Blood brothers

It was a chilly April night in 2001, and on the second floor of this house, a young woman unwound for bed as she usually did.

Her habit? A small dose of “Letterman” before drifting off to sleep.

Living with male and female roommates,  the woman “Kate” didn’t worry much about security even though she lived in the heart of big-city Boston, in the blue-collar Dorchester section.

But around midnight, she was startled awake by a nightmare—a man she’d never seen before, standing at the foot of her bed. And this nightmare was real.

Kate didn’t know it at the time, but just eight months earlier and a few blocks away in Dorchester, there had been another violent sexual assault.

This woman, Jennifer, also had been watching television and had fallen asleep.  A stranger crept through her window and raped her in her own living room. 

This is a story about two rapes and one trial—a trial that would change four lives forever. When the case was finally over, it would tear apart two young men—once linked by the closest of bonds; while forging a life-long sisterhood between Kate and Jennifer—two determined yet decidedly different young women.

Kate isn’t her real name, but one she asked us to use. She says when she was interviewed by police in the early-morning hours after her attack, she couldn’t identify her rapist—other than to say he was a tall, thin light-skinned black man wearing a long-sleeved shirt and a baseball cap.

During her rape, semen, containing tell-tale DNA, got on her nightshirt. The rapist walked out with the nightshirt, the evidence ...

But it turned out he missed some of the evidence. Police found semen on a pillowcase, and it turns out, it matched DNA recovered from that other rape—Jennifer’s rape—eight months before.  Police now knew they were searching for a serial rapist. 

But who was he? While police had tantalizing DNA, they didn’t know whose it was, because it didn’t match anyone in their computer system. Then, ten weeks after Kate’s rape,  in July 2001, police caught a big break.

That Saturday night, a third Dorchester woman heard a rustling at her window and went outside to investigate.

Vulnerable because she was now face to face with a stranger—a stranger trying to climb through her window.

The man ran away.

But just an hour later—an unbelievable, terrifying moment—she saw that the stranger had returned, and once again was trying to jimmy her window. 

A caravan of police cars, blue lights flashing, arrived almost immediately, silhouetting the man still at her window.

Police arrested 27-year-old Darrin Fernandez, who also lived in Dorchester, for attempted breaking and entering.  What’s more, he’d also tried to break in to the house next door. 

Was he a desperate thief or something more sinister?  Police found traces of blood containing DNA on a window sill where the man had cut himself trying to get in – DNA  which proved to have serious repercussions for Fernandez. 

Police felt sure they’d nabbed their serial rapist. That’s because a DNA match ordinarily singles out the only person in the world with that specific scientific signature. And yet, there was something quite unusual about this blood evidence—something police had never seen before.

In March 2006, the case of the commonwealth of Massachusetts vs. Darrin Fernandez began in a Boston courtroom.

The victim was Kate, the woman who’d been raped in her second-floor Dorchester apartment five years before.

The defendant was charged with seven crimes, including 3 counts of rape and two for indecent assault and battery.

In his opening argument, Prosecutor David Deakin emphasized behavior and conduct because, in this extraordinary case, he knew that DNA—usually a courtroom version of a slam-dunk—would only take him so far.

The jury didn’t know it, but this would be the third time Darrin Fernandez had been tried for allegedly raping Kate. Both other trials had ended in hung juries.  Indeed, reportedly as many as 8 of 24 jurors hadn’t been willing to convict.

Defense attorney Robert Zanello hoped a third jury would be just as uncertain, in which case perhaps the  prosecutor would decide to throw in the towel.

The prosecution’s case began in a straightforward manner with the powerful and emotional testimony of the rape victim herself.

Kate did not want her face visible during the trial. But since then, she’s changed her mind, allowing us to see her fully.

Turned out, sweet-talking would be just part of his M.O. Another element --  forcing her to have oral sex.

Kate said it had been pitch-black in her room, and she’d only caught the briefest glimpse of her attacker when she switched on the light as he fled.  Her description of her assailant was limited, as his cap and long-sleeve shirt prevented her from identifying his hair or any distinguishing marks.

In the two previous trials, Kate’s testimony and all the forensic evidence gathered wasn’t enough to gain a conviction. So the prosecutor knew he needed something more.

“Something different” for trial no. 3 was a new blockbuster witness—a woman who hadn’t appeared in the first two trials—a woman the prosecutor hoped  might convince this jury to convict. 

During a pivotal preliminary hearing, the prosecutor first managed to persuade the judge to allow her testimony—arguing it would show a strikingly similar pattern of behavior.  Now the jury would hear from a second rape victim—a woman  whose rapist had the identical DNA to the man who raped Kate.

This is the other victim you heard from earlier. As you’ll remember, Jennifer had been raped in her own living room in August 2000, eight months before Kate’s attack.

On her first day of testimony, Jennifer requested that her face be concealed, but changed her mind to reveal herself the next day… and later in an interview with dateline.

