Sutton freed because of faulty DNA evidence in rape case

Josiah Sutton was released from prison today after serving more than four years on a rape conviction that relied on faulty DNA evidence.

"I just want him home. That's what I want right now," Josiah Sutton's mother, Carol Batie, said after state District Judge Joan Huffman ordered her son bonded out without cost.

"I will see you on the outside, " Sutton's attorney, Bob Wicoff, told him during a court hearing this morning.

Sutton was 16 when he was arrested and charged in the October 1998 rape of a Houston woman. He was convicted and sentenced to 25 years in prison after an analyst from the Houston Police Department crime lab testified that DNA evidence found at the rape scene was an exact match for Sutton.

The crime lab has since been shut down because of complaints about the poor quality of its work. Some 22 DNA samples have been or will be retested. One of those retests showed Sutton, now 21, could not have contributed the DNA found at the rape scene.

"I have been angry. I have cried. Now my main concern is getting him home," said Carol Batie, Sutton's mother. "He has to set his feet on free ground."

More than 25 members of Sutton's family filled the downtown courtroom this morning for the brief hearing that resulted in the decision to release Sutton.

"He was quietly confident," Wicoff said. "He told me all along that this would happen, and now it's here."

Wicoff said he will ask Gov. Rick Perry to pardon Sutton and will ask the Harris County District Attorney's Office to support the request.

District Attorney Chuck Rosenthal appeared briefly at this morning's hearing to say his office had no objection to Sutton being released on bail. Prosecutors have not said what they will do next with the case against Sutton, which cannot be dismissed without their support.

"This is not a case I would take to trial today," said assistant district attorney Joe Owmby, who prosecuted Sutton. "I am sorry this happened. He lost four and half years of his life because of this."

Sutton's case is one of more than 500 under review by the district attorney's office because of problems at the HPD crime lab.

Sutton was 16 when he was arrested for the rape of a woman who was taken at gunpoint from her Houston apartment complex by two attackers, raped and dumped in a Fort Bend County field. He was sentenced to 25 years in prison after an employee of the HPD crime lab -- which was shut down last year because of questions about the quality of its work -- testified that DNA from the crime was an exact match for Sutton.

New tests found DNA from two men on a sample from the rape, but neither matched Sutton, a former football team captain who has spent 4 1/2 years in prison.

Sutton's case is one of more than 500 under review because of questions about the quality of work by the lab. An independent audit in December found widespread problems at the lab, including poor technique, the potential for evidence contamination and insufficiently trained analysts.

In a new development, a source close to the crime lab investigation said HPD's internal affairs division said 35 DNA samples were destroyed by rainwater that leaked through holes in the lab's roof during Tropical Storm Allison in June 2001.

The report indicates police and city officials knew of potentially case-threatening structural problems in the lab 18 months before the audit. Also, Mayor Lee Brown and Police Chief C.O. Bradford have previously downplayed the possibility the leaks contaminated DNA and other evidence.

The audit prompted the department to shut down the lab in December and forced the district attorney's office to conduct a sweeping review of convictions. Prosecutors have ordered retesting in 22 cases, including those of seven death row inmates.

The district attorney's office has found DNA evidence from the HPD crime lab played no role in the cases against the 67 people from Harris County who have been executed since 1982.

In the Sutton case, forensic scientists who have reviewed the handling of the evidence say it represents some of the worst problems with the crime lab, including inaccurate analysis of evidence and misleading testimony about its findings.

Sutton was arrested five days after the October 1998 rape when the victim identified him and a friend walking down the street. She said she thought they were her attackers because they wore similar hats. She alerted police, who arrested the pair.

The boys provided blood and saliva for DNA comparison to samples from the crime. The HPD lab found Sutton may have been an attacker but that his friend could not.

Despite the victim's identification of both men, prosecutors proceeded only with Sutton's case because of the DNA evidence, which proved crucial in court.

An HPD crime lab examiner testified that DNA from the rape was an exact match for Sutton. Forensic scientists who have reviewed HPD's work say that testimony was grossly misleading and that 1 in 16 black men would have matched the profile.

