Van Dyke Perry

At a Glance

• Innocent Years Served (Washington State): Six months, 14 days
• Sentence: Six months, 14 days
• Wrongful Conviction: Failure to register as a Sex Offender (2 counts)
• Jurisdiction: Clark County, Washington
• Released: 2008
• Exonerated: June 7, 2019
• Cost of Wrongful Incarceration*: $31,813
• Lost Wages**: $30,760

At a Glance

• Innocent Years Served (New York): 11 years
• Sentence: 7 to 14 Years
• Wrongful Conviction: Rape in the First Degree (4 counts), Sodomy in the First-Degree (3 counts), Kidnapping in the Second Degree
• Jurisdiction: New York County, New York
• Released: November 2001 (on parole)
• Exonerated: May 17, 2018

About Xavier

In 1992, 21-year-old Xavier Perry and his co-defendant Gregory Counts were wrongly convicted of rape and other serious crimes in New York. The convictions were based on a false accusation that – many years later – was recanted, proving that the alleged crimes never occurred. 

Before his exoneration and after moving to Washington State, Xavier was charged and pled guilty to two counts of felony failure to register as a sex offender.

In 2018 – 28 years after he was convicted and 7 years after his release on parole – Xavier was exonerated in the New York State sexual assault, after postconviction DNA tests cleared him and the alleged victim admitted she had falsely accused him. No crime had ever occurred.  

In 2019, Washington Innocence Project persuaded prosecutors in Clark County to dismiss the failure to register charges given that the underlying crime never occurred and Xavier never committed a sex offense of any kind.

The Investigation ~ Washington State

On two occasions in 2008, Xavier was charged in Clark County, Washington with failure to register as a sex offender, a felony offense. Xavier was registered as a sex offender in New York and mistakenly believed this meant he was not required to register in Washington. In February 2008, his landlord discovered his sex offender status and contacted the police. Xavier pled guilty and was sentenced to 14 days. The landlord then  evicted Xavier and his family due to his sex offender status and contacted authorities to tell them he no longer lived at her residence. While Xavier now understood he needed to maintain an accurate registration with Washington State, he believed he had up to 14 days to report his change of residence. In fact, notification was required within 72 hours. Therefore, in May 2008, Xavier was charged with a second count of failure to register. During sentencing, he explained he had trouble reading and understanding the law, which is why he failed to register within the prescribed time. The Court agreed Xavier’s failure to register was indeed a mistake, and that he had intended to register. Perry was given an exceptional sentence of six months, which was below the standard range for the charges.

The Investigation – New York State 

The registration requirements at issue in Washington stemmed from crimes for which Perry was wrongfully convicted in New York. This investigation began on January 18, 1991, when a woman flagged down a police officer and reported she had been abducted and raped. At the hospital, she said three men kidnapped her and drove her to Central Park, where she was repeatedly raped and sodomized. She claimed the attackers were drug dealers, who were trying to find her boyfriend to collect money he owed them.

She subsequently identified 21-year-old Xavier, 19-year-old Gregory Counts, and a third man as her attackers. Xavier was arrested on January 22, and Counts was taken into custody on January 26. The third man was never arrested, although police knew his identity, and he was allegedly driving the car used during the attack. Police did not seize or search the car for fingerprints, semen, hair or other evidence even though they knew where to find the car, and the woman told them much of the sexual assault happened inside the car. 

On the day the woman made her false report, her boyfriend was arrested for shooting Xavier in the foot. The shooting had occurred a few months earlier after Xavier, Counts, and the third man beat up the boyfriend for a drug debt. The charges against the boyfriend for shooting Xavier were eventually dismissed.

Before trial, DNA tests on sperm in the woman’s underwear excluded both Xavier and Counts. When the prosecutor told the woman about the test results, she claimed she had unprotected sex with her boyfriend just before she was abducted and raped, despite having told the doctor at the hospital they had used condoms. As a result, the prosecutor argued to the jury that the sperm in the woman’s underwear belonged to her boyfriend.

