 Perry Lott (Photo: September Bottoms/Innocence Project)
At 1:15 a.m., on November 3, the woman arrived home. When she unlocked the door, a gun was put to her head, and she was pushed inside. A man took $180 cash from her and raped her. The woman, who was white, said her attacker’s voice sounded the same as the person who had made the calls. She was taken to the hospital where a rape kit was taken.
She said the man was Black, between 5 feet 7 inches and 6 feet two inches tall but admitted she was a poor judge of height and weight. She said he wore a cap and had a front tooth that was partially gold. She helped police prepare a composite sketch of the attacker that did not show any facial hair. She said the man was wearing gloves when he entered, but took them off and undid his pants. He then put on a condom, saying he was too smart to get caught.
Later that day, detectives Jeff Crosby and Mike Baskin were filming the home for a Crime Stoppers reenactment. They noticed 25-year-old Perry Lott sitting in a car nearby. Crosby spoke to Lott and noticed that Lott had a gold tooth. Questioned about where he was at the time of the crime, Lott said he had been with his fiancé the night before and remained there until 6:30 a.m. the following morning when he left for work. Lott’s fiancé confirmed that account. She also said Lott did not have a telephone at his home and that he did not make any calls while he was at her home.
Two days later, on November 5, Lott agreed to go to the Ada police station. There, he was placed in a lineup. Since none of the other men in the lineup had any gold teeth, the police obtained some gold foil from a local flower shop. The fillers used the foil to cover their teeth. As a result, Lott was the only person who was able to open his mouth fully—the others risked the foil falling out. After about 30 minutes, D.R. identified Lott as her attacker. Notably, Lott had a mustache, and D.R. had not described her attacker as having any facial hair.
Lott was charged with first-degree rape, second-degree burglary, robbery by fear, and using a telephone to make threats involving an incendiary device.
A pretrial motion to suppress the identification on the basis of being overly suggestive was denied.
In March 1988, Lott went to trial in Pontotoc County District Court. The prosecution’s case rested almost entirely on the testimony of D.R. She again identified Lott as her attacker. She admitted that during the lineup, each man smiled, some revealing a gold tooth, but others did not smile wide enough to see any teeth.
Detective Crosby testified about the lineup procedure and acknowledged that Lott was the only person in the lineup without gold foil.
There was no physical evidence linking Lott to the crime. An Oklahoma State Bureau of Investigation (OSBI) report was presented in evidence without testimony. According to the report, 17 items of evidence were submitted to the OSBI, including the rape kit, D.R.’s bed sheet and pillowcases, fingernail clippings, combed pubic hair, and head hair. The report said that the crime laboratory determined there was no seminal fluid on the vaginal swabs, a fingernail found in the bedsheets was “not consistent’ with fingernail samples from Lott or D.R.’s ex-husband, and that D.R.’s fingernail clippings were of an “insufficient length” for comparison to the fingernail found in the sheets. The combed public hair was described as “non-productive.”
Lott presented an alibi defense, testifying that he went to bed around 10 p.m. on November 2, and woke up around 6:45 a.m. on November 3. His fiancé, Antoinette Brown, testified that Lott was asleep when she came home around midnight, and he was in bed with her when she awoke at 6 a.m.
The prosecutor, Chris Rogers, conceded during his closing argument that “the other subjects in the lineup other than the defendant had a tooth that was entirely gold and the defendant in this case had a tooth that was partially gold.”
On March 10, 1988, the jury convicted Lott of first-degree rape, robbery by fear, second-degree burglary, and using a telephone to make threats involving an incendiary device. He was sentenced to 100 years each on the rape, robbery, and threatening convictions and 50 years on the burglary conviction. Judge Ronald Jones ordered the sentences to be served consecutively.
In 1991, the Oklahoma Court of Criminal Appeals upheld the convictions and sentence.
