June 9, 2003

Prosecutions Are a Focus in Houston DNA Scandal

Harris County DA Rosenthal

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."