[Deathpenalty]death penalty news----TEXAS

[Rick Halperin]

Jan. 8


TEXAS:

HPD analysts avoided serious penalty before----3 suspended at the crime
lab had earlier rebukes reduced on appeal


The 3 analysts suspended because of the latest findings in the Houston
crime-lab investigation have been targeted for discipline previously or
cited for errors in their work, but escaped serious punishment, the
Houston Chronicle found in reviewing personnel records.

Houston Police Department supervisors suspended Mary Childs-Henry, Joseph
Chu and Raynard Cockrell after an independent team of experts found they
had failed to report evidence that could have helped defendants and that
they made errors in DNA and serology tests.

HPD had attempted to discipline the 3 longtime crime-lab employees for
mistakes that ranged from bungling evidence in a capital murder case to
failing to cooperate with internal investigations of the crime-lab
debacle. Each time, the analysts received reduced punishment after
appealing to a review panel.

In fact, most other crime-lab employees who have appealed disciplinary
action in the three years since HPD's forensic work first came under
scrutiny also have succeeded - even Christy Kim, the analyst fired for her
shoddy work in the wrongful rape conviction of Josiah Sutton. They largely
have argued that the crime lab's deficiencies were systemic and individual
analysts did not have the power to correct them.

The difficulty in firing Kim, who won reinstatement and then retired,
angered Mayor Bill White and Police Chief Harold Hurtt. Both expressed
hope last week that any future discipline of crime-lab employees will not
be overturned.

"In public safety, part of the standard for performance should be based on
the credibility of the people involved," White said. "And for certain
functions, there should not be any doubts. I do not want a guilty person
to escape the judgment of a jury because of some attack by a skillful
criminal defense attorney on the records of any individual at the crime
lab."

The panel that heard analysts' appeals, the three-member city Civil
Service Commission, is appointed by the mayor and confirmed by the City
Council. White's predecessor, Mayor Lee Brown, appointed the members who
have heard all of the crime-lab cases to date.

White recently made a new appointment, however, and expects soon to make a
second. He said that though he supports the civil service system, it
should not stand in the way of HPD's effort to regain public confidence.

"It goes too far when it limits the ability of respected managers, such as
Chief Hurtt, to manage a work force in a way designed to enhance the
credibility of the department," he said.

The ongoing investigations into the work of Childs-Henry, Chu and
Cockrell, who were suspended last month in anticipation of the latest
crime-lab investigators' report, may once again test whether HPD can
uphold discipline against lab employees.

Report cites 'major issues'

The report, released last week, cited "major issues" in the performance of
DNA and serology tests. Serology, the analysis of body fluids, was a
precursor to DNA testing.

After he was briefed on the investigators' findings, Hurtt moved to
suspend the analysts with pay and opened an internal probe into whether
they should be disciplined.

Cockrell and Chu declined to comment to the Chronicle. Phone calls to
Childs-Henry were not returned.

According to the team of experts reviewing cases for independent
investigator Michael Bromwich, Childs-Henry reported that DNA tests in the
1995 sexual assault case against Garland Davis were inconclusive when, in
fact, they excluded him as a contributor to samples of evidence from the
crime scene.

Childs-Henry, who has worked in the lab for 13 years, performed a highly
discriminating DNA analysis on 2 evidence samples collected with a rape
kit and 1 from the victim's clothes, the investigators reported. She
obtained strong results indicating the presence of a male - but not Davis
- on all 3 samples, the experts said.

Rather than report those findings, however, Childs-Henry said she obtained
no results, the investigators said.

In the same case, Chu used a less-discriminating DNA test and obtained
results that may have included Davis as a suspect, investigators said.
Those results were reported as definitively including him, according to
the report, with no mention of the other, more discriminating and
exculpatory findings.

Davis pleaded guilty and was sentenced to 18 years in prison.

Experts also said that Chu overstated the strength of his test results in
a capital murder case and a sexual assault case. In addition, they
reported that Cockrell, who joined the lab in 1995, never reported
potentially exculpatory DNA test results from a murder that was cited in
the penalty phase of Franklin Alix's capital murder trial.

