Houston Chronicle

Tests find HPD's lab data wrong once again
New DNA exam indicates errors in 1997 murder case
Houston Chronicle By Roma Khanna
February 16, 2005

DNA tests implicating a Houston man in a 1997 murder were inaccurate, an independent lab has found, marking a second case in which such analyses by the Houston Police Department crime lab were altogether wrong.

The lawyer representing Robert Lee Wallace said Tuesday that his client pleaded guilty in the case only after being confronted with DNA evidence showing the murder victim's blood on his clothes. The new tests discredit that finding.

The last time an error of this magnitude came to light, it led to the exoneration of a man serving a 25-year sentence for rape, Josiah Sutton.

Both the Wallace and Sutton cases were processed by former HPD analyst Christy Kim, who retired from the department after problems with her work surfaced two years ago.

Assistant District Attorney Marie Munier, who oversees the ongoing effort to retest hundreds of cases originally analyzed by HPD's troubled crime lab, acknowledged the flaws in the tests on Tuesday.

"Previously, they included the victim, which was incriminating, and now they have excluded him," Munier said. "Looking at this (new report), I don't know how she would have said that."

Wallace's lawyer Patrick McCann said his client, who is serving a 60-year sentence, pleaded guilty to avoid prosecution on a capital murder charge.

"In capital cases, the state can squeeze you into a life plea to avoid the very real possibility of a death sentence," McCann said.

McCann said he will weigh Wallace's legal options and likely will file a new appeal. As in other cases in which testing problems have been found, Munier has ordered the new findings be reviewed by a scientist who will compare the original forensic conclusions.

Wallace linked

Bernard Pivonka, a well-known mechanic who specialized in foreign cars, surprised a burglar in his Heights-area home July 10, 1997. The 63-year-old was beaten to death and his wife, Lillian, received minor injuries but survived.

Wallace, 42, was linked to the crime that day after police found someone with the Pivonkas' VCR. That person said the VCR came from Wallace, and Lillian Pivonka identified him.

During the course of the investigation, Kim analyzed several pieces of evidence for DNA, including camouflage pants and two shirts belonging to Wallace.

She identified on the samples a mixture of blood that she reported came from Pivonka and an unidentified person. At the time, according to HPD's lab reports, she did not have a sample of Wallace's DNA to compare to the evidence.

The new DNA tests conducted by Orchid Cellmark, one of three labs retesting HPD's DNA work, found that the mixture contained Wallace's own blood and none from the victim.

"At this stage, it is hard to say what went wrong," said Bill Thompson, a professor at the University of California at Irvine and a DNA expert, "but it is absolutely necessary that the original underlying lab results be studied to get to the bottom of this catastrophe."

Michael Pivonka was upset to hear about the forensic error in his father's case but said the DNA was not essential to convicting Wallace.

"The DA had a slam dunk, and the DNA was just the icing," he said. "I do not feel he was unfairly convicted."

Wallace's friends and family greeted the news Tuesday with caution. His grandfather, Albert Thomas, said little.

"Robert was not without his problems," said Toni Williams, a longtime friend of the Wallace family. "But if there was a problem with the way the case was presented, he deserves another chance."

Kim's work has received considerable scrutiny since problems with HPD's DNA analyses first were exposed more than two years ago.

Most notably, she performed tests that led to the wrongful conviction of Sutton, who served more than four years in prison for a rape he did not commit before Kim's work was discredited. He was released from prison in March 2003 and received a pardon more than a year later.

Efforts to reach Kim at her home Tuesday were unsuccessful.

The cases against both Sutton and Wallace received new scrutiny after problems at HPD's crime lab came to light and the Harris County District Attorney's Office launched a massive effort to retest more than 400 cases.

With more than 300 retests complete, the majority have supported HPD's original conclusions. In more than 50 cases, however, independent labs have encountered problems such as inaccurate statistics or the inability to replicate the original findings. More tests are under way on many of those cases.

Only two of the retests, in the Sutton and Wallace cases, have entirely discredited HPD's findings.

In Wallace's case, McCann said, the plea agreement and the original charge against his client must be revisited.

"Whenever you see an original indictment as a capital and then a plea, you have to consider why," he said. "When the state can allege capital murder, it gives them tremendous leverage because if you're in this county and they hit you with a capital murder charge — they will get death on cases that are flat ridiculous."

Other evidence

The assistant district attorney who handled Wallace's case, Ira Jones, said he could not recall it. Munier noted that the person with the VCR and Pivonka's wife both identified Wallace.

"The other evidence of his guilt can't be overlooked," she said.

Witness identifications also played a role in Sutton's case and the case of George Rodriguez, a man released from prison after 17 years when new tests exposed errors in HPD's serology tests in his case.

Munier added that additional retests may be performed on other materials from the Wallace case.

"But it won't change the fact that on the retests they can't find the victim's blood and on the original test they said they did," she said.

Junk Science
Truth in Justice