SALT LAKE CITY (ABC4 Utah) – Eugene McNair was born with fetal alcohol syndrome.

His family said their mother didn’t take care of herself during her pregnancy. She died when McNair turned 13 years old. His older sister Debra Brown said McNair’s step-father abandoned him.

“The neighbors in the projects was taking care of him,” Brown said. “I guess things just got worse. So, they called my aunt and told her that they need to come and get him.”

McNair was homeless and living on the streets of Los Angeles when his aunt called for him.

According to court records, McNair attended local schools, was bullied but a group of students often came to his rescue. By the time he dropped out, McNair could not read or write.

“He was diagnosed … as mildly mentally retarded,” said his current attorney Ann Taliferro. “That diagnosis has been changed in the current literature to intellectual disability.”

In 2006, McNair was arrested for raping a 16-year-old girl at a Salt Lake City apartment. There’s no witnesses, just her word against his. McNair tried telling that to police when he was interviewed at the police station.

“This girl is lying out of her teeth,” McNair could be heard on the video recording of the interview with police. “OK? I was out there smoking a cigarette.”

But a medical report showed the alleged victim had a “bluish bruise on her thigh, “evidence of trauma to the vaginal area” and there “appeared to be intercourse.” The report also concluded there was “bruising near the vagina area.”

It was enough for prosecutors to file rape charges and eventually get a conviction against McNair.

“Mr. McNair is a dangerous sexual offender,” said Eril Riley, the attorney’s general solicitor general. “He may have some intellectual difficulties but that does not allow him to commit rape.”

A public defender was assigned to him. According to the court documents, public defender John West “strongly urged” McNair to plead guilty.

Months before the plea negotiations, McNair asked for a DNA test in hopes of clearing his name.

It was during discussions with West that McNair asked him about the results of the DNA test.
According to his current attorney, McNair was told those results would not help him. Ann Taliaferro considered it a big mistake on the part of the public defender.

“Not only was Eugene’s DNA not found in her vaginal area but he was specifically excluded from the DNA that was there,” said Taliaferro.

But the DNA report was never introduced as evidence. McNair pleaded guilty and was sentenced to a term of five years and up to life in prison.

While McNair’s in prison Taliaferro said he was finally diagnosed. His IQ was between 50 and 70. McNair had what’s considered an intellectual disability, according to today’s standards.

The attorney representing the state said McNair still had an understanding of what he was accused of.

“When you read his own statement at the sentencing hearing, if you were looking at that reading, his statement, it wouldn’t cross your mind he has intellectual difficulties,” said Riley. “He understands what’s going on. He apologizes to the victim. (He) sounds very reasonable and competent.

Taliaferro said his public defender abandoned him after he was sentenced leaving him on his own. She said McNair was unaware he could appeal, didn’t have a clue about results of the DNA report and more importantly, didn’t know there was a time limit to appeal.

A year passed and other inmates, known as jailhouse lawyers, learned of his case.

“They helped him,” she said. “They knew he was intellectually disabled and the gathered him around and several inmates helped him,” said Taliaferro.

The inmates filed a post-conviction appeal on behalf of McNair, but it was denied because the statute of limitations ran out.

Taliaferro said the inmates completed the petition about five months before the deadline. It was then sent to a contract attorney who is supposed to file the official appeal. Taliaferro said the contract attorney was a month too late.

She eventually took over the case in 2014 after McNair’s friends arrived at her office seeking help. Once again, she argued that the statute of limitations should be overlooked because of McNair’s low IQ.

The attorney general’s solicitor general is responsible for handling appeals from the district court. Riley disagreed that McNair had an intellectual disability.

“He may have difficulty understanding some of the details, but there’s no indication that he didn’t understand what he did was wrong,” Riley said.

She also said his previous attorney never declared that he was incompetent and needed to be evaluated. Riley also said McNair was on the sex offender registry for sex abuse. The offense appeared to have happened in 1986 according to the state’s registry. But the crime was not listed in McNair’s criminal history on Utah Court Exchange.

In 2016, a second more advanced DNA test was done and the state included those findings during one of the many appeals. The state claimed they had evidence that McNair was involved with the rape of the alleged victim.

“In both of those swabs (from vaginal area) they came up with a major profile that could not exclude Mr. Mcnair,” Riley said.

But McNair’s attorney said it was flawed because the alleged victim admitted to cleaning her private areas before the medical exam.

“There’s a whole slew of reasons or ways that DNA could have gotten there,” said Taliaferro. “And it’s also curious that there’s another male DNA there.”

She is also troubled by the alleged victim’s injuries in the original medical exam report.

“(There’s) no bruises, no scratches, no marks, nothing like that,” she said. “(There) are inconsistencies with her report of him forcibly holding her down, raping her for five minutes as she pushes and fights to get away.”

For 13 years, McNair has maintained his innocence. He refused to confess, even to the powerful Board of Pardons which can release him.

McNair blamed the public defender for all his troubles.

“I’m mad at him,” he said. “Disappointed because he should have done his job. The state don’t want to admit that they’re wrong. This has nothing to do with me. “

The truth as to what happened that night in the apartment remains on hold. It’s been 18 months since both sides argued their positions before the Utah court of appeals, but to complicate it further, the Utah Supreme Court must rule on a similar case before McNair’s can be addressed.