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The David Allen Keen Story
DNA testing continues to be denied for Virginia man sentenced to two life sentences plus twenty years for rape of elderly woman
Account by Tamela Carey
Edited by Barbara Jean McAtlin, Justice Denied Staff
On December 5, 1995, David Allen Keen was convicted of breaking and entering a dwelling with intent to commit rape, and rape and forcible sodomy in the Circuit Court of Tazewell County, Virginia. Shannon Cooke, a court-appointed defense attorney, represented David and Judge Donald Mullins convicted him. David had pleaded not guilty to the crime and, even though DNA testing could have easily proved his innocence, he was convicted and sentenced to two life terms plus twenty years in prison.
On June 13, 1994, David spent the day at the home of his friend, Jim Beavers. Beavers lived across the road from the trailer park where Nancy Greer lived, and about a half a mile from David's home. A little after 10:00 p.m., David rode his bicycle home from Beavers' house and went to bed. (David rode his bicycle everywhere after his driver's license was revoked for traffic violations.)
At 12:24 a.m. on June 14, 1994, the Tazewell County Sheriff's Office received an emergency call. Sixty-three year-old Nancy Greer told the dispatcher she had been raped. After she made her call to the Sheriff's Office, Greer went to the home of her friends, Eddie and Rita Pauley. She told them she had been raped but she did not see or know who had done it.
When officers arrived at the Pauley's home, Eddie Pauley told them he did not see or know who had raped Greer but he said it could have been David Keen because he had been in the neighborhood earlier that day. He also told the officers that David was wearing a blue tank top and riding his bicycle.
Nancy Greer was taken to the Tazewell County Community Hospital (still wearing the panties she had been wearing during the rape) where an examination was performed and a rape kit procured. During the examination, Greer told the emergency room physician, Dr. Sherif Shoukry, she did not know who raped her.
At 2:00 a.m. that same morning, Dr. Shoukry wrote his report on Nancy Greer's rape. In his report he says that, "Greer was alert, oriented, in no acute distress; vital signs normal; neck was tender, abdomen tender; contusions on the face, arms, legs, back and vulva; contusions around the vagina. Severe atrophic vaginitis, yellow-white discharge tinged with blood, uterus difficult to palpate, difficult to examine secondary to the atrophic vaginitis. The anus was found not to have been penetrated."
Dr. Shoukry's report could easily have shown that Greer had not been sodomized (as she claimed she had been) and it could have shown that, as a result of her severe atrophic vaginitis, it would have been extremely difficult to examine her to find out if she had, in fact, even been raped. Dr. Shoukry's report was not brought up at David's trial and his defense attorney failed to question the doctor about it.
When Greer was examined, her white blood count was an abnormally high 17,000 because of the infection caused by the vaginal disease. Severe atrophic vaginitis can be related to many of the attributes that could lead to the conclusion that a rape had occurred. Had the doctor's emergency room report been followed up with an in-depth medical report, it may have been found that Greer's vaginitis was transferable and it may have shown how long she had had the disease. Either of these factors could have proven if Greer had indeed been raped or had intercourse.
Serious questions about David's guilt arise when the handling of the evidence from the Greer rape is scrutinized. At David's trial, officer Turley testified that on June 14, 1994, he picked up the Greer rape kit from the hospital and handed it over to Investigator Roger Nelson. Nelson testified he hand-carried the rape kit to a laboratory in Roanoke, Virginia, on June 22. Nelson had held onto the rape kit for a full eight days before turning it over to the laboratory. Officer Charles Ruble testified he collected evidence at the crime scene and packaged it to be sent to the laboratory for testing. His evidence list included: "broken glass, mattress cover, sheets, flashlight, fingerprints." He testified he turned this evidence over to Investigator Nelson also on June 14. This evidence was delivered to the laboratory along with the rape kit.
When questioning Greer on the night of the rape, she told the police officers that she had taken one Excedrin P.M. for a pain in her hip before she went to bed. She said she woke up and saw a naked man standing over her and that, although he had already removed her pajama bottoms, she was still wearing her underwear. She said she did not know when the man had removed her pajama bottoms and she did not hear anyone enter her home by breaking a window and she did not see or know who raped her.