Results left out of report

Cockrell's analyses did not detect Alix's DNA on samples from the crime,
but those results were not included in the final report, which Cockrell
did not write. Alix is awaiting execution.

Though Bromwich's team named these 3 and other analysts in its report, he
said last week that he did not recommend the suspensions.

"As our reports make clear, the problems in serology and DNA are more
properly characterized as systemic breakdowns in training, supervision and
oversight rather than isolated acts of individual misconduct," he said.
"Specifically, we have not found any intentional misconduct on the part of
the three suspended employees."

The instances highlighted in Bromwich's latest report are not the 1st time
Childs-Henry, Chu or Cockrell have been cited.

Childs-Henry played a key role in the 1996 case of Lynn Jones, who sat in
the Harris County Jail for nine months while the crime lab failed to
perform DNA tests on a sample that eventually cleared him, according to
depositions in a lawsuit and an internal HPD memo.

Jones, accused of raping a 14-year-old girl, was held while the crime lab
was supposed to be processing evidence from his case. Childs-Henry had
samples for more than three months before she analyzed them and was unable
to obtain results when she did, according to a memo by a crime-lab
supervisor.

Jones was released after another analyst performed tests that eliminated
him as a suspect, but his ordeal prompted then-Police Chief Sam Nuchia to
order an audit.

More recently, the Police Department attempted to suspend Childs-Henry for
three days in 2004 because she improperly packaged evidence from a rape
kit and "possibly cross-contaminated evidence," according to the letter
notifying her of the suspension. After she appealed, maintaining that she
was following lab protocols, the Civil Service Commission reduced her
suspension to a written reprimand.

Chu, a 16-year crime-lab veteran, faced a 14-day suspension in 2003 for a
variety of errors, such as botched statistical calculations, in 4 cases
including 2 capital murders. After appealing, he received a written
reprimand, according to civil service records.

Cockrell fought a two-day suspension for not cooperating with internal
affairs investigators' inquiry about the lab's problems and received no
disciplinary action.

Meeting with chief

Central to each analyst's arguments against disciplinary action have been
claims that they had no control over the lab's protocols because they were
not supervisors. They also pointed out that they had alerted supervisors,
all the way up to the chief of police, about concerns over the quality of
the lab's work.

In Chu's testimony, he told the Civil Service Commission about a 1999
meeting that 6 lab employees had with then-Police Chief C.O. Bradford to
discuss problems in the DNA division.

In a letter after the meeting, the analysts described the division as a
"total disaster."

Bradford has said he never received the letter.

Fred Keys, the attorney for Chu and his colleague, Kim, called the crime
lab's woes systemic and that top Police Department officials, not
lower-ranking analysts, should be held accountable.

At the time of their hearings, he said, "You can delegate authority but
not responsibility."

*********************

Court weighing effort to retry smuggling case -- Double-jeopardy question
at issue for truck driver Tyrone Williams


Prosecutors tried last week to convince a federal appeals court that a
truck driver convicted in a deadly immigrant-smuggling case should be
retried on multiple counts that could carry a death penalty.

The defense argued, however, that retrying 19 of those death-penalty
counts would violate the defendant's constitutional rights against double
jeopardy - repeated prosecution for the same offense.

A 3-judge panel at the U.S. 5th Circuit Court of Appeals must weigh the
oral arguments in the case of Tyrone Williams, a Jamaican living legally
in New York when he was arrested and charged in the 2003 deaths of 19
undocumented immigrants.

Unanswered questions

Williams was tried in a federal district court in Houston on 58 smuggling
and conspiracy counts. A jury found him guilty in March of 38 smuggling
counts carrying a maximum penalty of 10 years in prison.

A jury deadlocked on 20 other counts, including one that carried a
possible death sentence.

19 of the 38 counts that Williams was convicted of carried a possible
death sentence, but jurors failed to answer special questions required to
assess the stiffer penalty.

Those special questions asked not only whether Williams was guilty but
whether he was the principal culprit and his actions caused death.

The government argued that failure to answer those questions was the same
as failing to reach a verdict.

"We think we have the right to retry him on the greater offenses,"
Assistant U.S. Attorney Tony Roberts told the appellate judges. "We would
not have a problem retrying him because of the incomplete verdict.
Importantly, they did not acquit him of anything."

