Cold hit rapist takes plea bargain

Bracey must also pay more than $20,000 in restitution and register as a sex offender for the rest of his life.

While changing his plea, the orange jumpsuit-clad Bracey spoke softly, often smiled and shifted obviously from side to side. He wrinkled up his forehead when asked to admit that he caused the victim great bodily injury but ultimately agreed.

Prosecutor Elizabeth Raffaelli plans to file a memo outlining the case for those parole hearings to help "ensure this defendant won't be out in the community during his natural life."

She may also contact Bracey's former residences in Cupertino and Sunnyvale in case he can be matched to any other lingering cases.

"I'd be very surprised if this thing happened in isolation ... I hope that other agencies, if they have unsolved rapes, submit their DNA to the database," Raffaelli said.

The DNA that near-perfectly tied Bracey to the 1996 sexual assault of a San Carlos woman never had its day in court but still played some role in his ultimate conviction, according to prosecutors.

"The DNA evidence was overwhelming," Raffaelli said, referencing semen and blood stains on the victim's shirt. The fluids suggest the victim was wearing clothing when assaulted and struggled with her attacker, she added.

Defense attorney Paul Demeester, though, said a bigger push for Bracey was the recent denial of a new trial on his earlier conviction.

"Those circumstances changed things," Demeester said. "And he wasn't sure he could beat this case based on the totality of the evidence."

Bracey was serving a 25 years to life sentence at Pelican Bay Prison when he was linked to the unsolved rape through a blood sample he gave when incarcerated.

The 31-year-old victim reported returning home July 27, 1996 from a night out drinking when she was attacked. Bracey grabbed her by the hair, told her to get up and ultimately inflicted knife wounds on her arm and bruises all over her body, Raffaelli said.

The woman passed out during the attack and awoke to find a black baseball cap on her bed.

The victim returned to the house with police the following morning to assess the crime scene and then never went back.

"The bottom line and what is really frightening is that it happened in the safety and sanctity of her home by someone she didn't know," Raffaelli said.

Cold hit program

Evidence gathered from the cap and the victim grew cold until the state Department of Justice began its "cold hit" program. San Carlos police Sgt. Mark Robbins submitted his evidence and got a hit.

By the time San Carlos police officers returned to sample Bracey's hair, he had moved to Deuel Vocational Institute in Tracy and defiantly shaved his head in response to a search warrant. Officers ultimately went with a blood sample.

Investigators later tied Bracey to San Carlos through an apartment his then-wife rented for him in her name. Working backward, the police found Bracey was wanted for failing to appear in Santa Clara County at the time of the rape. He had changed his name and was using a fake driver's license.

Changing stories, constitutional issues

Bracey offered multiple stories to officers. First, he claimed never to have been to San Carlos but that alibi morphed into a consensual sexual relationship. The stories were ultimately disproved by letters Bracey wrote to an out of state witness and during a jail house conversation with a family friend, Raffaelli said

The match was the county's first hit and came just as the statute of limitations was set to expire on the criminal charges. Bracey was transported back to San Mateo County in October 2002 and Demeester set to work on both clearing his client and discrediting the genetic marker process altogether.

Shortly after Bracey pleaded no guilty in December 2003, Demeester began arguing that the mandatory blood draw is a violation of the Fourth Amendment limiting search and seizure without a warrant. A motion to toss the DNA was denied, even as the federal courts wrangled with the constitutionality of blood sampling and databases. Bickering over the DNA provided fodder for most of the case delays although a change in prosecutors also played a role.

Demeester was successful in having robbery and burglary charges dismissed by a judge who ruled too much time had passed since the crime to charge Bracey. The same judge upheld the recent extension of rape limits to a decade from the previous six-year cut off.

Genetic testing issues

In early March, Raffaelli's attempts to speed up the trial inadvertently caused another postponement. Raffaelli ordered new genetic testing on the victim's clothing, leading Demeester to ask for more time to review the findings. Raffaelli tried to circumvent the delay by at least having the case assigned to a court for pre-trial motions but was denied.

Bracey's plea change comes just days before the attorneys were set to hash out what DNA evidence from the new tests a jury would ultimately hear during trial. Demeester said had the case moved forward he planned to challenge the validity of the new genetic testing technology.

Demeester said an offer made once before to his client was declined. Demeester approached the District Attorney's Office for resolution last week and was told to decide before Thursday's DNA hearings.

At the conclusion of Tuesday's hearing, Demeester returned to old ground, objecting on behalf of Bracey to mandatory HIV testing and DNA sampling.

Demeester concedes the move means little to Bracey but said he always objects for his clients because the U.S. Supreme Court has yet to definitely rule on the Fourth Amendment aspects.

Closure

Bracey will be immediately shipped back to San Quentin State Prison for processing and assignment to a state prison. The new rape conviction, which adds a strike to his criminal record, could increase the level of security he requires while imprisoned.

Bracey's victim, meanwhile, can find closure and find peace in not having to face her attacker in court, Raffaelli aid.

"You have to remember, she has never even laid eyes on him before," Raffaelli said.

Since Bracey, only one other cold rape case has been thawed by DNA testing. Jose Luis Rivera Villeda, 23, will be tried in November for a 1999 sexual assault in San Mateo. In 2003, after a conviction on attempted rape and robbery in Redwood City, Villeda's DNA was tied to the earlier attack on a 19-year-old woman kidnapped after a Halloween party.

New testing

California began collecting blood and saliva from those convicted of certain sex and violent crimes in 1984 and averaged one hit annually. In 1994, the official Department of Justice DNA Convicted Felon Databank was established, speeding the rate of analysis and matching. By 2003, the state reported at least one hit a day in what has become the largest working DNA databank. Currently, more than 200,000 DNA profiles have been created by samples and the number is growing with the passage of Proposition 69. The law mandates that DNA swabs be taken from every adult and juvenile convicted of a felony. Beginning in 2009, every adult arrested for certain felonies, including sex offenses, murder and voluntary manslaughter, will be tested.

Michelle Durand can be reached by e-mail: michelle@smdailyjournal.com or by phone: (650) 344-5200 ext. 102. What do you think of this story? Send a letter to the editor: letters@smdailyjournal.com.