Greer also said that after the man raped her for about a half-an-hour, he took her purse and left through the back door. She said that when he was going out the back door she was running out the front door to go to her neighbors, the Pauleys. When the police officers arrived at the scene, they called on Investigator Clarence Tatum, who owns a bloodhound, to continue the investigation. At that time, Eddie Pauley told the police, he "did not know who raped Greer, did not see anyone," but he "thought it could have been David Keen."
After talking to Eddie Pauley, the officers drove over to the Keen residence. At 3:00 a.m. on June 14, the Keen family awakened to flashing police car lights blinking in their windows. The officers radioed the investigators with the bloodhound and asked them to meet them at the Keen residence. Before being moved to the Keen house, the dog had tracked about a mile in the opposite direction of the Keen home to the home of Kevin Shorter. Investigators pulled the dog off that track and arrived at the Keen home about twenty minutes later. The dog was put to work in the Keen's driveway but he did not give any signs he had found the rapist.
David's mother told the officers she knew for a fact David had gotten home around 10:30 p.m. on June 13 because she had gotten up to use the bathroom around 11:00 p.m. David was still awake and she saw him when he got up to get a soda from the refrigerator. Nelson and the other officers entered David's home and searched each room. They asked if they could search the dirty laundry. They found nothing. David voluntarily gave Nelson the blue tank top he had been wearing at Jim Beavers' house earlier the day before. David was then taken to the Sheriff's Office where he was fingerprinted, photographed and questioned. David had wrecked his bicycle a few days earlier and still had a scratch on his neck from the crash. During his questioning, investigators asked David how he had gotten the scratch even though it was almost healed and it was obviously not a recent wound. That night, David was released and taken back to his home.
Although they had turned him loose that night, on June 17, 1994, David was arrested at his sister's home. When Investigators Tatum and Nelson took him to their office, David asked for an attorney. Nelson told him, "You need to admit to something, that's the only way we can help you, otherwise you are looking at a lot of years." The investigators did not allow David to talk to an attorney, but David continued to tell the officers he was innocent. Nelson wrote up a statement saying that David broke into Greer's home looking for money and pills but he did not rape her. The statement also said David broke the window but he didn't know if he "had broke it a stick or something." (Sic) David was then told to sign the paper so he could be read his Miranda rights. David was not read his Miranda rights until after the investigators interrogated him even though when David had said, "I want an attorney," that was enough to trigger his Fifth Amendment protection.
Earlier in 1994, David had filed for Social Security benefits under the Americans With Disabilities Act. The Social Security Board ordered an evaluation of him to determine if he was eligible for benefits. The June 4, 1994, report from David's Social Security evaluation says, "This individual had considerable difficulty following instructions in both verbal and performance skills. Several times he gave inappropriate answers without realizing his mistakes. He was extremely weak in the subtests, which concern concentration, attention and visual motor coordination." David Keen's IQ was also reported to be only 68.
David's preliminary hearing was a sham. David's defense attorney was aware of the Social Security Board report, but he failed to tell the court that his client had not had his Miranda rights explained to him, or that he had been interrogated without the benefit of an attorney. Nelson testified that the statement being used against David was not the statement of David Keen, but was what he and Tatum had written into a statement after talking to David. The first statement the investigators fabricated said David didn't know what he had used to break Nancy Greer's window. The investigators testified they had not found anything that could have broken the window.
When questioned by the defense at David's preliminary hearing, Greer testified that on the night of the rape she did not have her glasses on and she could not see without them; there were no locks on the windows and she had small night lights turned on in the living room and the utility room. Greer also said it was dark in her bedroom and the man was naked when she woke up. She also said she saw him put his pants and baseball cap on after the rape but she only saw him from the back as he was putting on his clothing. She could not see his face and she did not know she was being raped while the rape was in process. Though David had been seen wearing a blue tank top, Greer said, "No, he didn't have no shirt on." (Sic) When the defense asked if she could estimate how tall her assailant was, she said she couldn't because he was on his knees during the half-hour rape.
