June 9, 2003
Prosecutions Are a Focus in Houston DNA Scandal
By ADAM LIPTAK
Harris County DA Rosenthal
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wo grand juries investigating problems in Houston's police crime laboratory
have widened their inquiry to include local prosecutors, asking about their
potential culpability for winning convictions with tainted evidence, people
involved in the investigation say.
Abandoning the usual deference that grand juries show district attorneys,
the Houston grand jurors have rejected the guidance of the prosecutor's office
in Harris County, which includes Houston, according to people close to the
investigation.
Those people say this reflects an awareness of a possible conflict
of interest that the prosecutors face in the scandal over the laboratory's
DNA unit, which was closed down in January after a state audit found widespread
flaws in its work, including sloppy record-keeping, misinterpreted data and
evidence contaminated by water from a leaky roof in the laboratory.
Grand juries operate in secret, supervised by judges, though the
indictments and occasional reports they issue are typically public. Ted Poe,
a district judge in Harris County who supervises one of the grand juries,
said the precise scope of the inquiries is therefore unknown.
"All we know is that two grand juries are investigating the DNA
lab here," he said. "Both are bringing in witnesses and both have not requested
help from the district attorney and both have not said why. It's very unusual."
Witnesses who appear before Texas grand juries are forbidden to
discuss their testimony. But the people called to testify , including journalists,
scientists and lawyers, suggest that the inquiry is wide-ranging.
Two witnesses, interviewed before they testified, described what
they understood to be the scope of the inquiry — which they said they expected
to include questions into the prosecutors' responsibility — and what they
intended to say to the grand jurors.
"In general," said one witness, William C. Thompson, a professor
of criminology at the University of California at Irvine who has studied the
laboratory's work, "they are looking into criminal misconduct in the crime
lab and in the prosecution of cases relying on evidence from the crime lab."
Professor Thompson testified before both grand juries on Monday and Tuesday.
Another witness, Barry Scheck, a founder of the Innocence Project
at the Benjamin N. Cardozo School of Law at Yeshiva University, testified
on Thursday before both grand juries. In an interview that morning, Mr. Scheck
said, "The grand juries are running away because the district attorney, they
realize, shouldn't be conducting this investigation in the first place because
he has such terrible conflict issues."
Through a spokesman for the Houston police department, Police Chief
C. O. Bradford and crime laboratory officials declined to be interviewed.
Charles A. Rosenthal Jr., the district attorney in Harris County, denied that
his office had acted improperly.
"We do not have a conflict," Mr. Rosenthal said in a recent telephone
interview. "If an expert comes in and says this is our opinion and a prosecutor
relies on it, the prosecutor has no reason to think the expert is wrong. If
I was sitting by his elbow when he did his tests, I couldn't tell you he
was wrong."
In April, the county's 22 criminal district court judges asked Mr.
Rosenthal to recuse himself from the investigation.
"It is apparent that employees of your office may be witnesses in
any grand jury investigation of the Houston Police Department Crime Laboratory,"
Debbie Mantooth Stricklin, the administrative judge for the criminal district
court, wrote to Mr. Rosenthal. "I hereby request that you disqualify yourself
from any grand jury investigation of this matter." Mr. Rosenthal declined.
The grand juries' investigations parallel those of an internal investigation
by the Houston police department, a review of some 1,300 cases by Mr. Rosenthal's
office and an inquiry by a committee of the Texas Legislature.
But none of these investigations have been entirely satisfactory,
legal experts said, and all have raised questions about trade-offs between
independence and effectiveness.
Can prosecutors fairly investigate the use of evidence in their
own cases? Are grand jurors or legislators capable of fairly making scientific
judgments? What sort of investigation is best suited for identifying crimes
or freeing those who are wrongfully convicted?
One prisoner, Josiah Sutton, was cleared in March after the DNA
that had been used to convict him of rape, based on tests by the Houston laboratory,
was retested.
On Wednesday, Chief Bradford announced that the internal investigation
of the laboratory would result in disciplinary or criminal charges against
nine people. Their names and the charges against them will probably be made
public this week.
It is not clear that grand juries are the best way to investigate
either scientific frauds or wrongful convictions, some experts say.
"Although I was impressed by the intelligence and good intentions
of the grand jurors," Professor Thompson said, "I am not convinced that a
grand jury investigation is the best way to address a crime lab scandal of
the type we see in Houston."
"They face a very steep learning curve about a wide array of technical
issues," he said. "In a better system, the grand jurors would be assisted
by a special prosecutor who has expertise in the substantive issues, or, at
the very least, by technical consultants who could assist them in propounding
questions to crime lab personnel, and in evaluating their answers. But no
such mechanisms are available under current Texas law. The only prosecutors
who can assist them are members of the Harris County District Attorney's office,
which has itself been implicated in the scandal."
Judge Poe said the grand jury he was supervising was up to the job.
"They are quick learners and have called experts to educate them on these
matters," he said.
David Dow, a law professor at the University of Houston who represents
Mr. Sutton, said the grand jury was inferior to an option rejected by the
local judges. Professor Dow and others had asked for the formation of a court
of inquiry.
"That would have been a far superior vehicle," Professor Dow said.
"With a court of inquiry, there still would have been a grand jury, but there
would also have been a special prosecutor."
In May, the grand juries heard testimony from two journalists: Anna
Werner of KHOU-TV, the television station that called attention to the laboratory's
problems in reports in November, and James Kimberly of The Houston Chronicle.
"They were starting their investigation," the journalists' lawyer,
Joel R. White, said of the grand jurors, "and they wanted to know how to do
it."
David Raziq, an investigative producer at KHOU-TV, said he could
not discuss what Ms. Werner told the grand jury.
On Thursday afternoon, Mr. Rosenthal described a visit he had paid
to one of the grand juries. It had not, he said, "had a prosecutor in there
until 10 minutes ago." He would not say which grand jury he was referring
to.
"I went to them today and told them we were going to ask for their
help in the investigation," he said, "and I told them we'll be back."
Asked about the status of the other grand jury, Mr. Rosenthal said
"they haven't asked" for assistance.
Judge Poe said that the grand jury he was overseeing "wants to operate
independently of the district attorney. They have made that very clear."
On Saturday, The Houston Chronicle reported that Mr. Rosenthal and
several of his assistants had been subpoenaed to testify before one of the
grand juries and that, in a letter, the grand jury's foreman had asked Mr.
Rosenthal to recuse himself from the investigation. Mr. Rosenthal again declined.
Judge Mary Lou Keel, who supervises the other grand jury, did not
respond to a request for comment.
Professor Thompson said he toured the crime laborabory with one
set of grand jurors on Tuesday.
"The roof is still leaking," Professor Thompson said. "Water dripped
on my head."
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