Defense's argument

Defense attorney Craig Washington argued that the trial jury found
Williams guilty of immigrant smuggling but did not find him eligible for
conviction of higher offenses that could result in a death sentence.

"The government in this case, your honor, wants to retry a man that has
already been found guilty," Washington said.

He said it was the government's duty to prove the greater charges, not the
defendant's burden to prove his innocence.

"That means the government didn't meet their burden of proof," Washington
said of the outcome.

Regardless of the 5th Circuit's eventual ruling, prosecutors retain the
right to retry Williams on the 20 charges on which the jury deadlocked.

Only one of those charges, conspiracy to commit smuggling, could result in
the death penalty. By seeking the court's approval to retry the other 38
counts, prosecutors are apparently hoping to increase the chances that
Williams will get the death penalty.

In May 2003, at least 75 people were sealed into a trailer for a trip from
South Texas to Houston. The trailer was found abandoned near Victoria, and
authorities found 17 bodies in or near it. 2 more died later.

(source for both: Houston Chronicle)

**************************

Time to act, governor


Criminal prosecution has come to rely so heavily on science that the most
important part of a felony trial often is testimony and evidence from
crime laboratories.

Forensic science is the underpinning of some of the most important cases
brought to court these days. In particular, DNA testing often can prove
guilt beyond a reasonable doubt or confirm that a suspect - or worse, a
convict - is innocent.

Unfortunately, Texas has a blemished history when it comes to crime labs.
An investigation of the Houston Police Department crime lab in 2002 found
it to be such a huge mess, with missing boxes of evidence and deplorable
testing practices, that part of it was shut down.

A review released last week said possibly exculpatory evidence was not
reported from the lab in one capital murder case and serious problems with
evidence in two other death row cases were found. All three individuals
are still on death row.

An investigation of thousands of cases in which evidence was processed
through the Houston crime lab is ongoing. The latest report was from a
review of 1,100 cases handled by the lab.

Nor was the Houston lab the only forensic facility that was poorly run or
performed shoddy work. Labs in other cities and several operated by the
Texas Department of Public Safety had problems of their own,
investigations revealed.

That reality prodded the Texas Legislature to pass a law creating an
oversight committee to police the vitally important crime labs. A bill
establishing the Texas Forensic Science Commission passed both houses and
became law this year.

But the commission does not yet exist because Gov. Rick Perry hasn't named
any members to it. The law setting up the oversight panel became effective
on Sept. 1, but 4 months later, it still hasn't been constituted. A Perry
aide said the governor isn't procrastinating but looking for the right
people to serve.

It would seem Perry has had ample time to find the 4 people he gets to put
on the commission charged with such a critical task. The law requires the
governor to name 2 people with forensic experience, 1 recommended by
prosecutors and 1 by defense attorneys. Other members are appointed by the
lieutenant governor and the attorney general. Attorney General Greg Abbott
has named 2 people to the panel. Lt. Gov. David Dewhurst's appointments
are pending.

Given the enormous importance of crime labs in criminal prosecutions and
the embarrassing problems associated with them in Texas, an oversight
committee should have been named and working months ago. As the latest
report from the Houston crime lab shows, lives are at stake.

(source: Editorial, Austin American-Statesman)

**********************

Infected justice


A probe reveals more tainted Houston crime lab cases while positions on a
state commission to deal with such problems remain unfilled.


The Houston crime lab scandal just keeps on spreading. As special
investigator Michael Bromwich digs deeper into the HPD forensic graveyard,
botched testing and manipulated results call more criminal convictions
into question, as well as the motives of the lab's technicians.

In the latest developments reported by the Chronicle's Roma Khanna and
Steve McVicker, not only did analysts in the lab's DNA and serology
divisions make mistakes in a third of cases reviewed, they also concealed
exculpatory findings in a number of cases that might have resulted in
defendants' exonerations.

That behavior raised suspicion among investigators of collusion between
technicians and law enforcement in manipulating case evidence. A new
report Bromwich issued cites "a disturbing and pervasive pattern" in which
analysts failed to report findings that would have helped defendants,
including several now facing execution.