Jennifer testified that she was awakened that fateful night by a man forcing himself on her.

Like Kate, Jennifer had experienced that same terrifying combination of intimidation and sweet-talk.

But Jennifer Hogrell would exact a measure of revenge because she was able to specifically identify Darrin Fernandez in ways Kate could not.

Jennifer was able to offer key details about her attacker to a police sketch artist.

Unlike Kate, she’d seen him without a hat and testified that his hair was short. What’s more, he’d worn a short-sleeved shirt, and she remembered an even more distinctive feature—a tattoo on his arm, though she couldn’t read what it said.

Then, in a dramatic moment, the prosecutor had Darrin Fernandez display his arm to Jennifer and the jury.

After the testimony of these two women, it certainly seemed like an open-and-shut case. But as you’ll see, it was anything but.

That’s because of another man who is the spitting image of the defendant ... his identical twin, Damien—a perfect match all the way down to their identical DNA.

Possible  because of a confounding DNA oddity. The DNA evidence in this case, instead of being unique to just one person in the world, matched “two” people—the defendant, Darrin, and his twin brother, Damien.

DNA indicated one of them was the rapist, but it couldn’t say which one.

This defense theory would pit brother against brother in a tense legal face-off—sort of a courtroom version of Cain and Abel.

On his way to testify, Damien walked past Darrin, seated at the defense table. The twins eyed one another, and in that shared glance, only they knew what the jury would have to decide: Which one was really the rapist?

Darrin and Damien Fernandez grew up in the Dorchester section of Boston.  It was a hard-scrabble existence made even more daunting when they were teenagers, and lost their mother to cancer. The boys’ father had long-since been out of the picture, and they bounced from home to home, increasingly finding themselves running up against the law. Even though the twins were close, they didn’t shy away from using each other’s identity when they got in trouble. But this time, the trouble was far more serious—rape.

After opening pleasantries, Defense Attorney Robert Zanello immediately went on the offensive, launching a full-scale attack on the witness, Damien Fernandez, treating him as if he were the twin on trial.

Zanello was referring to Damien’s cooperation with the police, following the arrest of his brother—cooperation the defense characterized as self-serving and manipulative.

Putting Damien on the defensive and suggesting that he could be the evil twin were key parts of Zanello’s strategy, a strategy that had worked in two previous trials which ended in hung juries.

And remember, all the defense needed was just one uncertain juror to again thwart a conviction.

Defense Attorney Zanello then upped the ante, going after Damien’s character and credibility.

While Damien looked like he might be going to work, sporting a green shirt on one day of his testimony and a blue shirt on the other, in fact, what the jury didn’t know was that the witness had been escorted by armed guards from county jail. He’d been locked up for probation violation following a disorderly conduct arrest.

Just as revealing about Damien’s character, Zanello said, was how he’d repeatedly thrown his own brother overboard when it suited his purpose— like the time Damien got involved in a traffic accident and pretended to be brother Darrin so he wouldn’t get in trouble.

And then there was the time Damien scammed his brother by signing for Darrin’s paycheck.

But did that make him a rapist? Remember, it was the defendant, Darrin and not his brother, who dripped DNA blood evidence on a  window sill the night he was caught trying to break in to homes in Dorchester, just months after the nearby rapes of Jennifer and Kate.

While the defense worked hard to portray the twins as a matched set— the brother as likely to be the rapist as the man on trial— the prosecution focused on noticeable differences in the way they looked around the time of Jennifer Hogrell’s rape in 2000.

Remember, when Jennifer testified earlier, she said her rapist did have a tattoo on his arm.

Jennifer also testified that her rapist’s hair was short.

And to back up this testimony, the prosecutor displayed this photo of Damien. Clearly, he’d had long hair back then.

Then the prosecutor put up a photo of the defendant for comparison.

Both pictures were taken around the time of Jennifer’s rape.

For the prosecution, this was a dramatic demonstration that only the defendant—the twin with short hair—could have been the rapist.

And as for that conversation twin brother Damien had with the police, which the defense attorney called manipulative, the prosecutor said he behaved like a model citizen.

Later, when he learned that DNA matching his and his brother’s was found at two rapes, Damien wrote a letter to a Boston police detective, demanding a thorough investigation.

But the defense attorney contended that Damien’s letter actually was the work of a smooth operator, a pre-emptive strike to keep the focus on his brother Darrin, the accused rapist.

But the prosecutor maintained, no matter how much Damien wanted to prove his innocence, it still wasn’t easy to testify against his own flesh and blood.

So it had come down to this: Had the prosecution proven beyond a reasonable doubt that the twin on trial, Darrin Fernandez, was the guilty one?

Or had the defense again raised enough doubt over which twin was the rapist to avoid conviction one more time?

Finally, a jury would have to decide—and this jury was unusual. It had been granted a unique opportunity to play Perry Mason.

