A Fort Worth man has spent 21 years behind bars for a crime he says he didn't commit. Now he may get a chance to prove it.
But his appeal rests on a very small amount of DNA evidence and prosecutors are making the case that overturning his conviction on that basis would set a dangerous example.
NBC5 sat down for an exclusive interview with the man fighting to clear his name.
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Behind the barbed wire of the Terrell Unit state prison near Houston, there is a lot of time to think.
"I could have been here, I could have done that," said inmate Johnnie Dunning. "There's so many things I could have done, but I was here for something I didn't do."
Dunning is there for a terrible crime, raping a mentally-challenged 12-year-old boy back in 1996 in the laundry room of the Taj Mahal Apartments in West Fort Worth.
Prosecutors say the boy told family members Dunning did it and picked him out of a photo line-up.
"I don't know who he was at all," Dunning said. "How he picked me out of the lineup, I don't know."
Dunning initially pled not guilty. But on the morning of the trial, his defense cratered when the judge disallowed key evidence about the victim's stepfather, a three-time convicted child sex offender.
Dunning, who already had two felonies on his record for credit card abuse, says he feared getting a life sentence for a third strike. So, on his lawyer’s advice, he took a deal: the minimum sentence of 25 years for a guilty plea.
"I pled guilty because I knew that somewhere down the line I would have the appeal process and I would be exonerated," Dunning said.
But years of appeals were denied until last month when the 2nd Court of Appeals said Dunning should get a new trial, based on previously-untested DNA from the victim's shorts.
Dunning's new attorney, Bill Ray, believes the DNA clears him. It doesn't match his client.
"There were at least two people's DNA on there,” Ray said. “Of course one of them is going to be the victim's, and the other one is not Johnnie Dunning. That seems pretty clear."
But the Tarrant County District Attorney's Office argues the DNA evidence isn't strong enough. An expert testified it was "trace levels" that could have come "from all sorts of sources."
Dr. Roxanne Zascavage is an assistant professor in UT Arlington's Criminology and Criminal Justice Department, with a focus on forensic DNA analysis. She was not involved in Dunning's case but says relying on trace DNA can be risky.
"There are so many things you don't know,” said Dr. Zascavage. “It can say that an individual has touched this desk. It cannot say whether they touched it today or whether they touched it three years ago."
And it leaves other open questions.
"You pick up my DNA and it shows that I've been here. Just because I didn't pick up yours doesn't mean that you weren't," said Dr. Zascavage.
By now Dunning has served close to his full sentence, 21 out of 25 years behind bars. He's been up for parole but says he didn't want to take it because it would have meant confessing again.
"I pled guilty for something I didn't do, strike one,” Dunning said. “I'm not gonna put strike two, strike three on me."
Dunning may well finish his sentence before the appeals process is done, but he says he'll never stop fighting to clear his name, and he had a message for the victim of that terrible crime 21 years ago.
"I'm sorry about the hurt that you went through,” Dunning said. “I’m sorry that someone violated you and I feel for you but I'm so sorry, I didn't do that to you."
The Tarrant County District Attorney's Office declined an interview because the case is still ongoing. They are preparing to appeal to a higher court.
As for that "trace DNA evidence" there was so little of it, it doesn't meet the scientific standards to be ‘reliably compared’ to any other potential suspects. Essentially, experts say, it couldn't be used to convict someone else.