DNA evidence -- semen left on the rape victim's pillowcase -- could have come from either twin. "There's no getting around it," Zanello said.

Assistant District Attorney David Deakin urged jurors to look at Darrin Fernandez's "pattern of behavior" in another rape he was convicted of, as well as a series of break-ins and attempted assaults he was not charged in, to find him guilty. But Zanello told jurors Damien Fernandez also has a criminal record, including an assault and battery on a police officer, and has used his brother's driver's license in the past to impersonate him.

"He's got a pattern of behavior, a pattern of behavior that includes a criminal history and a history of deceit," said Zanello.

But Deakin focused on the similarities between the rape Darrin Fernandez was convicted of and the rape he is now on trial for, saying he left a "criminal signature" that "will identify him more surely in this case than his DNA."

In both cases, the assailant broke into homes in Dorchester and attacked the victims while they were asleep. Both victims testified that the man who attacked them engaged in sweet talk or sexual banter beforehand, as if he was a boyfriend and not an attacker.

Fernandez was charged in both rapes after he was arrested in July 2001 while he allegedly tried to break into an apartment in Dorchester. Police matched the DNA in blood found on broken glass at the scene of the break-in to DNA in semen found at the two rape scenes.

Deakin also focused on an attempted assault the same night of the April 27, 2001, rape Fernandez is on trial for now. In that case, the woman, who was also asleep, screamed and scared away her attacker, but not before he engaged in a similar kind of sexual banter he had with the other two victims, Deakin said.

Deakin also tried to distinguish Darrin Fernandez from his twin in other ways, reminding the jury that Damien Fernandez spoke with a lisp, while Darrin Fernandez did not. He noted that the two rape victims and the woman who scared off her attacker said their assailant spoke clearly.

But Zanello downplayed the other crimes and said police only focused on Darrin Fernandez after his brother, Damien, sent them a letter suggesting, as Zanello put it, "Don't look in my direction. Look at my brother."

Zanello also reminded the jury that Damien Fernandez testified that he could not remember where he was the night of the April 2001 rape. He said he was living in Brockton, about 25 miles south of Boston, at the time and seldom visited.

The jury began deliberating at about 2 p.m. Tuesday.

Darrin Fernandez is currently serving a 10- to 15-year prison term in the August 2000 rape.

In his two earlier trials in the April 2001 rape, prosecutors did not seek to introduce evidence of his prior rape conviction, saying they did not want to put that victim through the trauma of testifying again. But this time, they did call the victim to the stand to describe the circumstances of her rape, which prosecutors then used to try to show a pattern by Fernandez.

 

Holy crap! Again I agree with Daniel!