The case of Darrin Fernandez featured the bizarre twist of twin brothers, in effect, accusing each other of being a rapist.  But it also had another highly unusual aspect.

Jurors would have the opportunity to satisfy their curiosity in open court. Under Massachusetts law, the presiding judge decides whether to allow jury questions, and Raymond J. Brassard is one of the few judges who does solicit them.

One of those questions was a stunner. In the three different trials, it had never occurred to any of the attorneys to ask the simple question that one juror asked twin brother, Damien.

Since the brothers’ DNA was identical, the prosecution had to find key details that differentiated defendant Darrin from his twin, Damien—like hair length and a tattoo. Now, an astute juror found one more difference—Damien’s speech was slurred.

And why was that important?  Remember, each rape victim heard her attacker’s voice clearly and never mentioned slurred speech.

Now it was the defense’s turn to benefit from a jury question.

An inquisitive juror was about to challenge the prosecution’s strongest witness, Jennifer Hogrell.

But first, some background: earlier, the defense had questioned Jennifer’s recollection of that all-important tattoo.

But then it got worse for the prosecution’s key witness.

In a stunning revelation, Defense Attorney Zanello brought out that Jennifer hadn’t actually remembered that tattoo until nearly three years after her rape.

With an opening to now challenge the previously unshakeable Jennifer Hogrell, the defense planted the idea with the jury that Jennifer’s  delayed memory,  in itself, might have been planted to better make the prosecution’s case.

All the more surprising, the defense argued, because Jennifer is a tattoo aficionado, with five of her own.

And it seems to have also bothered one member of the jury. Just listen as the judge reads this skeptical question.

How could she possibly forget something so important for so long? Would that undermine Jennifer’s credibility with the jury? And would the juror who asked that question vote against conviction?

Now, after a two-week trial, the fate of defendant Darrin Fernandez was in the hands of a third jury.

For two twins and two victims—now linked forever—would there finally be a decision in this extraordinary case?

It was judgment day in a Boston courtroom, March 22, 2006 -- nearly five years since the woman you know as Kate was raped by one of two twin brothers, according to DNA evidence. But that DNA evidence couldn’t determine which one did it.

Kate has now moved away from Boston, away from the scene of the crime. She did not come back for the verdict, but Jennifer Hogrell, the other rape victim, had a front-row seat, just behind the defendant.

And while Defense Attorney Zanello and Defendant Darrin Fernandez anxiously waited for the jury’s decision, Prosecutor Deakin and his key witness shared an embrace.

Would hearing from Jennifer, who hadn’t testified in the previous two trials, help Prosecutor Deakin win a conviction after two hung juries? Or, would her story about that tattoo, three years later, damage her credibility beyond repair?

Defense Attorney Robert Zanello was nervous as well. Had he created enough doubt for just one juror about which brother was the evil twin?

Throughout the trial, Darrin Fernandez was stoic. But now, there were flashes of what looked like concern— perhaps fear— on his face.

The court clerk read the charges for the jury forewoman to answer.

Jennifer Hogrell, who’d poured her heart and soul into this case—another woman’s case—exploded into tears as one guilty verdict after another was read out.

And her happiest day?

In 2003, the day the same defendant was convicted of raping her. These jurors were never told about that conviction, though they heard Jennifer’s powerful account of that rape.

Meanwhile, Kate received the news over the telephone—guilty on all seven counts.

What about Damien, the defendant’s brother, the twin whose identical DNA made him a target in this case?

As for how the now twice-convicted rapist, Darrin Fernandez, felt about a defense strategy that turned his brother into a scapegoat?

Darrin Fernandez did not take the stand in his defense, but now he would have a chance to be heard in a pre-sentencing statement in open court.

And his angry and defiant words would give his victims a window into the heart and mind of a rapist.

Although she wasn’t in court for the verdict, Kate did come back to Boston a week later for the sentencing of Darrin Fernandez.

There she met up with Jennifer Hogrell for an emotional hug, a victory hug.

Two different personalities and Jennifer, bold and outgoing ... Kate, shy and private.

Seated together in the front row at the sentencing hearing, both women said they were 100 percent certain the right twin was convicted.

In addition to the evidence, Jennifer says she was struck by something that happened during her own rape trial in 2003. She says she was sitting outside the courtroom with her baby daughter when who should come over, but of all people, Damien, the brother of the man who raped her.

Meanwhile, Kate says she gained additional reassurance, ironically, from Darrin himself ... From his pre-sentencing statement to the judge.

Jennifer Hogrell told us that testifying in Kate’s trial has helped in her continuing recovery.

As for Kate, she too is recovering, but can’t escape the stark memories of her attack.

Darrin Fernandez was sentenced to 15 to 20 years in prison for raping the woman identified in our story as “Kate.” That’s tacked onto the 10-to-15 year sentence he’s already serving for Jennifer Hogrell’s rape.