[Congressional Record Volume 149, Number 41 (Thursday, March 13, 2003)]
[Senate]
[Pages S3717-S3720]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
HOUSTON, WE HAVE A PROBLEM
Mr. LEAHY. Mr. President, after years of shortchanging our nation's
crime labs, the Administration has unveiled a proposal to spend more
than $1 billion over five years on forensic DNA programs. This proposal
is overdue, but it is welcome, and it will make a difference.
For two years I have repeatedly urged the Administration and House
Republicans to fully fund existing programs aimed at eliminating the
DNA backlog crisis and, in particular, the inexcusable backlog of
untested rape kits. Until now, the Justice Department has simply
refused to make this a high priority. In the meantime, untested
critical evidence has been piling up while rapists and killers remain
at large, while victims continue to anguish, and while statutes of
limitation expire.
I am pleased that the Administration's new commitment to funding DNA
programs includes $5 million a year for post-conviction DNA tests that
can be used by inmates to prove their innocence. Post-conviction DNA
testing has already been used to exonerate more than 120 prisoners
nationwide, including 12 awaiting execution. Last year the Justice
Department cancelled plans to spend $750,000 on a post-conviction DNA
testing initiative, and diverted the money to another program. It is
heartening that the Department at last has recognized the importance of
ensuring that the power of modern science, in the form of DNA testing,
is available to help prosecutors and defendants alike establish the
truth about guilt and innocence.
Clearly, DNA testing is critical to the effective administration of
justice
[[Page S3718]]
in 21st Century America. But like every forensic tool, DNA testing is
only as accurate as the labs and technicians that process the evidence.
When we shortchange our labs, we shortchange the whole criminal justice
system. The appalling situation in Houston, Texas, is only the most
recent example.
Last December, a state audit conducted by a team of forensic
scientists uncovered widespread problems at the Houston Police
Department's crime laboratory. These problems included poorly trained
technicians, shoddy recordkeeping, and holes in the roof that allowed
rain to possibly contaminate samples. A Houston councilwoman who toured
the lab last June described trash buckets and water buckets throughout
the facility: ``They were having to move tables around, because some of
the leaks were near and sometimes above where the analysis was
occurring.''
Elizabeth Johnson, a DNA expert familiar with the Houston police lab,
has pointed to serious problems beyond holes in the ceiling problems
that suggest widespread incompetence or even corruption. Dr. Johnson
has testified that lab technicians often vastly exaggerated the
probability of a defendant's guilt, while mischaracterizing evidence
that exonerated a defendant as ``inconclusive.'' In many cases, she
found, lab technicians' reports, which were used to make critical
decisions throughout the criminal justice system, asserted conclusions
that were entirely unsupported by their data: not technical errors; not
misjudgments; but flat-out fabrications.
I have spoken before about the disastrous consequences of sloppy lab
work. Two years ago, an FBI investigation found that a police chemist
in Oklahoma City was routinely exaggerating her results. At least one
man who was convicted on the basis of the chemist's so-called
``expert'' testimony was later exonerated and released from prison. He
had already served 15 years of a 65-year sentence.
There are many other cases in which people have been wrongly
convicted because forensic specialists were incompetent, or because
they fabricated or overstated test results to support the prosecution's
theory of the case. In 1997, we learned about major problems at the
FBI's crime labs, ranging from unqualified forensic scientists to
contamination of evidence and the doctoring of laboratory reports.
Before that, there were similar problems in various state crime labs.
Police in Baltimore are currently reviewing 480 cases worked on by a
former police chemist who testified at a 1983 rape trial against a
defendant who was later exonerated.
While the situation in Houston is not unprecedented, it is
particularly alarming. That is because Houston is in Harris County, the
execution capital of the United States. Harris County sends more people
to death row in a year than many states do in a decade. More defendants
from Harris County have been executed than from any other county in the
country.
Harris County prosecutors are now busily reviewing their closed cases
to determine whether they involved evidence processed by the Houston
police lab. They have already ordered new DNA testing in more than 20
cases, including 7 cases in which the defendant was sentenced to death.