In response, Houston Police Chief Harold Hurtt gave the green light for
Bromwich to expand the investigation to cases as far back as 1980. He also
suspended three lab analysts who had been involved in some of the cases.

According to the chief, "it is clear from this report that technology was
ahead of our ability ... to hire qualified employees. [The probe's
expansion] is a disappointing but necessary step toward regaining public
confidence." Hurtt did not address the issue of apparent concealment of
evidence by some of the lab employees.

While Hurtt's actions in expanding the probe and sidelining suspect
analysts are welcome, the scope and depth of the crime lab malfeasance
indicates more vigorous efforts must be made to secure legal review of all
convictions where tainted evidence played a role. As defense attorney Les
Ribnik told the Chronicle, "Now that we see how pervasive the errors were,
we must ensure that all DNA cases are retested and that appropriate action
is taken on each."

Unfortunately, that doesn't seem to be happening. The crime lab probe has
turned up three more cases involving questionable DNA evidence that Harris
County prosecutors had not scheduled for retesting. The review was
supposed to be comprehensive, with the lawyers for the defendants involved
notified of any problems. In other cases where evidence was botched,
little or no legal action has been taken to appeal convictions.

There is also official footdragging on the statewide level. A new
commission created by legislators to oversee crime lab operations remains
dormant months after members were supposed to have been appointed by Gov.
Rick Perry and Lt. Gov. David Dewhurst. To his credit, Texas Attorney
General Greg Abbott filled his 2 positions on the Texas Forensic Science
Commission by the Nov. 1 deadline.

The commission was created after state hearings on the crime lab issue
were held in Houston. Innocence Project director and nationally known
attorney Barry Scheck sent a letter to Perry this week lamenting the delay
in activating the new board.

"Texans deserve to have faith in the evidence used in their criminal
justice system to investigate, prosecute, convict and acquit," Scheck
wrote. "We now respectfully ask that you delay not a moment longer in
naming the Texas Forensic Science Commission."

The Houston crime lab probe will not be a success unless its findings
translate into justice for all persons wrongfully convicted and
incarcerated. When the new commission finally meets, one of its priorities
should be to set up a review mechanism to make sure that every defendant
convicted by tainted evidence from a crime lab in the state gets proper
notification of the error and the opportunity for another day in court.

(source: Editorial, Houston Chronicle)

************************

An independent crime lab----Factor in jury confidence


RECENT discoveries about the Houston Police Department crime lab are
beyond explanation. We citizens own that lab and employ the ones who work
there. We are the ones, therefore, who have exacted punishments against
numerous innocent persons in the interest of "getting tough on crime."

We should be appalled as well as terrified since any one of us could be
the next innocent unfairly incarcerated (or worse).

The crime lab must be completely independent. It cannot be accountable to
any law enforcement agency, judge or district attorney.

Our city's crime lab should be subject to frequent, unannounced and
independent audits.

And consequences for producing false evidence should be severe and
immediate. For our own safety, we must demand exactly this.

Getting tough on crime is going to have the opposite effect if we aren't
careful, because if enough law enforcement malice comes to light, no jury
in this city will have the confidence to convict anyone of anything.

GREG HILL -- Sugar Land

**

Too much coziness for justice

ALLOWING Houston's District Attorney Chuck Rosenthal or any of his staff
to help in reconstructing records of the embattled crime lab or
participating in any phase of its investigation would be akin to letting
the fox watch over the henhouse [see the Chronicle's Jan. 5 article, "HPD
lab probe details more lapses / Revelations show 2 divisions' troubles
amount to a 'near-total breakdown' "].

The DA's office and the crime lab have traditionally had a cozy
relationship over the years because they had to work so closely together
preparing criminal trials.

The DA's office personnel must have turned their heads during numerous
criminal trials when lab personnel presented faulty, misleading or
outright false evidence to juries or failed to turn over to the defense
attorneys evidence that would have been helpful to the defendants' cases.

Only independent, outside crime lab experts - those who have absolutely
nothing to gain - should be allowed to have anything to do with this
disastrous situation.

CORA BELLE DELANEY -- Houston

(source: Viewpoints, Houston Chronicle)