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Prosecutors undecided whether to retry Wyoming man for rape

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By Ben Neary
Associated Press
CHEYENNE, Wyo. -- A Wyoming man released from prison after serving 23 years says he's confident new DNA testing in his 1989 rape case will lead to his exoneration if prosecutors take him to trial again.
Andrew J. Johnson, 63, of Cheyenne said after a court hearing Friday that he's been living with relatives in Cheyenne and looking for work since he was released on bond last month.
Laramie County District Judge Thomas Campbell of Cheyenne ordered Johnson released after the state crime lab concluded DNA testing proved Johnson wasn't the source of evidence in the rape case for which he had been serving a life sentence.
Johnson's lawyers have asked Campbell to drop the charges against him. However, the judge on Friday set an Oct. 14 retrial date in case prosecutors decide they want to press the case.
Campbell told Johnson's lawyer David Serelson and prosecutor T.J. Forwood that he expects them to work out issues before trial, including how they would explain to a jury why the case was coming back after so long.
Laramie County District Attorney Scott Homar said after Friday's hearing his office hasn't decided which way it will proceed with the case. It has three choices: stipulate to Johnson's actual innocence, go forward with trial, or dismiss the charges, he said.
"We're still in the middle of what I'm calling a reinvestigation of the case," Homar said. "Right now, we're set for trial. We're just going to go as if we're proceeding."
Serelson declined to comment after Friday's hearing.
Johnson was convicted of breaking into a Cheyenne woman's apartment and raping her after the victim identified him at trial. Homar said last month that his office had been in contact with the victim and could have her testify again.
The victim had said Johnson raped her after they spent an evening together visiting bars in Cheyenne, authorities said. Johnson told police he walked home alone after the victim drove from a bar without him.
Johnson attended Friday's hearing and said afterward that the DNA test results prove his innocence. While the state could rely on the witness' testimony if his case goes back to trial, he said, "I'm very confident that this results this time in my being exonerated of any conviction."
Johnson had contacted the Utah-based Rocky Mountain Innocence Center from prison and asked them for help gaining his release after exhausting his appeals in state and federal court.
Lawyers from the center worked with Wyoming legislators to change state law in 2008 to create the legal procedures for asserting new DNA testing could prove defendants' innocence.
A lawyer with the Innocence Center filed a report with Campbell in March stating that new DNA testing conducted by the Wyoming Division of Criminal Investigation concluded Johnson "can be excluded as a possible contributor" of DNA taken from the victim.
A committee of Wyoming lawmakers is set to consider a proposed bill in Jackson on Monday that would change state law to allow compensation for people exonerated by DNA evidence. The measure would allow compensation of $75 a day, with the total not to exceed $300,000.
Rep. Keith Gingery, R-Jackson, is a county prosecutor and co-chairman of the Legislature's Joint Judiciary Committee. "Nobody -- from prosecutor, to judge, to all aspects of the system -- nobody wants an innocent person to be incarcerated," he said.

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