We had hoped this lame theory of prosecution had been put out to pasture, but it's being raised this week in Miami. In their book, Actual Innocence, DNA gurus Barry Scheck and Peter Neufeld call it "the unidentified co-ejaculator" theory of prosecution: If new DNA testing excludes the defendant, the prosecutor claims the defendant is still guilty, he just didn't ejaculate, and there must have been more than one person who had sex with the victim--even though they can't identify the second perpetrator.

Here's the latest use of the theory, in which DNA tests have cleared a man in jail since 1983 for a rape of an 11 year old. Prosecutors say all the tests show is that the 11 year old victim had consensual sex earlier in the day with someone else.

... in court papers filed last week, Rundle's office argues that the DNA test results are irrelevant because the state never claimed the semen samples taken from the victim came from McKinley. The state says McKinley was caught by police in the act of raping the victim, that he never ejaculated and that the semen came from another male with whom the 11-year-old had had "consensual" sex earlier that day.

"The fact that another person's DNA was found in the victim's vaginal swabs does not establish that the defendant did not commit a sexual battery," argue Assistant State Attorneys Michael Gilfarb and Penny H. Brill in the motion. "It only provides, as the defense already knew, that the victim had sexual intercourse with someone else, sometime prior to the sexual battery."

However, the detective at trial 20 years ago testified that there was semen in the girl's underwear which was "consistent with" defendant Richard McKinley's blood type.

McKinley testified that he had seen the girl at an arcade that night. But he denied assaulting her. He said he was urinating in the alley when approached by the police officers and started running because he didn't know what was happening.