Houston Chronicle

March 14, 2003, 9:43PM

End this DNA debacle, establish an independent committee to review questionable cases

By PETER NEUFELD and BARRY SCHECK

Somebody needs to police the Houston Police Department crime lab, and it should not be the Harris County District Attorney's 's office, which seems to have tolerated shoddy science in that lab for years. Houston's unaccredited crime lab has been shown to be riddled with serious and systemic problems ranging from lab contamination to the gross incompetence of lab staff and supervisors. Josiah Sutton is the first proven casualty of this very broken system. Sutton was convicted and served four and a half years in prison for a rape he did not commit, before he was cleared by new DNA testing last week and released.

In the Sutton case, the lab misidentified the source of semen found at the crime scene and a lab employee offered misleading testimony at trial that semen found on the victim was a match to Sutton. If there had been adequate disclosure of the underlying scientific data, the defense lawyer may have been able to discover these problems at trial. Unfortunately, Texas criminal discovery laws rarely operate to provide meaningful pretrial disclosure of such scientific data. One of the jurors who convicted Sutton now says that he would not have done so but for the DNA evidence.

The DNA analysis that cleared Sutton was conducted by Identigene, a private lab that had comparatively little experience in forensic testing. Identigene's analysis found that there were two attackers, neither of whom could have been Sutton. That was enough evidence to secure Sutton's release.

As this case illustrates, the importance of DNA evidence cannot be overstated. The simple truth is that often DNA evidence will trump other, less reliable evidence. When handled, analyzed and interpreted correctly, DNA evidence works to exclude the innocent and convict the guilty. But when the same evidence is handled and analyzed in shoddy lab conditions and by incompetent lab staff, the consequences can be dire. One consequence is that the innocent are convicted. But another consequence is that the real perpetrators go free and continue to commit crimes.

That is why it is so important that there be a comprehensive and independent investigation of all cases on which the HPD crime lab worked. But instead, the district attorney's office is conducting the review and deciding which cases to retest.

The problems with such a review are manifold:

·First, asking the district attorney's office to review cases it has prosecuted creates the appearance of a conflict of interest and undermines the public's trust in our criminal justice system.

·Second, in order to do their job correctly, the reviewing prosecutors are going to have to look at the cases with a dispassionate eye and, when appropriate, admit that their evidence was flawed and that their crime lab witnesses made egregious errors or knowingly proffered false testimony.

·Third, this approach takes hundreds of hours away from prosecutors who would otherwise be trying cases and helping get dangerous people off of our streets.

An independent audit oversight committee needs to be established to review these cases. This is the only reasonable response to the gross errors and misconduct that have been established. This is the model major hospitals use whenever a serious medical error is revealed, and is exactly what is done in almost every other institution in America where life, health or safety is at stake. In a world-class city like Houston, we would not tolerate errors of this kind in these other institutions. The integrity of our criminal justice system demands no less.

The committee need not be large, but at a minimum should include a retired judge, a retired prosecutor or a prosecutor from another jurisdiction, a law professor with extensive criminal defense experience, and a scientist from the medical community, familiar with audits when acts of misconduct have been uncovered.

We can't ignore the mounting evidence of problems in our criminal justice system, especially when innocent people may be in prison or on death row because of them. Nor can we pretend that these problems are isolated to Houston. Let's get serious about reviewing cases handled by the HPD crime lab and let's create a state oversight body to regulate crime labs across the state. Because if we don't, guilty people will continue to go free and innocent people will continue to be convicted. Just ask Josiah Sutton.

Neufeld and Scheck, based in New York City, are cofounders and directors of the Innocence Project, a national nonprofit legal clinic devoted to freeing the innocent.


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