In May 2017, Karen Thompson and Barry Scheck, attorneys with the Innocence Project, filed a motion for post-conviction relief based on DNA testing. The testing of the vaginal swab showed a mixture of two male DNA profiles, neither of which belonged to Lott. In addition, Lott’s DNA was not found on any of the evidence recovered from the home or from D.R. “As this case involves a single-perpetrator rape and the victim had not had sex with anyone except for her ex-husband in the week before the attack, these results are dispositive as to the question of Mr. Lott’s innocence,” the motion declared.
The motion also sought to present evidence relating to the conditions of the attack which could have had an adverse effect on D.R.’s ability to make an accurate identification, including that D.R. was white and Lott was Black. Such cross-group identifications had been shown to have high error rates, the motion said.
Paul Smith, the district attorney for Oklahoma’s District 22, which encompasses Pontotoc, Hughes, and Seminole Counties, opposed the motion. “The ridiculous conclusion that simply because the male genetic material found on the victim’s vaginal swab is not that of the Petitioner and ‘thus he cannot be the perpetrator of these crimes’ is both non-sense [sic] and preposterous,” Smith said in a reply to the motion, underlining the next sentence for emphasis. “The assailant wore a condom and gloves during the attack!”
Smith suggested the male genetic material was from contamination by detectives or others handling the evidence.
Ultimately, Lott’s defense team was not allowed to present evidence about the frailties of eyewitness identification. In February 2018, Judge C. Steven Kessenger scheduled a hearing on the motion relating to the DNA testing for July 9, 2018.
Prior to the hearing, Meghan Clement, the lab analyst who had conducted the DNA testing in 2014, provided an affidavit saying that the two male DNA profiles obtained from the evidence were compared to the profiles of every male employee at the lab, and they were excluded. The Innocence Project also obtained a DNA sample of a male relative of Dr. J.B. Wallace, the doctor who had taken the rape kit. Wallace also was excluded. Jane Hill, the OSBI criminalist who had conducted the original examination of the evidence prior to the trial, provided an affidavit saying it was “highly unlikely” any males at OSBI would have come into contact with the evidence.
On the eve of the hearing, Smith offered to modify Lott’s sentence and agree to allow him to be released immediately if Lott would abandon the motion to vacate his petition. Lott accepted the offer, and on July 9, 2018, he was released. He accepted the offer despite maintaining his innocence because he was guaranteed his freedom. He had spent 30 years and four months in prison since the date of his conviction.
Smith retired in 2022. Erik Johnson was elected to replace him and was sworn as District 22 District Attorney in January 2023.
In August, Scheck, Innocence Project attorney Adnan Sultan, and Tulsa attorney Joe Norwood filed a supplemental application for post-conviction relief. The motion asserted that Smith had misrepresented facts back in 2018 and had concealed that Crosby, the lead detective in the prosecution of Lott, had committed suicide on the eve of the evidentiary hearing. The motion said that Crosby was expected to be a primary witness at the hearing, and disclosure of his death would have had an impact on Lott’s decision to accept the deal to get released.
The motion noted that in 2019, at the direction of his parole officer, Lott took a polygraph examination to determine whether he would be placed on sex offender parole. The examiner said Lott showed no deception when he denied the attack. As a result, he was placed on unsupervised parole.
The motion said Smith’s claim that the perpetrator had worn a condom and gloves “misrepresented the evidence,” noting that D.R. testified that the attacker took off his gloves during the attack. Moreover, since D.R. only had one sexual partner, her ex-husband, the presence of two male DNA profiles meant that one of the profiles “had to be that of the perpetrator.”
Following a re-examination of the case, Johnson agreed that Lott’s convictions should be vacated. On October 10, 2023, Judge Kessenger signed an order vacating the convictions and dismissing the case.
Afterward, Lott declared, “I have never lost hope that this day would come. 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.”
District Attorney Johnson said, “Numerous individuals within my office have been involved in reviewing the record, but at the end of the day, I must do what I believe the facts and the law require. In my mind, the post-conviction DNA evidence was the pivotal fact. Pursuant to state statute, if post-conviction DNA testing is favorable to the defendant, then an appropriate remedy is vacating the judgment of the conviction. That's exactly what we did."
– Maurice Possley
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