March 11, 2003

hen Josiah Sutton went on trial for rape in 1999, prosecutors in Houston had little to build a case on. The victim was the only eyewitness, and her recollection was faulty. But they did have the rapist's DNA, and technicians from the Houston police crime laboratory told the jury that it was a solid match.

That was enough to persuade the jurors to convict Mr. Sutton and send him to prison for 25 years.

But new testing has conclusively demonstrated that the DNA was not Mr. Sutton's, the Houston Police Department said yesterday.

The retesting is part of a review of the laboratory that began after a scathing state audit of its work led to a suspension of genetic testing in January. Mr. Sutton's apparent exoneration is the first to result from the review.

Legal experts say the laboratory is the worst in the country, but troubles there are also seen in other crime laboratories. Standards are often lax or nonexistent, technicians are poorly trained and defense lawyers often have no money to hire their own experts. Questions about the work of laboratories and their technicians in Oklahoma City, Montana and Washington State and elsewhere have led to similar reviews. But the possible problems in Houston are much greater. More defendants from Harris County, of which Houston is a part, have been executed than from any other county in the country.

"This is an earthquake," Mr. Sutton's lawyer, Bob Wicoff, said. "The ramifications of this for other cases, for death penalty cases, is staggering. Thousands of cases were prosecuted on the basis of this lab's work."

The audit of the Houston laboratory, completed in December, found that technicians had misinterpreted data, were poorly trained and kept shoddy records. In most cases, they used up all available evidence, barring defense experts from refuting or verifying their results. Even the laboratory's building was a mess, with a leaky roof having contaminated evidence.

The police and prosecutors vowed to retest DNA evidence in every case where it was used to obtain a conviction. But they remained confident that the laboratory's problems were primarily matters of documentation and testimony that was not conservative enough.

The Sutton case has changed that.

"It's a comedy of errors, except it's not funny," said State Representative Kevin Bailey, a Houston Democrat who is the chairman of a committee of the Texas Legislature investigating the laboratory. "You don't need to be a scientist to know that you have to wear surgical gloves. You have to tag evidence. You need to not have a leaky roof contaminating evidence."

The Houston police have turned over some 525 case files involving DNA testing to the Harris County district attorney's office, which has said that at least 25 cases warrant retesting, including those of seven people on death row. Both numbers will grow significantly as more files are collected and analyzed, Marie Munier, the assistant district attorney supervising the project, said.

Mr. Bailey said he was troubled that the retesting was being conducted under the supervision of Harris County prosecutors.

"I have lost confidence in the Police Department and the district attorney's office to handle this," Mr. Bailey said. "I'm really bothered by the fact that the review is being done by the same people who allowed the errors to go on and prosecuted these cases and so have a stake in the outcomes of the review."

Joseph Owmby, who prosecuted Mr. Sutton, said his office had not received a formal report from Identigene Inc. of Houston, the outside laboratory his office hired to perform the retesting.

"If he has been exonerated," Mr. Owmby said, "we also have an eyewitness identification, and we will have to work through that. If he was exonerated, it certainly doesn't make me feel any better."

Mr. Owmby said his confidence in the police laboratory's work had been shattered. "We're not scientists," he said. "We were presenting evidence that was presented to us. There is a big problem. We are treating it as a big problem."

Houston police officials issued a statement yesterday confirming Mr. Sutton's exclusion, but noted that they had not received a formal report from Identigene.

At a hearing on Thursday, Chief C. O. Bradford said his department had shut down its DNA laboratory and begun an internal affairs department investigation of whether there was criminal or other wrongdoing. Chief Bradford added that there should be a "cease and desist" on executions in the relevant cases until the retesting is complete.

"There certainly is a fear that people were wrongly accused, wrongly convicted or received longer sentences than they should have," he said last week in an interview in Austin.

William C. Thompson, a professor of criminology at the University of California at Irvine who has studied the Houston police laboratory's work, said, "The likelihood that there are more innocent people convicted because of bad lab work is almost certain."

Elizabeth A. Johnson, a DNA expert retained by Mr. Sutton's lawyers, has appeared as a defense witness in about 15 cases involving the crime laboratory and is perhaps its most vocal critic.

In one rape case, Dr. Johnson said, a technician testified that a swab of the victim found semen, even though initial laboratory reports said there was no semen present. In other cases evidence that technicians said was inconclusive actually exonerated the defendant. Often, she said, technicians would vastly exaggerate the probability of a defendant's guilt.

There was, she said, "an overall lack of understanding of how this work is done and what it means."

She said the laboratory was particularly weak where the sample involved a mixture of DNA from two people.

"They can't do a sperm sample separation to save their lives," Dr. Johnson said. "If you put a gun to their heads and said you have to do this or you will die, you'd just have to kill them."

There is plenty of blame to go around in the Sutton case, legal experts said, and it suggests a need for an independent investigation and systemic reform.

"The criminal justice system in Houston is completely dysfunctional," Professor Thompson said. He examined eight DNA cases processed by the Houston police at the request of KHOU-TV, the television station that first called attention to the laboratory's problems in several reports in November.

In Mr. Sutton's case, there happened to be a small amount of evidence available for retesting. That is seldom the case in Houston, according to the state's audit.

Mr. Sutton's mother, Carol Batie, said her son's main concern on hearing there would be retesting was that so little evidence remained available.

"We were concerned it would come back inconclusive," Mr. Batie said.

Mr. Bailey, the state representative, said the Sutton case should change the usual presumptions in cases where retesting is impossible. "Unless there is other strong corroborative evidence," he said, "those people at the very least deserve retrials."

The victim in the Sutton case identified him, but her testimony has been questioned. She said she was raped by two men. Both were around 5 feet 7 inches tall, she said; one weighed 135 pounds, the other 120.

Five days later, she saw several men on the street and identified two of them as her attackers. DNA evidence excluded one man at the time, meaning one of her two identifications was demonstrably mistaken from the start. Mr. Sutton, moreover, is 5 foot 10 and weighs more than 200 pounds.

The Sutton case, said David Dow, a University of Houston law professor who represents death row inmates in capital appeals, "is probably the tip of the iceberg."

"There were two different problems in the crime lab — scientific incompetence and corruption," Professor Dow said. "That's a deadly combination. Once you have corruption, there is no reason to think that this is limited to DNA cases or cases where there is scientific evidence of any sort."

"If this were a death penalty case," he added, "Sutton may well have been executed by now."