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Jan. 31, 2003, 10:33PM

Experts review case of convicted rapist

Scientists say DNA work by HPD lab shoddy

Copyright 2003 Houston Chronicle

The 1999 rape conviction of a 16-year-old boy, obtained with DNA evidence as its crux, has been called into question because samples were processed at the problem-ridden Houston Police Department crime lab.

Forensic scientists say the evidence against Josiah Sutton was handled so poorly that the lab more likely than not came up with incorrect results.

"The work is horrible," said Dr. Elizabeth "Libby" Johnson, who established the DNA laboratory at the Harris County medical examiner's office in 1992 and was hired by defense attorneys to review the evidence in Sutton's case.

Dr. William Thompson, a DNA expert and a California professor who also reviewed the evidence, said the lab's work was shoddy and that its scientists presented misleading evidence at trial.

"The testimony made it seem as if this was an exact match, and it was not," Thompson said. "In fact, this profile would have matched one in eight black men in Houston."

Sutton's case is one of hundreds under review after an audit by outside experts uncovered widespread deficiencies at the HPD lab, where DNA testing has been temporarily suspended.

The department is reviewing the lab's work and trying to determine who is responsible. HPD will ask private labs to recheck evidence in cases in which the accuracy of earlier tests is in question.

"We want the public to know we're not just sitting back, waiting to get hammered all the time here," Acting Police Chief Tim Oettmeier said Friday.

"When these cases are brought to our attention, we're acting as quickly as we can to determine what needs to be done, if anything."

Sutton, now 21, was convicted of the October 1998 rape of a woman taken in her car from her Houston apartment complex and raped by two men before she was dumped in a Fort Bend County field.

Five days later, the woman was driving down a street when she saw two people she believed to be her attackers. Police arrested Sutton and a friend, and they provided samples of body fluids for comparison.

When the results came back, Sutton was included as the possible assailant. He maintained his innocence but was convicted and sentenced to 25 years in prison.

Now, as the widespread deficiencies at the HPD lab have come to light, Sutton, his lawyer and DNA experts say he is the victim of faulty science.

"He has steadfastly professed his innocence," said Bob Wicoff, his lawyer. "My goal is to get him new testing and make sure the process is done properly."

Even prosecutor Joe Owmby, who is confident that Sutton committed the crime, said he became concerned when the HPD lab's deficiencies were uncovered.

"I was going through my cases in my mind and thinking about how many were DNA cases and how many were processed by HPD," Owmby said. "This is one that stuck out."

The forensic scientists said there were many problems with HPD's lab work in Sutton's case. Johnson noted the staff needed three tries to establish a "standard type" for the victim's DNA, which allows them to separate strains from another person.

"That is a red flag that something is wrong," she said. "Any lab could do that right the first time."

Another major mistake, cited in other cases under review, is that staff used the entire sample from the rape kit (four swabs) for tests, limiting the possibility for retesting, Johnson said.

"This is a huge no-no," she said. "Any competent person could do this with one-half of one swab."

Thompson, the DNA expert, said the mistakes went much farther than poor lab practices. He cited a semen stain on the back seat of the victim's car that a lab employee said was a mixture of fluid from the woman and her two attackers.

"That is just false," Thompson said. "It is a semen stain for a single other man that, assuming he was the other attacker, absolutely excludes Sutton. This is an outrageous misuse of scientific evidence."

Next week, the Harris County district attorney's office will continue addressing such problems. It will begin notifying defendants whose cases involved DNA tests by the HPD lab that the recent audit found problems with the lab's work. The accused, or in some cases their attorneys, will be notified by mail, said Assistant District Attorney Marie Munier, the felony trial bureau chief.

The painstaking research efforts were prompted by a KHOU-Channel 11 news report in November that questioned the crime lab's performance and whether innocent people were going to prison or guilty people were being set free.

Starting with the most recent cases, prosecutors will review every case in which the police lab examined DNA evidence. The review will go back years -- possibly to the early 1990s, when the lab began doing DNA tests regularly -- and will include cases by the hundreds, perhaps even far more than the 400 initially estimated, Munier said.

The district attorney's office is reviewing every capital murder case ending in a death sentence to see if it involved the police lab's examining DNA evidence. That review began this week and will involve about 150 defendants now on death row and nearly 55 people already executed, said Assistant District Attorney Roe Wilson, chief of the post-conviction writs division.

In cases where DNA was crucial in proving guilt, "we're going to request HPD to review the case and/or that evidence be retested," Munier said.

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