State: DNA links perpetrator to 1985 rape. What the prosecutors argue

PROVIDENCE — The state is asking a judge to dismiss a Pawtucket man’s effort to free himself from prison after a second round of DNA testing linked him to a 1985 rape.

Norberto Andrade, 62, had been seeking to undo his rape conviction and be freed on bail after a DNA test conducted by the state Department of Health in January showed that evidence taken from under the victim's fingernail could not have come from Andrade.

After those findings, the state Department of Health analyzed other items in the rape kit and determined that there was enough DNA evidence from the vaginal swabs to conduct a profile analysis. The samples were sent to the Serological Research Institute in Richmond, California, for additional testing.

The report concluded that, based on a comparison of Andrade’s DNA profile and the sample provided, that Andrade could be the major male contributor, according to the state’s filing.

“The chance that a randomly selected, unrelated person would have the same profile as the major contributor is approximately 1 in 279 quadrillion,” the lab wrote.

DNA vs. DNA

Andrade - who has always maintained his innocence - has been seeking post-conviction relief based on the fingernail samples. But the state now argues the more recent DNA findings should trump those.

“While the DNA evidence in this case is undeniably material, it is certainly not exculpatory. This evidence instead definitively shows that [Andrade] sexually assaulted the victim in this case insofar as the DNA found on the vaginal swab was a match to the Petitioner’s DNA …,” Special Assistant Attorney General Judy Davis wrote.

Davis argued the DNA evidence would not have altered the outcome of his trial – the bar that must be met for a judge to grant post-conviction relief.

“To the contrary, the evidence corroborates the testimony of the victim in the case that Norberto Andrade was the person who broke into her apartment on August 3, 1985, and raped her at knifepoint,” Davis said.

Andrade’s lawyer, Stefanie Murphy, is objecting to the state’s motion to dismiss, citing the fingernail samples that exclude Andrade. She plans to raise ineffective assistance of counsel and other claims.

The case is before Superior Court Judge Robert D. Krause.

Police soon link a suspect to the crime

A young woman reported on Aug. 3, 1985, that a man had entered her third-floor apartment on Abbott Street in Pawtucket via the fire escape around 5 a.m. as she slept, according to the police report. He put a knife to her throat and ordered her to disrobe. He then raped her, warning her not to look at him before throwing a blanket over her head. He demanded money and stole $40 from her Christmas club.

Now retired Sgt. John Seebeck immediately thought of Andrade upon hearing the woman’s description of a 5-foot-4-inch perpetrator with brown skin and a Portuguese accent. Seebeck told other officers of his suspicions. (Andrade’s mother had previously owned the Abbott Avenue home.)

Days later, a police officer spotted Andrade “acting suspiciously” with his hands in his pockets around 2 a.m. on Mineral Spring Avenue, court records show. Andrade fled when the police tried to question him and was apprehended. He was brought to the station and photographed by Seebeck.

Later that same day, the woman picked out Andrade’s image from a photo lineup.

Andrade was represented at trial by late public defender John Hardiman, who argued that Andrade’s statements to police were taken against his consent and without the assistance of an interpreter, as his client had limited English skills. He challenged the photo lineup as overly suggestive, in violation of the Constitution.

Judges rejected those arguments, and Andrade was convicted at trial in February 1987, with the jury returning the guilty verdicts in 1½ hours.

Superior Court Presiding Justice Anthony A. Giannini sentenced Andrade to the maximum, a life sentence, for robbing and raping the woman, plus a consecutive 25-year enhancement as a habitual offender.

The Rhode Island Supreme Court later upheld his conviction.

This article originally appeared on The Providence Journal: State: DNA links perpetrator to 1985 rape What the prosecutors argue