Ultimately, several hundred cases will need to be retested.
Retesting has already cleared one man, Josiah Sutton. Sutton was only
a teenager when he was convicted and sentenced to 25 years for rape,
based largely on a bogus DNA match by the Houston police lab. It now
appears that he spent the last 4\1/2\ years in prison for nothing.
How many Josiah Sutton's has Harris County wrongfully convicted?
Probably quite a few. Hundreds of people have been convicted using DNA
evidence processed by the Houston police lab. The fact that the very
first batch of cases to be retested has exposed a wrongful conviction
suggests that Sutton may be just the tip of the iceberg.
How many more people will be cleared through retesting? That is a
trickier question. According to the state audit, the Houston police lab
routinely consumed most if not all of the evidence available for
testing, with little or no regard for the importance of conserving
samples. This practice will greatly limit the possibility for retesting
in the hundreds of cases now under review.
DNA testing is an extraordinary tool for uncovering the truth,
whatever the truth may be. It can show us conclusively, even years
after a conviction, where mistakes have been made. But it cannot show
us anything if there is no evidence to test. By needlessly consuming
entire DNA samples, the Houston police lab may have destroyed the only
key to freedom for more than one wrongly convicted person.
The failure to preserve DNA evidence is a problem in many parts of
the country, but it seems to be an official policy in Harris County. In
1997, DNA testing exonerated Harris County defendant Kevin Byrd only
because, by pure luck, the 12-year rape kit had not been destroyed
pursuant to bureaucratic routine. The very week that Byrd was freed,
however, Harris County officials systematically destroyed the rape kits
from 50 other old cases, citing a lack of storage space.
No doubt many of the rape kits that Harris County destroyed that week
and over the years were analyzed under the leaky ceilings of the
Houston police lab. But even with the best of intentions, Harris County
prosecutors will not be able to resurrect that evidence for retesting.
There may well have been another Josiah Sutton or two among those
cases--defendants who were wrongfully convicted based on bad lab work--
but without the evidence to prove it, we will probably never know.
The essence of law enforcement is seeking the truth, not hiding from
it or destroying evidence in a fit of pique or to save face. The
disdain for science, truth, and justice we have seen in Houston, at the
heart of the nation's capital punishment system, is an utter disgrace.
All of which is to say that I hope my colleagues will join me in
supporting the Administration's new DNA initiative. One billion dollars
will give States the help they desperately need to improve the quality
and credibility of their crime labs, and to eliminate the backlog of
untested DNA evidence. Five million dollars a year will go a long way
toward ensuring that no deserving inmate is denied post-conviction DNA
testing because he or she cannot afford to pay for it.
In his remarks announcing the DNA Initiative, Attorney General
Ashcroft said he ``looked forward to working with the Chairmen of the
House and Senate Judiciary Committees to develop legislation that
provides appropriate post-conviction DNA testing to federal inmates.''
I welcome that, but I have a better idea. With Chairman Hatch's
agreement, I would like to issue a bipartisan invitation to Attorney
General Ashcroft to come to talk to us in open committee about a
legislative proposal that is already written, has already been refined
and debated, and has already received overwhelming bipartisan support.
I refer to the Innocence Protection Act, a modest and practical
package of reforms that aims at reducing the risk of error in capital
cases. The reforms proposed by the IPA are designed to create a fairer
system of justice, where the problems that have sent innocent people to
death row would not occur, and where victims and their families could
be more certain of the accuracy, and finality, of the results.
More specifically, the Innocence Protection Act would ensure that
post-conviction DNA testing is available in appropriate cases, where it
can help expose wrongful convictions, and that DNA evidence is
adequately preserved throughout the country. The bill also addresses
one of the root causes of wrongful convictions--inadequate defense
representation at trial.
Last year, the IPA won the support of a bipartisan majority of the
Senate Judiciary Committee, and more than half the entire House of
Representatives. Together with other lead sponsors--Senator Gordon
Smith, Senator Susan Collins, Representative Bill Delahunt, and
Representative Ray LaHood--I am committed to reintroducing the IPA this
year and getting it signed into law.
