Prosecutor’s evidence at trial. The prosecution based its case on several points:

• The victim identified Kotler from a group of 500 photographs.

• The victim’s identified Kotler by sight and voice from a police lineup.

• County laboratory tests showed that Kotler had three non-DNA genetic

markers (ABO, PGM, and GLO) that matched those of the semen stain left

on the victim’s underpants.

Postconviction challenges. Kotler brought a pro se motion to set aside the jury verdict prior to sentencing. In the motion, he alleged prosecutorial misconduct and deficiencies in the court’s jury charge. The motion was denied on December 2, 1983.

In 1986 Kotler made a direct appeal to the Appellate Division. Among his claims in the appeal: erroneous admission of testimony, insufficient evidence to convict, and excessive sentencing. The judgment of conviction was affirmed on March 3, 1986.

On March 10, 1987, Kotler brought to the court a second motion to set aside the conviction. He based his motion on false testimony by a police detective, concealment of evidence, and improper cross-examination of Kotler regarding his prior criminal charges. This motion was denied on July 7, 1988. The court, however, ordered a hearing on whether certain documents had been concealed from the defense prior to trial. On January 8, 1990, after the hearing, the county court again denied Kotler’s motion.

Upon hearing about DNA tests in September 1988, Kotler contacted the Legal Aid Society and asked for assistance in getting the tests performed. He secured funds from his father, and on February 15, 1989, the rape kit, the victim’s underwear, and blood from the victim and Kotler were sent to Lifecodes, Inc. It found an insufficient amount of DNA for testing and returned the evidence. Another legal aid attorney, however, heard about Kotler’s case and advised him to try Forensic Science Associates (FSA) in California.

DNA results. In February 1990 all the evidence was sent to FSA. A PCR test showed that Kotler was not the source of the semen. The prosecution, however, posited that since DNA from both Kotler and the underwear yielded a similar allele, part of the semen could have come from a consensual partner and another part from Kotler.

Tests were then conducted by the Center for Blood Research (CBR) in Boston. They showed the same results as the first test. The defense then asked for a blood sample from the husband of the victim because he was the only sex partner the victim claimed to have had prior to the rape. After a sample from the husband was received by both laboratories, tests showed that he was also not the source of the semen. These results showed that the semen in the victim’s underpants could not have come from either Kotler or the victim’s husband. Both FSA and CBR issued a joint statement to the Suffolk County Court attesting to these facts on November 24, 1992 (see appendix for results).

Conclusion. On March 10, 1992, Kotler’s attorneys filed a memorandum of law in support of Kotler’s motion to vacate judgment. Their brief referred to the results of the original DNA tests as well as to the withholding of evidence by the prosecution, which included police reports showing that the victim’s description differed from Kotler in age, height, and weight and that the victim’s identification of Kotler was a “look-alike,” not a positive identification. The district attorney’s office filed a memo of opposition to vacate the conviction.

After the defense attorneys received the results of the final DNA tests, they went to the judge, who ordered a hearing on the results. The prosecution then agreed to issue a joint statement with Kotler’s lawyers to vacate the conviction. The Court of Suffolk County ruled to vacate the conviction on December 1, 1992, and ordered Kotler to be released on his own recognizance.