[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.

                          ____________________