The path to prompt reform is through legislation that is already
written and fine-tuned. The path to consensus is through legislation
that has already received broad bipartisan support. And the path to
addressing the fundamental problems in our criminal
[[Page S3719]]
justice system is through legislation that addresses the most common
cause of wrongful convictions--inadequate defense counsel--as well as
their most conspicuous solution--DNA testing. The path, in each case,
is the Innocence Protection Act.
I look forward to continuing to work with my colleagues on both sides
of the aisle to pass the Innocence Protection Act this year.
I ask unanimous consent to have printed in the Record 2 articles, one
from the Washington Post, the other from the New York Times, which
describe the ongoing investigation into the Houston police lab.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the New York Times, Mar. 11, 2003]
Review of DNA Clears Man Convicted of Rape
(By Adam Liptak)
When Josiah Sutton went on trial for rape in 1999,
prosecutors in Houston had little to build a case on. The
victim was the only witness, 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
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 on 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 exaggerated 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 weighed 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.''
____
[From the Washington Post, Mar. 1, 2003]
Tex. Lawmakers Probe Lab Over Reports of Tainted DNA Evidence
(By Karin Brulliard)
Austin, Feb. 28.--The Texas Legislature has launched an
inquiry into the operations of the Houston Police crime lab
after reports that the lab's shoddy facilities and faulty
practices may have led to contamination of DNA evidence in
hundreds of cases.
An independent audit by the state in December uncovered the
problems. In January, police officials suspended DNA testing
at the lab, and the Harris County District Attorney's office
began a review of all cases that involved evidence processed
there.
So far, the DNA from at least 14 convictions will be
retested because of information secured during the reviews,
said District Attorney Charles A. Rosenthal Jr. At least
three involve death row cases.
Houston is in Harris County, which has sent more people to
death row than any other county in Texas.
``It's a serious, serious problem,'' said state Rep. Kevin
Bailey, a Democrat from Houston who is chairman of the House
General Investigating Committee, which will hold hearings on
the lab next week. ``The public has a right to expect a fair
and accurate analysis
[[Page S3720]]
by a metropolitan crime lab. When we find out that we've not
had that, it causes people to question the whole criminal
justice system.''
In the December audit, a team of forensic scientists
detailed problems that included inadequate recordkeeping,
poor maintenance of equipment and a leaky roof that it said
could lead to contamination of DNA samples.
City Councilwoman Carol Alvarado, who toured the facility
June 11 after receiving complaints from lab employees, said
the roof was in poor shape.
``These were not just leaks; these were holes,'' she said.
``There were trash buckets and water buckets throughout the
lab. They were having to move tables around, because some of
the leaks were near and sometimes above where the analysis
was occurring.''
Alvarado said she reported her findings to the council June
19, but funding issues prevented the council from awarding a
contract for roof repair until January.
Houston Police Department spokesman Robert Hurst refused to
comment on the lab.
Elizabeth Johnson, who directed the Harris County DNA lab
until 1996, said water from a leak could taint samples. But
she also said the city police lab's problems run deeper than
a leaky roof.
``Every single case I ever reviewed of theirs had at least
one serious error and sometimes more than one error,'' she
said. ``I'm not talking about a typo. I'm talking about
things like controls being missing. Most common were that
their reports would say one thing, and their data didn't
support that at all.''
Rosenthal said any DNA retests that reveal errors will lead
to new trials.
Bailey said the use of DNA evidence from a flawed lab
reveals the ``win and get a conviction at all costs''
attitude of the district attorney's office. He wants hearings
to determine whether an external review is necessary.
``No innocent people should be convicted because of faulty
analysis,'' he said. ``At this point, I'm skeptical as to
whether the Houston lab can analyze their own mistakes.''
____
[From the Washington Post, Mar. 13, 2003]
Tex. Execution Stayed at Last Minute--Supreme Court Considers Review
(By Charles Lane)
The Supreme Court granted a last-minute stay of execution
last night to a Texas death-row inmate who says he is
innocent of the murder of which he was convicted 23 years
ago, setting the stage for another high-profile debate at the
court over alleged flaws in the U.S. capital punishment
system.