One juror, Ronald Forrester, said he would not have convicted Sutton without the DNA evidence.

In addition to false conclusions and misleading testimony, the police lab's work on the Sutton case was shoddy, DNA experts say. Examiners consumed all four vaginal swabs in the rape kit, limiting the possibility for retesting to one vaginal smear. Also, the lab required three attempts to establish a "standard type" for the victim's DNA profile.

Sutton's lawyer, Wicoff, said he will seek a pardon from Gov. Rick Perry for his client. The governor's office said such action would have to go through the Texas Board of Pardons and Paroles before coming to the governor.

"It is always disconcerting to hear of the likelihood that someone has been wrongly convicted," said Kathy Walt, a spokeswoman for Perry.

The district attorney's office has said it is too soon to declare Sutton innocent, pointing to the existence of DNA evidence on items that have not been tested and the victim's identification of the suspect.

Wicoff said he knows of no DNA material that has not been tested and notes the victim testified she was raped by two men. The second DNA analysis, conducted by private Houston lab Identigene, found the profiles of two attackers, neither of whom is Sutton.

The developments with Sutton's case have renewed calls for an independent review of cases that involve evidence processed at the police lab.

State Rep. Kevin Bailey, D-Houston, met with the Department of Public Safety on Tuesday about that agency assuming the work in deciding which cases need to be reviewed or retested.

Bailey plans to ask District Attorney Chuck Rosenthal to voluntarily allow DPS to oversee the the review. If Rosenthal refuses, Bailey would try to fast-track legislation that would authorize the DPS director to appoint someone to take charge of the HPD crime lab review "so that we can be sure that we have an outside independent person who's not part of the district attorney's office or the Police Department."

Bailey also will introduce legislation requiring all law enforcement agencies in Texas to only use accredited crime labs, otherwise the evidence would not be admissible in court. The House Committee on General Investigating, chaired by Bailey, will meet Thursday to discuss Bailey's bill and other possible legislation aimed at addressing what Bailey describes as "a crisis of confidence" in the HPD lab.

I don't know that I buy your truism. I think in the end it's a toss-up.

If they have to be weighted against each other, I would rather see some guilty go free than to overlook police misconduct. Sometimes you just don't know if an individual is guilty. At any rate, we have a press and the internet that can argue this at will.

I would rather see some guilty go free than to overlook police misconduct.

A false dichotomy. If a policeman exhibits misconduct, then he has committed a crime and needs to go in the dock along with the criminal.

I do NOT AGREE with releasing a criminal SOLELY because of police misconduct. That is unduly punishing society, which is innocent of any wrongdoing in the matter.

I don't know that I buy your truism. I think in the end it's a toss-up.

If the criminal is the Colombian drug cartel, you don't stand much chance either way. But I know I would rather have my door kicked in by a couple of scumbags I can shoot at rather than the Houston Police Department and their crime lab.

The irony of this case is that Sutton and his whole family are no doubt ardent supporters of Brown, Bradford, and their ilk whose incompetence and corruption sent Sutton to prison wrongfully. And they will go on supporting the same corrupt pols who prey on them.

I do NOT AGREE with releasing a criminal SOLELY because of police misconduct.

I can agree with this, but if the police have actually manufactured evidence in a case, you will not get a jury to convict.

It depends. For example, is ALL the evidence "manufactured" or just some?

A recent story indicates that the "evidence" that Iraq has an active nuclear weapons program was probably fabricated.

Do we bring the troops home, then?

Do we bring the troops home, then?

Interesting question. Bush and the Republicans better be sure about the majority of their claims. If we go in and Saddam turns out to be uncle fuzzy, we are in deep doodoo. But that is beside the point. Wars are fought for compelling reasons of national interest, and are judged by history, not courts.

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	HEAR IT NOW

Audio: Former inmate Josiah Sutton talks about: • How it feels to be out • Maintaining his innocence and continuing to fight • The first thing he wants to do as a free man • The fact that the real rapist is still at large • His future Audio requires the free RealPlayer.