The rape occurred in July 1975, around 4:30 a.m., at an apartment in Reston, Va. A woman told police that she was awoken by a man standing next to her bed with a flashlight, and that she presumed he entered and left the apartment through an unlocked balcony door. She did not get a good look at her attacker in the dark but helped the police create a composite sketch of him. Two months later, Fairfax County police received a tip that Scott might be the assailant. Detectives placed his photo in a lineup, and the victim picked him out. At trial, she again identified Scott in the courtroom.
Investigators recovered semen from the victim’s body and jeans she wore after the attack. But in 1975 all that could be determined from the semen was a blood type. A test found it was “Type A” blood. Scott was “Type O.” But the state crime lab did a second test later in 1975 and determined the semen was “Type O” — the same type as Scott. A state forensic expert said the first test might have been contaminated by bacteria, necessitating a second test. The defense argued that the first test proved Scott was innocent.
Scott was 19 years old in July 1975. He took the witness stand at his trial in January 1976 and testified that he had helped a friend paint a house belonging to the friend’s parents, spent the night there, then woke up the next morning and resumed painting the house. The house was more than four miles from the victim’s apartment, and Scott did not have a car. The friend and both of his parents corroborated Scott’s story at trial.
A Fairfax jury convicted Scott and sentenced him to 13 years for rape and carnal knowledge, and one year for burglary. He was paroled after serving four years and seven months.
Then, in 2016, Scott received a letter from Virginia. The state had begun a program in 2005 to retest biological evidence from criminal cases tried between 1973 and 1988, using DNA testing that was not available then. Virginia had developed a DNA profile from the semen, but it was not able to develop a profile for Scott from the saliva sample he had submitted in 1975.
Scott would have to supply his own DNA for a new comparison. Scott contacted the Innocence Project in 2016 and provided his DNA to Fairfax County police. The retesting concluded that “Scott is eliminated as a contributor of the DNA profiles” from semen found by investigators in 1975, according to the Supreme Court order in the case.
Even so, the Virginia attorney general’s office opposed Scott’s motion to vacate the conviction. The attorney general argued that the victim may have put on clothing from her dirty laundry after the rape, that there was a shared laundry room in her building and that semen could have been transferred in the laundry, or that the differing blood tests may have been proof the sample was contaminated. The Supreme Court rejected these arguments. A spokesman for Attorney General Mark R. Herring declined to comment on the case.
“Scott has proved,” Justice S. Bernard Goodwyn wrote for the court in the March 7 opinion, “by clear and convincing evidence ... that no rational trier of fact would have found him guilty beyond a reasonable doubt in that he has been scientifically proven by DNA analysis to not be the source of the sperm found on the victim’s jeans or the male DNA found on the vaginal swab obtained from the victim.”
Scott is currently hospitalized and was unavailable for comment, his lawyers said. He told the Richmond Times-Dispatch’s Frank Green recently that "It’s been 44 years since I’ve been trying to do this. I told them when this all started I didn’t do it ... I had everything planned out. I was going to go in the Navy. I was going to get married. I was going to be a dental technologist ... But with a conviction like that, things don’t work that way.”
“It ruined my life,” he said.
“With respect to eyewitness identification,” Armbrust said, “we didn’t know then what we know now” about its unreliability. “In 1975, that did not involve the same skepticism we have now.” She noted that cross-racial identification — Scott is black, while the victim is white — “is less likely to be accurate than same-race IDs. And we had blood typing, but it wasn’t conclusive. You have those three things coming together, and it’s not so surprising that he got convicted.”
The Fairfax police re-interviewed the victim in 2017 and she described picking Scott out of the photo lineup. “I was never 100 percent sure of my recognition potential,” she told the police. “But, I said, what if I were to say which one of these people, if I had to pick one of these photos ... it would be this person.” She added, “I knew that they had somebody that they, you know, had some suspicions about and that I presumed that one of the photos was of that person.”
Armbrust said, “We know that certainty [of suspect identification] at trial doesn’t correlate with accuracy, but juries believe it does. Certainty at the time of identification is much more important.”