Innocence Project client Perry Lott exonerated on Oct. 10, 2023 in Ada, Oklahoma. Credit: September Bottoms/Innocence Project
On Tuesday, Perry Lott was exonerated in Ada, Oklahoma, after 35 years of wrongful conviction and 30 years of incarceration for a 1987 rape and burglary. Post-conviction DNA testing performed in 2014 from the survivor’s rape kit proved Lott did not commit this crime. The State’s case rested entirely on the survivors’ identification of Lott, which was based on a suggestive police lineup. No physical evidence connected Lott to the crime, and he did not match the physical description of the perpetrator.
Lott filed a motion to vacate his conviction in 2018 based on these exonerating DNA results and the problematic identification, but former District Attorney Paul Smith opposed the motion. Instead, on the eve of Lott’s evidentiary hearing, DA Smith offered only to modify Lott’s sentence — an offer Lott ultimately accepted on July 9, 2018. In doing so, Lott was freed immediately and avoided the uncertainty of an extended incarceration while his motion to vacate was litigated.
In 2023, the Innocence Project approached newly elected District Attorney Erik Johnson and asked him to vacate Lott’s conviction based on the exonerating evidence. DA Johnson undertook a thorough review of the case and concluded that post-conviction DNA test results were “favorable” to Lott, and his conviction should be vacated.
“Lott has shown nothing but persistence and resilience in his 35-year-long pursuit of justice. He would not give up on proving his innocence. Five years ago, all evidence pointed to his innocence, but he was denied justice. We are grateful to District Attorney Erik Johnson for his commitment to righting this wrong,” said Innocence Project Senior Staff Attorney Adnan Sultan.
“I have never lost hope that this day would come,” said Lott. “I had faith that the truth would prevail — even after 35 long years. I am grateful to everyone who supported me and helped in my fight for freedom. I can finally shut this door and move on with my life.”
“Former District Attorney Smith’s opposition to the irrefutable evidence of Lott’s innocence was a blatant miscarriage of justice,” said Barry Scheck, Innocence Project’s co-founder and special counsel. “This unwillingness to acknowledge the truth in addition to the systemic factors at play in Lott’s wrongful conviction cost him 35 precious years — and have plagued other wrongful conviction cases in Ada for decades.”
A Suggestive Lineup Leads to a Misidentification
On Nov. 2, 1987, a woman received three anonymous calls at her home and one at the restaurant where she worked. Answering the fourth call to the restaurant around 7:15 p.m. a male voice on the phone told her there was a bomb in the restaurant that was going to explode at 7:30 p.m. The woman cleared the premises and then called the police who did not find a bomb.
At 1:15 a.m. the woman arrived home and, as she unlocked the door, felt a gun to her head. A man pushed her into her house, took $120 from her purse and raped her. After the attack, the survivor called police, who took her to Ada Hospital, where they collected a rape kit. At the hospital, the survivor, who is white, described her attacker as a Black male between 5’ 7” and 6′ 2” with a front partial gold tooth. The survivor couldn’t determine his hair length or body size because he was wearing a cap and a jacket, and, by her own admission, she was “not a good character judge” of physical build and was “a poor judge” of height.
Following the attack on November 4, while filming a Crime Stoppers reenactment video about the crime near the survivor’s home, Detectives Mike Baskin and Jeff Crosby noticed “a Black guy parked on 15th Street.” Detective Crosby approached the car, spoke with the man—who was later identified as Lott—and noted he had a gold tooth. When questioned about his whereabouts during the crime, Lott explained that he had been with his fiancée the night before, from 3:30 p.m. until 6:30 a.m. the next morning when he left for work. His fiancée confirmed his story. She also made clear that Lott, who did not have a phone at his own residence, did not make any calls on the day of the crime.
The next day, Lott agreed to join detectives at the Ada police station for further questioning and was placed in a lineup. None of the other men in the lineup had gold teeth but were given gold foil from a local flower shop to cover their teeth as a means of simulating the partial gold tooth described by the survivor. As a result, Lott was the only one in the lineup who could fully open his mouth because he did not have gold foil on his teeth. After about thirty minutes, the survivor identified Lott as her attacker, and police arrested him. Intentionally suggestive witness identifications like this one occur twice as frequently in the cases of Black and Latinx exonerees as they do in the cases of white exonerees, according to the National Registry of Exonerations (NRE).
In 2014, the survivor would tell an investigator that she was scared to pick the wrong man in the lineup and nothing specific made her choose Lott as the attacker.
Eyewitness misidentification is the leading contributing factor of wrongful convictions and has contributed to 64% of the Innocence Project’s 245 exonerations and releases. And cross racial identification, as in this case, is particularly challenging. The NRE’s report on Race and Wrongful Convictions in the United States 2022 found that 60% of sexual assault exonerees are Black, but less than a quarter of people in prison for sexual assault are Black. This suggests that Black people are almost 8 times more likely than white people to be falsely identified and convicted of sexual assault.
At trial, the State’s case rested entirely on the survivor’s identification of Lott as the perpetrator, despite a number of inconsistencies. The survivor described the perpetrator as clean-shaven, but Lott had a mustache. Police also acknowledged that he was the only person in the line-up without gold foil on his teeth. Regardless of Lott’s alibi, after one day, the jury convicted him of first-degree rape, second-degree burglary, and other related charges. He was sentenced to a term of 100 years. Lott unsuccessfully appealed his conviction.
DNA Testing Excluded Lott, Yet He Remained Incarcerated
During the post-conviction investigation, the Innocence Project ordered DNA testing of the rape kit. In 2014, Lott was excluded as the source of male genetic material found on the survivor’s vaginal swab. Despite the new scientific evidence proving Lott’s innocence, former DA Smith refused to vacate Lott’s conviction. In 2018, two days before Lott’s hearing, where this new evidence of innocence would have been presented, former DA Smith offered Lott a sentence modification that would guarantee his immediate release from prison, but the conviction would remain on his record. After DA Smith made this offer, and before Lott accepted it, Detective Crosby, the State’s main witness at the hearing, died by suicide – a fact DA Smith never disclosed to Lott, who then accepted the offer in order to be released from prison.
Lott lives in Oklahoma, where he is deeply involved in his local church. While incarcerated, Lott took part in the “faith and character” mentorship program and served as a guide for troubled youth in the prison system — work that he would like to continue. He is also an outstanding public speaker and has previously told his story before hundreds of people at numerous Innocence Network Conferences.
Lott is represented by Adnan Sultan, Innocence Project senior staff attorney; Barry Scheck, Innocence Project Co-founder and Special Counsel; and Joseph Norwood of Norwood Law in Tulsa, OK.
Republished courtesy of the Innocence Project