By Mark Puente, The Marshall Project and Tara Morgan, News 5 Cleveland
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Samuel Herring shuffles slowly, even for a 67-year-old. Tightly gripping a wooden cane in his right hand, he slides into a black leather chair, straightening his posture before retelling his story. He’s dressed like he is every other day: a rumpled, button-down blue shirt, navy pants and a white knit cap tilted on his head — remnants of his life behind bars, all 39 years and seven months. And all, he insists, for a crime he didn’t commit. He was sentenced in 1984 to what amounts to a life sentence for kidnapping and raping Phyllis Cottle, crimes punctuated by blinding her with a knife and forcing her to free herself from a burning car.
Decades later, out of appeals and resigned to dying in prison after several failed parole requests, Herring wrote a Hail Mary letter to the Ohio Innocence Project. Their review of his case, they say, has exposed common deficiencies that have led to exonerations for dozens of people in Ohio: disparate treatment of a Black man, a conviction won with misleading forensic evidence, historically erroneous cross-racial eyewitness identification and a rush-to-arrest police investigation. Black people represented over half the 3,200 exonerations through September 2022 in the National Registry of Exonerations.
Innocent Black people are almost eight times more likely than White people to be falsely convicted of rape. This racial disparity can largely be attributed to the misidentification of Black suspects by White victims of violent crimes, according to the group. Herring’s case has all those earmarks.
For nearly 40 years, Samuel Herring has been imprisoned for the brutal rape of Phyllis Cottle. Herring has maintained his innocence. Now prosecutors in Summit County, Ohio, and attorneys from the Ohio Innocence Project are examining DNA evidence to see if the right man is behind bars.
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And now, for the first time, the lens of modern science will test Herring’s veracity as well as the resolve of law enforcement long bent on keeping him in prison. DNA testing is taking place, potentially opening the door for Herring to win his freedom after nearly four decades behind bars.
“I care about what people think,” Herring said. “I want to prove my innocence, regardless if I did all the time (in prison). I want them to know I wasn’t the one who did that. I just want everyone to know I wasn’t the man … They had the wrong guy.”
The work of the Ohio Innocence Project has prompted Summit County prosecutors to agree in October to a forensic review of seven pieces of evidence collected from the Cottle rape: bindings, wire, Cottle’s clothing, a can of car refinisher and a white cloth. Summit County Prosecutor Sherri Bevan Walsh said her office’s Conviction Review Unit has been working with the Ohio Innocence Project, who first accepted Herring’s case about three years ago.
“We jointly agreed to ongoing and additional DNA testing,” Walsh said in a statement to The Marshall Project – Cleveland and News 5. “We will continue to investigate to ensure justice for Phyllis Cottle’s family.”
The Marshall Project – Cleveland and News 5 contacted more than 10 of Cottle’s relatives. The family declined to comment. Phyllis Cottle died in 2013 at age 73. But her story endured for years as she devoted her life to advocating for crime victims and those living with blindness. Her stance on Herring’s release was always clear. In a 2004 interview with News 5, Cottle, a hobbyist photographer before the attack, called Herring a “creep” and vowed to work to keep him behind bars.
“What is his debt to me?” she asked. “He put me in a prison of darkness for the rest of my life.”
Herring is optimistic a DNA assessment of his case will correct the shortcomings of 1980s-era justice when such forensic measures were not yet available. Still, he said, his lost years in prison don’t compare to Cottle’s losses.
“Ms. Cottle died hating me,” Herring said, his voice trailing off during an interview at the Richland Correctional Institution. “It bothers me; it eats at me. I never got the chance to prove my innocence to her. That really eats at me.”
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Herring’s continued incarceration comes largely because he’s never budged from his claims of innocence. It’s a message parole board members traditionally don’t want to hear. Herring, like others who appear before the board, was urged to show remorse. Cottle and her family have consistently shared their disgust over Herring, insisting his repeated denials are proof he has “no remorse and no respect for the human race.”
At a hearing in 2019, Herring told the board he could not take responsibility for a crime he didn’t commit. As a result, the board determined releasing him “would not be in the best interest of society and would demean the seriousness of the offense.”
One board member, however, tossed Herring some hope, suggesting he contact the Ohio Innocence Project. He did so almost immediately.
Since its inception in 2003, the Ohio Innocence Project has worked to free 42 wrongfully convicted Ohioans. Collectively, the formerly incarcerated had served more than 800 years behind bars. Nationally, 3,400 wrongfully convicted people have been exonerated since 1989, according to the National Registry of Exonerations.
The Ohio Bureau of Criminal Investigation is retesting the Herring case evidence to obtain a DNA profile. The evidence includes a towel believed to contain semen left by the rapist. The items used to convict Herring hadn’t been needed for testing since his lone appeal was denied not long after his conviction and he had no money or resources to access an attorney.
Mark Godsey, director of the Ohio Innocence Project at the University of Cincinnati Law School, said it was a textbook case of “junk science,” such as fibers and hair evidence coupled with poor eyewitness testimony, that convicted Herring. “The benefit of hindsight brings new light to this case,” Godsey said. “This is the opportunity to make sure justice is served.”
The Attack
On March 20, 1984, Akron police responded to Wellington Avenue and Myra Street, where Cottle, a 44-year-old mother of three, had just escaped from a burning car. She told police that a stranger abducted her as she stepped into her vehicle on West Exchange Street. A man pushed a gym bag against her face and threatened her with a knife. After driving for 10 minutes, they arrived at an abandoned house. The man covered her eyes with her jacket, tied her hands and feet, and took her inside. All the while, Cottle began mentally noting what she saw: The nearby blue house adorned with an eagle ornament and the green carpeting and dresser inside the house where she was attacked. After the assault, Cottle said she was forced to empty her purse on the floor so the attacker could take her few bills and coins. He then made her rip a check from her checkbook: “Now I have your address if you go to the police.” After Cottle got dressed, she said the man tied her feet with wire and told her to keep her eyes shut as they made their way back to the car. As he drove, he promised to set her free if he got cash. They visited several banks to withdraw cash, but a teller became suspicious at the second bank, asking Cottle and the rapist to come inside. Instead, Cottle said the attacker drove away. While driving, the man forced Cottle to perform oral sex again. He then took her inside the same vacant house and raped her again. He gave her a towel to clean herself. The man then put Cottle in the car and drove around again. He told her he would let her go if she didn’t tell the police. She said the man drove to Wellington Avenue and Myra Street. He again tied Cottle’s wrists and ankles. Becoming increasingly angry and frustrated, the man said: “You’ll go to the police. They’ve all lied to me. They all went to the police.”