When Xavier and Counts went to trial in March 1992, the woman failed to appear. She was located and brought to court on a material witness warrant, where she identified them as her attackers. The woman gave a graphic account of being kidnapped and sexually assaulted by the three men after she refused to give them her boyfriend’s location.

There were many inconsistencies in the woman’s account, including where the incident took place, varying accounts of the number of times each attacker assaulted her and different versions of the manner of the assaults. She also said Counts, who was 6 feet 4 inches tall and weighed 260 pounds, repeatedly punched her face. The physician who examined her at the hospital, found no injuries or trauma to her face or body.

Regardless of these inconsistencies, Xavier and Counts were convicted of rape, sodomy, and kidnapping. Counts was sentenced to 16 to 48 years in prison. Xavier was sentenced to 7 to 14 years in prison. Their convictions were upheld on appeal. 

Post-Conviction and Exoneration

Xavier’s time in prison was extremely difficult. He was incarcerated in some of the most notoriously difficult jails and prisons in the United States, including Rikers Island and Sing Sing Correctional Facility. While incarcerated, Xavier was jumped, brutally beaten, and assaulted. He sustained a head injury that affected some cognitive function including his ability to read and comprehend information.

In November 2001, following 11 years of incarceration, Xavier was released on parole. After successfully completing 5 ½ years on parole in New York, Perry moved to Vancouver, Washington, to live with his wife and children. He worked at McDonalds, attended culinary school, built homes and apartment buildings with construction contractors, started his own landscaping business, and was a floor manager at a furniture store. 

When Xavier was exonerated in New York in 2018, the two felony convictions in Clark County, Washington for Failure to register remained on his record. 

In 2019, the Washington Innocence Project contacted the Clark County Prosecuting Attorney’s Office, urging them to remedy the unjust convictions, which were founded on crimes that never occurred. On June 6, 2019, based on a motion jointly filed by the Washington Innocence Project and the Clark County Prosecutor’s Office, the Court vacated the two felony convictions and dismissed the charges.

Xavier now lives in Portland, Oregon and remains close with his WashIP community and with his family.

Continue reading for more information about Xavier’s wrongful conviction and exoneration in New York State.

Xavier’s New York exoneration came about after Gregory Counts wrote to the Innocence Project in New York asking for help. In 2011, they agreed to investigate his case and New York’s Office of the Appellate Defender joined with them to represent Xavier. Evidence from the sexual assault kit collected in 1991 was retested using DNA technology that was unavailable at that time. 

In 2015, a male DNA profile identified in sperm samples recovered from the woman’s underwear excluded Perry and Counts. The profile was submitted to the FBI DNA database and matched the profile of a man who was about 40 years old in 1991, when the woman said she was raped. This man had died in 2011.

Based on the new DNA test results, the New York District Attorney’s Office Conviction Integrity Unit opened a collaborative reinvestigation of the case with Count’s and Xavier’s attorneys. After initially denying any knowledge of the man whose DNA was found in her underwear, the woman admitted she had smoked crack with a john all day, had sex with him in exchange for money, but had not been paid. The woman said her boyfriend would make her sell herself for sex and would beat her when she came home without money. She admitted lying about being raped because she feared her boyfriend’s abuse.

In February 2018, the third man who was named by the woman in 1991 was located. The man said he never raped anyone and that he had spent much of his life fearful of being arrested for a crime he did not commit. He said that he had a brown car (the car the woman said was used to kidnap her) and it was inoperable at the time. The man confirmed that he, Xavier, and Counts had beaten up the woman’s boyfriend for failing to pay a drug debt, and that the boyfriend had shot Perry in the foot after the confrontation.

In April 2018, a prosecutor and an investigator again met with the woman in her home. She recalled how Xavier and the two others beat up her boyfriend. She claimed they threatened to kill them both. Her boyfriend said “their problems would go away” if she accused them of raping her. She said her boyfriend planned it all out and told her what to say because he owed drug money to the three men.

On May 7, 2018, the New York County District Attorney’s Office, along with Xavier and Count’s attorneys filed a joint motion to vacate their convictions and dismiss the indictment. The Court vacated the convictions and dismissed the charges.