Double rape suspect freed from jail because he has an identical twin - but he could still face charges

Suffolk County prosecutors have temporarily dropped rape charges against a man they accused of attacking two women in Forest Hills and Mission Hill nearly ten years ago - but only so that they can re-test his DNA to rule out the chance his identical twin was actually the attacker.

Dwayne McNair was nearing his trial date for on charges he pistol whipped and raped women in Forest Hills and Mission Hill in September, 2004 when prosecutors asked a Suffolk Superior Court judge to delay the trial so that they could use a new type of DNA test that its German manufacturer says can differentiate between identical twins.

However, Superior Court Judge Christine McEvoy said the delay would deprive McNair of a fair and speedy trial.

Prosecutors then submitted a nolle prosequi filing, in which they dropped the charges against McNair - letting him walk out of custody. But in their filing, the DA's office said it will re-file the charges against McNair if the test - which could take ten weeks to complete - shows DNA found on his victims was his.

In addition to the DNA evidence, prosecutors are also counting on testimony from a second man charged in the attacks, who accepted a plea deal and agreed to testify against McNair, whom he says he can readily tell apart from his brother.

Innocent, etc.

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Comments

Yet another stupid Massachusetts judge

The DNA showed it was one of two possible people -- and an accomplice implicated both himself and ONE of those two people. As a general rule, that should be plenty of evidence -- unless there is some evidence to suggest the accomplice is lying.

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What's right, and what's

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What's right, and what's lawful are orthogonal. This was a deliberate dropping of charges by the prosecutors (note: not the judge) so that they could refile the charges after the DNA that could prove which twin did it (it exists, apparently) could come back from the lab. This supposedly takes months longer than a standard DNA test.

But you think that what, the judge should keep the guy in jail on no one's sayso?

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I'm from Oklahoma, and it's

I'm from Oklahoma, and it's darkly funny to see people - be they commenters here or Facebook friends from back home - throwing basic legal principles out the window because the perpetrator is seen as being really really bad. I see a lot of Internet dwellers suggesting that both people should be in jail, reasoning that both brothers are probably guilty of at least something anyway. It would be jaw-dropping if you didn't see it so much.

Likewise, it's apparently okay for Oklahoma to torture somebody to death if the torture was accidental and the guy was really really bad. It does not matter that the means of death is a state secret.

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I think the story changed a bit...

... I got the impression that the judge was more involved in pushing this dismissal. But my basic point was that this is not a case that rests primarily on DNA evidence, it is one that relies on an accomplice's confession, which is _already_ supported by DNA corroboration. Unless one can show the accomplice doesn't know which twin was involved in the crime with him, is there any real doubt which twin is the one which ought to be tried?

(Originally from Tulsa)

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Identical Twin Identity Games

Some identical twins fully exploit the confusion between them - some to humorous and practical ends, some to nefarious ends. That's why witnesses who would swear up and down in court that "I was with TwinA and not TwinB" might break down under cross examination if they didn't know either of them well enough to say how, exactly, they knew who they were with (e.g. Barbara is left handed, Brenda is right handed; George has a Celtic armband tattoo, Gerry has a rose tattooed on his shoulder).

These sorts of identity games aren't limited to school kids fooling teachers. Adult twins do this stuff, too - like a friend of mine who was out of town when his driver's license was expiring sent his identical twin to renew it. I can tell them apart, but an RMV clerk has no chance.

I suspect that the Prosecutor realized that it was going to be difficult to get a jury to convict this guy on DNA evidence and testimony from people who might not be able to tell the two apart or name how they knew they were with one twin and not the other.

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Is there any actual evidence

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to support the claim that the twin did it instead of the suspect? That should be the standard for dropping the charges and ordering the DNA test, not because a clever defense attorney figured a sleazy way to delay the inevitable for his client.

No, not at all

Accomplice testimony points to only one of the twins. Even without DNA evidence, there is a pretty strong basis for charging one twin rather than the other.

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Shadow of a doubt

First of all, the judge didn't free anybody - the prosecutor realized that the existence of an identical twin meant they could not go to trial with the evidence that they had at hand. Not if they wanted a jury or a judge to find the guy guilty, that is.

The justice system worked just fine here - and, thanks to science, there's a good chance that they will be able to absolutely verify that this twin and not the other was responsible.

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Um, actually...

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This summary of the story is inaccurate. The man was not released because DNA tests could not prove that the man's identical twin wasn't the culprit. The man was released when prosecutors filed a legal document called a nolle prosequi, terminating the case.

The reason prosecutors elected to do this was in order to pursue a novel form of DNA testing (that may be able to rule out the brother) after a judge refused to continue a longstanding trial date.

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I'm not worried

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According to a Mass.Gov tweet tonight, sexual assault is always avoidable!

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Long, expensive road ahead

I'm assuming that taxpayers are footing the bill for a public defender. Now, use a brand new testing technology with virtually no history of use in trials, and the case becomes a trial of the new CSI technology. This is ripe for cable news stories, an episode of the CSI TV show, or a movie with technology angle on top of the evil twin story.

Another thought would to ask each twin where he was on the nights of the crimes. It was so long ago, neither can probably remember, otherwise that would indicate the one without alibi did it, the evil twin.

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So

You would rather this guy be freed from the legal system and case dropped?

That is the only alternative reality. If the DNA test works out, this case may plea out, which saves a lot of money, too. Technical analysis is way cheaper than courts and DA time.

I would like to add that

I would like to add that since a jury have to operate on reasonable doubt. A jury don't have to believe the defendant, just doubtful enough to choose to acquit. It's quite hard to argue beyond it if the twin just keep saying "the friend mistaken me for my brother!" and "I was actually the guy at the alibi location". A jury not believe him, but it might just provide just enough doubt. It would look even worse if the new tests works, but he can stay free because of double jeopardy.