Houston Chronicle

March 10, 2003, 6:57PM

One Year Later:
Josiah Sutton Still Waits for Legal Exoneration


New DNA test casts doubt on
man's 1999 rape conviction

By ROMA KHANNA
and STEVE McVICKER

Copyright 2003

Sutton

John Everett / Chronicle

Josiah Sutton, 21, reacts today after it was announced that DNA evidence likely shows he did not commit a rape for which he is serving 25 years.

New DNA tests have proven that Josiah Sutton could not have committed the rape for which he has served four and a half years in prison after evidence originally processed at the Houston Police crime lab incorrectly linked him to the crime.

"The results found essentially that he was not an assailant," said Sutton's attorney, Bob Wicoff, confirming today the results of DNA retesting conducted last week. "They found the DNA of two assailants, neither of whom are identified."

The Houston Police Department crime lab, which has been shut down because of questions about the quality of its work, originally tested the DNA evidence that secured a 25-year jail sentence for Sutton, who was 16 when he was arrested for the crime. DNA experts who reviewed the lab's output have maintained the department's work and the testimony is among the most unsound produced by the beleaguered lab.

"Josiah has served four and a half years for nothing," Wicoff said. "We want him out as soon as possible and ultimately we are looking for a pardon from Gov. Perry."

An HPD spokesperson was unaware of the results and would not immediately comment.

Sutton's case is one of more than 20, including seven men on death row, that are being retested because of questions about the quality of the HPD crime lab's work raised in an independent audit. The audit uncovered widespread problems at the lab ranging from potential evidence contamination to a lack of basic paperwork, and the department has suspended DNA testing. The Harris County district attorney's office initiated a sweeping review of hundreds of cases with evidence processed by the lab.

"The interesting thing here will be the ramifications," Wicoff said. "The HPD crime lab has produced evidence instrumental in convicting thousands of people. This draws a lot of convictions into question, including those of people on death row."

A jury convicted Sutton of the October 1998 rape of a woman who was taken at gunpoint in her car from her Houston apartment complex and raped by two men before being dumped in a Fort Bend County field.

Five days after the attack, the woman saw two people she believed were her attackers as she drove down a street near her apartment. She alerted police, who arrested Sutton and a friend.

The boys provided blood and saliva samples that police compared to evidence from the woman and her car. The department determined Sutton may have been an attacker but said his friend was not. The test conducted last week confirmed that Sutton's friend could not have been the attacker.

Though the victim identified both, only Sutton was brought to trial. The prosecutor, Joe Owmby, has since held up the eyewitness identification as a reason for his confidence of Sutton's guilt, despite questions about the DNA evidence, which was the crux of the case against Sutton.

Forensic scientists who have reviewed the department's work on the case say there were numerous problems with the lab's technique and its conclusions.

First, the lab misidentified the source of a semen stain found in the backseat of the woman's car, according to William Thompson, a California criminology professor who specializes in forensic science and has reviewed the Sutton case. The lab concluded the stain contained a combination of DNA from Sutton, the victim and the second attacker.

But, Thompson said, neither Sutton nor the victim's DNA was present in that sample, suggesting it came from a single source. If that single source is one of the two rapists and his profile is compared to other samples, such as the vaginal swabs that contained DNA from all three parties, analysts would be able to separate the profile of the second rapist. Based on the evidence, Thompson said, Sutton could not have been the second attacker.

Further, during Sutton's trial, a police crime lab employee offered testimony that suggested the DNA found on the victim was an exact match for Sutton's. In reality, however, 1 in 16 black men would have a similar match, Thompson said.

Beyond false conclusions and misleading testimony, the police lab conducted shoddy work, DNA experts say. Analysis consumed all four vaginal swabs taken from the victim in its testing, limiting the possibility for retesting to one vaginal smear with limited DNA.

Thompson and Dr. Elizabeth Johnson, the DNA expert working for Sutton, said most labs would use a much smaller portion of the rape kit for testing.

An independent audit criticized the police lab's habit of consuming most, if not all, of the evidence available in most of its cases -- a practice that has created problems with other defendants.

The audit found the police lab routinely extracted two sexual assault swabs regardless of how much sperm was present. The analysts conducting the audit said the practice "is rarely necessary and is not a practice aimed at conserving evidence. It is recommended that extract from minimal samples should not be consumed ... to conserve sample."

During Sutton's trial, an Houston police crime lab employee said the lab generally used the majority of the evidence and referred to this process as the lab's "policy."

Analysts tried three times to establish a "standard type" for the victim's DNA, which allows analysts to separate fluids from another person. Experts say analysts should be able to establish reference types on the first try.

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