When questioned by the prosecution at David's trial, Greer testified that on the night of the rape she had raised her bedroom window to get some fresh air. When she was awakened, she said she saw a man who was naked from the waist down and wearing a short T-shirt. She said she screamed and the man slapped her. He then put her legs across her shoulders and put his penis in her vagina. At that point, she told him he was hurting her and to let go of her. She said when he grabbed her between her legs she told him she was an old woman. He turned her loose for a moment but grabbed her hands and legs again. Greer said he then put her leg on his shoulders and his penis in her rectum. Greer said she told him if he would leave her alone she would give him the money in her handbag. She also told the prosecution she could not describe the man because she did not have her glasses on. She testified later that the rapist was "tall, a little tall." (David is over six feet tall.) She told the court the rapist was clean-shaven with a "new hair cut," and she had scratched him on the neck. After the rapist was finished, she told him where her handbag was. He put on his pants, his shirt and his baseball cap. Before the rapist went out the back door, Greer said he told her three times he would be back. She said she was afraid he wanted to come back and "shack up" with her. She pointed at David as being the man who raped her. She said she had met him at her nephew, Jim Beavers', house.
When the defense questioned Greer, she said she could not see the man's face and she did not know if the man had a beard or not. She thought the man may have had a shirt on when she woke up, but he pulled it off and put it behind her bed. Greer also said "in a way she knew who had raped her and in a way she did not" because she had seen him at her nephews' home before the rape. She said when she had gone to the Pauley's house she did not tell them who had raped her because she did not know who had done it and she did not give any description of her rapist. She also recalled the first time she had heard a name connected with her rape was the day after when people were saying they had seen David riding his bicycle down the road and it might have been him.
The fact is, Greer was alone when the alleged rape occurred. She testified that she did not give her neighbors a description of the rapist. How could she when she had never seen him? She could not identify him because it had been dark and she did not see his face. She first testified the rapist was clean-shaven and then said she didn't know if he had a beard. She testified he did not have on a shirt; a year later she decided he did have a shirt. By the confused way Greer kept changing her testimony, it is very clear the prosecution had coached her but she couldn't keep the "facts" straight.
Greer had purchased her home from David Keen and his wife. David often mowed her lawn as well as other lawns in the trailer park. Greer had seen him at her nephew's home on many occasions. About a week after the rape, Investigators Tatum and Nelson took a photograph of David at the jail and put it in a book of photographs they showed to Greer. They testified that she had identified David as her rapist out of that book. Most likely, David was the only person Greer had seen before and this is why she picked his photograph instead of any of the others.
Mike Dennis, the Commonwealth's Attorney for Tazewell County, presented witness testimony from Elizabeth Beavers, the wife of Greer's nephew. Beavers testified David had left their home around 10:30 p.m. on June 14, 1994. She said she saw someone on a bicycle going in the direction of the Keen home about 12:30 a.m. She could not see who was on the bicycle and she could not tell if it was a man or a woman. All she could say was that the person was wearing dark clothes. Eddie Pauley testified he did not see who had raped Greer even though his assumptions had led to the arrest of David Keen. During their testimony, it was obvious that Greer, the Pauleys and the Beavers had been rehearsed and coached by the prosecution. Mike Dennis is well known for withholding discovery material until the morning of a trial. At that time he announced his surprise witness -- a convicted felon who, of course, heard the defendant admit to committing to the crime. A convicted felon named Mike Smith testified David had told him he had raped Greer but they couldn't prove it.
The rape kit evidence from the Greer case had contained fingernail clippings taken from Greer, pubic hairs, DNA samples, and the panties she had been wearing during the rape. Other evidence waiting to be sent to the forensic laboratory included blood samples Nelson had taken from David. This evidence was not given to the laboratory until June 24, 1994, a full ten days after the rape. The evidence that was turned into the lab consisted of a mattress pad, a set of sheets, a blue tank top, fingerprints taken from Greer's home, and a piece of broken window glass. The fingerprints, mattress pad, sheets, pubic hairs, tank top and panties have never been tested. Greer's fingernail clippings came back clean -- she had not scratched anyone. None of this was ever been brought to the attention of the court. A partial palm print that matched David was found on the broken glass, however, it is unknown if the palm print was found on the inside or the outside of the window. The court never heard that David had lived in the trailer before he sold it to Greer or that he had done work there for her. Either of these facts could easily explain the partial palm print on the window. Any evidence that would have exonerated David Keen was either not tested or the results were kept out of the trial.
