Court denies district attorney‘s bid to halt new trial for man in prison for 21 years

The Tarrant County district attorney‘s office fought an appeals court ruling that gave a man a new trial based on previously untested DNA evidence and lost.

But this fight may not be over.

Johnnie Dunning, a 57-year-old man who has been imprisoned for more than 21 years, confessed to sexually assaulting a 12-year-old mentally challenged deaf boy, in 1996. The victim picked Dunning out of a photo line-up and told police that a “black man raped me.”

In return for his guilty plea, Dunning received a 25 year prison sentence and a chance to appeal the ruling, court documents showed.

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After reviewing his case, the appeals court ruled on March 1 that Dunning deserved a new trial. The court found that DNA from a third party and from the victim were found in a biological sample taken from the victim‘s shorts. Dunning‘s DNA was absent from the sample, the appeals court opinion said.

The state asked the appeals court to reconsider its decision in the case on March 16 and on Thursday the court denied the request. The Tarrant County district attorney‘s office has 30 days from Thursday to file a petition for discretionary review with the Court of Criminal Appeals in Austin, the highest criminal court in Texas.

It is not clear whether Tarrant County prosecutors will take that next step.

Dunning‘s attorney argued that the boy‘s stepfather, a man named Lorne Clark, who had been convicted of sexual assault of a child in two other Tarrant County cases, was a possible suspect in this case and could have possibly coached the victim to identify Dunning.

Lorne Clark, a convicted sex offender in Arkansas and Texas, was identified by Johnnie Dunning‘s defense attorney as the probable assailant in the rape of a 12-year-old boy, but a judge prevented that evidence from being produced at trial. Courtesy Tarrant County Sheriff‘s Department

Dunning is black and Clark is white.

The appeals court also stated in its ruling that the judge in Dunning‘s case would not allow evidence that Clark might be a suspect to be presented. Dunning would not have pleaded guilty had his attorney been allowed to make that case, the appeals court ruling said.

But in the motion for the rehearing that the state made to the appeals court, prosecutors argued that the victim told at least two other people he had been sexually assaulted by a black man. Prosecutors also argued that the court did not give enough weight to experts who testified that it was dangerous to assume the DNA discovered in the victim‘s shorts might belong to the person who raped the victim.

It is possible that the biological material that was found was transferred to the shorts prior to the sexual assault, according to the state‘s motion.

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Additionally, the biological sample was so minor, it was impossible to tell with any certainty that the DNA came from males, the state said.

The appeals court also overlooked evidence that the victim told a family friend about the assault before telling his stepfather about the assault, the motion said.

Mitch Mitchell: ,