In a brief order issued about 10 minutes before officials
were to administer a lethal injection to Delma Banks Jr., the
justices said that he should be kept alive at least long
enough for them to consider his request for a full-scale
hearing on claims that his 1980 trial in Bowie County, Tex.,
was marred by prosecutorial misconduct, ineffective defense
counsel and racially discriminatory jury selection.
Banks, an African American, was convicted of killing a
white teenager by an all-white jury. If his execution had
proceeded last night, he would have been the 300th person put
to death in Texas since the state resumed executions in 1982.
It was unclear when the court might meet to consider Banks'
petition. Its next scheduled closed-door conference is March
21. However, the stay may be a favorable sign for Banks
because it required the votes of at least five justices, and
a decision to hear his case could be made with the assent of
just four justices.
Consistent with growing public concern over the possibility
of wrongful death sentences, the court has shown interest
recently in the issues raised by Banks' appeal, though its
rulings have not always come out the way death penalty
opponents would have liked.
The court ordered a lower court review of another Texas
man's death sentence last month, ruling that a case could be
made that jury selection at his trial was racially biased;
last year, it abolished capital punishment for the mentally
retarded. But also last year, the court rebuffed an effort to
seek abolition of the death penalty for juveniles and let
Virginia proceed with the execution of a murderer who had
been represented at trial by the murder victim's former
lawyer.
``Delma Banks Jr., who has maintained his innocence from
the beginning, found justice in the courts today, and we are
hopeful that this delay will allow a meaningful review of the
serious claims in his case,'' Banks' lawyer, George Kendall
of the NAACP Legal Defense and Education Fund, said in a
prepared statement. ``The court's decision to stay the
execution in order to potentially hear the significant claims
put before it demonstrates that our tribunals will not turn a
blind eye to egregious miscarriages of justice.''
Bobby Lockhart, district attorney of Bowie County, said,
``Factually, [Banks] was guilty, and legally the jury found
him guilty. As to the death penalty, that's up to the Supreme
Court. I think that the Supreme court will review the case
and find that he was guilty, and I think there's no way the
stay [of execution] will be extended beyond 30 days.''
Banks' case has attracted attention in part because of the
supporters who have rallied to his cause, including former
FBI director William S. Sessions and two former federal
appeals court judges.
In a brief submitted to the Supreme Court in support of
Banks' request for a stay, Sessions and his colleagues said
that the Banks case is tainted by ``uncured constitutional
errors'' that are ``typical of those that have undermined
public confidence in the fairness of our capital punishment
system.''
Banks, then 21, was convicted in 1980 of shooting his co-
worker Richard Wayne Whitehead, 16, to death with a .25-
caliber handgun.
Banks' lawyers argue that prosecutors wrongfully suppressed
evidence that one of their key witnesses, who has since
recanted, lied on the stand. Banks' attorneys also argue that
his inexperienced defense lawyers offered little evidence to
counter prosecutors' claims that Banks deserved the death
penalty, even though he had no previous criminal record.
Prosecutors kept African Americans off the jury, they
contend, producing the all-white panel that convicted Banks
and sentenced him to death in the course of two days of legal
proceedings.
No physical evidence linked Banks to the crime. But Banks
was the last person seen with Whitehead, and prosecutors said
their case against him is strong. Last week, the New Orleans-
based U.S. Court of Appeals for the 5th Circuit, reversing a
federal district judge's ruling in favor of Banks, permitted
his execution to proceed, on the grounds that the alleged
flaws in his trial were not substantial enough to have
changed the outcome.
The Texas Court of Criminal Appeals this week refused to
block Banks' execution, and the Texas Board of Pardons and
Paroles would not hear his plea because it was filed too
late.
Because of the prolonged appeals process in his case, Banks
has been on death row while Texas conducted 299 executions,
the most of any state since the Supreme Court permitted
states to resume capital punishment in 1976.
____________________