.jpg) Ben Salazar (Photo/Innocence Project) On November 20, 1997, Ben Salazar was pardoned by then-governor George W. Bush after DNA testing proved that he was wrongfully convicted of the aggravated sexual assault of a pregnant woman in 1991.
The Crime
On June 1, 1991, a man broke through a latched screen door of the victim’s home in Austin, Texas. He raped the victim, who was three months pregnant at the time. She was able to view him for a few minutes in her well lighted living room.
The Identification
The victim picked Salazar’s photograph from one of several albums of photographs at the Austin Police Department. The victim also identified Salazar’s tattoo as matching the tattoo of the perpetrator. The perpetrator also smoked the same brand of cigarettes as Salazar. Based on the identification, Salazar was arrested in October 1991 and was charged with aggravated rape. At his trial, Salazar’s wife testified in support of his alibi.
He was convicted in April 1992 of aggravated sexual assault and sentenced to 30 years in prison.
The Biological Evidence
Seminal fluid was detected on items in the rape kit taken from the victim and submitted for serological testing. The victim’s husband was eliminated as a contributor of the semen, but Salazar could not be excluded. At trial, the serological evidence was said to include only two percent of the general population and only one percent of the Hispanic population. This percentage was misleading because it did not account for all of the substances or antigens detected (A, B, and O).
Post-Conviction
In December 1994, Salazar’s attorneys, David Schulman and Karyl Krug, secured a court order to preserve the evidence. The Department of Public Safety was unable to locate the evidence at that time. The evidence was eventually found in October 1996 in a freezer. In February 1997, an order for testing was granted and the evidence was sent to GeneScreen, a private laboratory in Dallas, Texas.
GeneScreen performed PCR based DQ Alpha and polymarker testing on the evidence. Salazar was excluded as the donor of the spermatozoa found. Because the victim, her husband, and Salazar had the same DQ Alpha profile and there were some complications with the testing, the Travis County District Attorney’s Office decided to perform further testing.
In October 1997, the Department of Public Safety tested the vaginal swabs using PCR based testing at two markers. The results of the first test were confirmed - Salazar could not have been the donor of the semen. Based on these results, Salazar was released on bond on October 27, 1997.
A third round of testing was performed, this time with a new reference sample from Salazar to prevent any claims of evidence tampering while the evidence was “lost.” Salazar’s conviction was overturned on October 30, 1997, after the third round of exculpatory testing was concluded.
Following the recommendation of the Texas Board of Pardons and Paroles, then governor George W. Bush pardoned Salazar on November 20, 1997. Salazar had spent over five years in prison for a crime he did not commit. He was awarded $25,000 in state compensation plus an annunity of $2,200.
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