Houston Chronicle

March 28, 2003, 10:01PM

Lab chief's testimony in 3 cases questioned

Court transcripts show HPD work was wrong

Copyright 2003 Houston Chronicle

The head of the DNA division of the Houston Police Department's crime lab has offered testimony in at least three cases that has later turned out to be wrong, according to court transcripts.

The testimony is the latest example of questionable work at the crime lab, where an independent audit has shown sloppy science, undertrained staff, a leaky roof and numerous other problems. Dozens of criminal convictions are under review.

During criminal trials in cases involving DNA, HPD lab workers routinely testify as expert witnesses for the prosecution.

"They intentionally mislead," said Dr. Elizabeth Johnson, the former head of the DNA lab at the Harris County Medical Examiner's Office who now often works as a consultant for criminal defense teams. "And in all the cases I've been involved in, they always mislead in favor of a conviction."

Jim Bolding, the DNA chief of the crime lab, declined to talk about his testimony. He deferred to HPD spokesman Robert Hurst, who did not comment, citing the department's investigation of the lab, and said crime lab employees are not free to speak with the media.

Jaime Garcia was tried on charges of sexual assault in February 2002. Prosecutors said Garcia assaulted a woman outside a nightclub where the two had been drinking. Key to the prosecution's case was the HPD's crime lab analysis of semen samples taken from the woman's clothing and body. Garcia maintained he and the woman never had anal sex, as she claimed.

When Bolding took the stand, things did not look good for Garcia.

Bolding told the jury that the HPD lab had tested DNA in the case. The results of those tests, he said, showed that Garcia's DNA had been found on the woman's clothes and inside her body.

But while preparing his defense of Garcia, attorney Matt Hennessy began looking for the original DNA test strips that were used in the investigation -- evidence that Hennessy says he was told had been destroyed. However, the test strips eventually turned up in the police property room, and Johnson analyzed them for Hennessy.

Hennessy said he was amazed by what the test strips revealed.

"When Libby (Johnson) opened up the box and finds the test strips, she looks at the one for the anal swab, and it says negative," said Hennessy.

The negative finding meant Garcia had not penetrated the victim anally.

Hennessy questioned Bolding about it on the stand. Bolding expressed surprise at the evidence analyzed by Johnson but did not explain his earlier contention.

Garcia was acquitted. Hennessy believes the discovery of the negative anal test strip played a large role in the jury's decision.

"If we had not been able to show that (Bolding) was either lying or incompetent, I think the jury almost absolutely convicts (Garcia)," said Hennessy, adding that he doesn't know if Bolding was intentionally misstating the facts or not. "But my fear is that this is happening to other people."

In March 1998, Derrick Leon Jackson was sentenced to death for the murders of two Houston Grand Opera tenors. The major piece of evidence linking Jackson to the 1988 killings was a bloody fingerprint found on a door in the singers' apartment.

At the time of the murder, the HPD did not use DNA testing. It did, however, test the fingerprint to determine blood type. At Jackson's trial, Bolding testified that, in his opinion, the blood on the print was Type B, the same as Jackson's.

But Bolding recanted under cross-examination by defense lawyer Charles A. Brown Jr.

"You didn't have any blood types that you could be conclusive with in 1988, is that correct?" Brown asked.

"The blood types that were present were inconclusive primarily because they were mixtures or they gave off more than one type," Bolding conceded.

"So you couldn't be conclusive about what was there at that time, is that correct?" Brown said.

"That's correct," Bolding said.

Nevertheless, Jackson was found guilty and sent to death row, largely because the fingerprint, regardless of the blood type, was his.

Bolding also testified about the quality controls in place at the crime lab.

In May 2002, Harry Bellaire was sentenced to probation for sexual assault. He is appealing his conviction.

Bolding was called by the prosecution as an expert witness and was asked if the the HPD crime lab followed FBI guidelines.

"Yes, we do," Bolding answered.

"And you have done that for some time?" inquired assistant district attorney Kevin Petroff.

"Yes," Bolding answered again.

Seven months later, however, an independent audit of the HPD crime lab would reveal the lab does not follow most FBI guidelines and showed a lack of quality control. The audit forced the retesting of DNA evidence processed by the lab in at least 68 criminal convictions, including 17 death row cases. The FBI is currently considering the possibility of terminating HPD's access to its national DNA database.

Bellaire's attorney, Will Outlaw, believes most jurors have little knowledge of what DNA actually is. Therefore, he says, jurors give great credence to the testimony of purported DNA experts.

"After hearing maybe an hour or two of testimony about how sophisticated and accurate the testing process is, and all of the steps they've gone through by the lab personnel, without really understanding the concept of DNA, they understand the very simplistic notion that `it's a match,' " Outlaw said.

Earlier this week during a legislative hearing that focused on the crisis at the crime lab, Houston Democratic state Rep. Harold Dutton, speaking in general terms, stated that if HPD crime lab employees have given false testimony, they should face criminal charges.

"I think if people got up on the stand and lied," said Dutton, "we have a name for that in Texas, and that is perjury."

Chronicle reporter Roma Khanna contributed to this story.

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