At David's pretrial hearing, his defense attorney was made aware of a letter written by Deanne Dabbs, the program manager of the laboratory. The Commonwealth's attorney had not turned over this discovery evidence as he was legally bound to do. The letter said the RLFP DNA testing in this case was of no value. Counsel argued the only thing that could be ascertained from this DNA information was that there was a 3.3. allele and it is not possible to ascertain whether that 3.3. allele belonged to Greer, David or a third person. The discriminating power of the allele is zero in this case.
David's defense attorney also asked for a motion to discover the proficiency test data for Jean Hamilton from the forensic laboratory. They asked for the actual test results of any proficiency testing in which she may have participated to prove that mistakes could have been made in the DNA testing. The judge denied the motion and said, "My God! Blood flows through her veins the same as yours and mine. I'm sure she has made an error somewhere along the line." The defense argued that without the test results Hamilton could testify she never makes errors and the defense would be unable to dispute it. The judge said, "I don't think you are entitled to that." Hamilton went on the stand to say she had found the same 3.3. Profile in both Greer's and David's DNA profiles and she said their genetic make-up was the same. Hamilton said her RFLP (Restriction Fragment Length Polymorphism) testing in this matter was inconclusive and there was no way she could have a database recheck the profile. She said there are only 21 types of genetic make-up so not everyone is going to have a different type; some people are going to have the same type. In the letter from Deanne Dabbs dated April 17, 1995, she writes the RFLP testing proved to be of no value. The letter says, "no additional information can be provided regarding the contributor of the seminal fluid beyond that already provided in the certificate of analysis."
The defense had been allowed $3000.00 to hire a DNA expert. Cooke failed to hire an expert. He also failed to object to three of the jurors, even after David informed him that these jurors knew him and his family and he knew these people did not like him. Cooke failed to have them removed and failed to bring the problem to the attention of the judge.
Evidently, investigators also failed to look for the pocketbook Greer said the rapist took and nobody ever mentioned the amount of money that had been taken from her. This was also not brought up at David's trial and no reports regarding the pocketbook or the stolen money exist in the police files. Pat Hensly, who lives in the same neighborhood as Greer, has told several people that Greer had over $800.00 in her purse. He has said Greer's purse was found on Davis Lane, the first place the dog tracked to. He has also said the purse was on top of the furnace in Greer's home. The defense failed to obtain the police files or to question the investigators to find out if there were any other suspects.
Shannon Cooke failed to fully question Greer about the rape because he said he felt sorry for her. It has never been proven Greer was robbed. Greer said the rapist was wearing a baseball cap. David has never been questioned about a baseball cap. It was never mentioned at the trial if Greer's purse had been found or how much money had been taken from it. David has never been questioned about these things. David's defense attorney failed to find out whose house the dog first tracked or to obtain police files to find out if the police were looking at any other suspects. David's court appointed attorney did just as the court expected him to do. He allowed his client to be convicted of a crime he did not commit. Dr. Shoukry's report clearly shows Greer was not sodomized. It isn't even clear if she was actually raped.
David was convicted of raping Nancy Greer and sentenced to two life sentences plus twenty years. He is now serving out his term at the Nottaway Correctional Center in Burkeville, Virginia. DNA testing could prove his innocence. David and his family have no money for an attorney. With the help of a family friend who has no legal training, David now has an informal brief pending in the Fourth Circuit Court of Appeals. David did not have a criminal record prior to this conviction.
Mike Dennis, Clarence Tatum, and Roger Nelson are well known throughout Virginia for fabricating evidence to build a case around the person they want to be guilty. George Horn, one of the officers involved in the investigation, and officer Skip Honaker, Judge Mullins right-hand man, were recently fired for destruction of evidence. Although Judge Donald Mullins has been arrested for drunk driving, he has never missed a day on the bench. He has been found guilty in the Circuit Court and the District Court, but according to the judicial review board, he is not really guilty as long as he appeals. Bill Osborne, who was at one time the sheriff of Tazewell County, has also been found guilty of destruction of evidence.
David believes he could positively prove his innocence if he could get the DNA testing he so desperately needs. He also needs a pro-bono attorney. With the advent and the availability of DNA testing, for a man to be sentenced to two life sentences plus twenty years for a rape he may not have committed is unbelievable.
David Allen Keen # 233003
Nottaway Correctional Center
P.O. Box 488
Burkeville, VA 23922Tamela Carey
Rt 1 Box 196A
Cedar Bluff, VA 24609
1-540-963-5777
tamelac@stargate.net
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