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August 5, 2004 - The New York Times (NY)

New Doubt Cast on Crime Testing in Houston Cases

By Adam Liptak and Ralph Blumenthal

Return to Drug War News: Don't Miss Archive

The police crime laboratory in Houston, already reeling from a scandal that has led to retesting of evidence in 360 cases, now faces a much larger crisis that could involve many thousands of cases over 25 years.

Six independent forensic scientists, in a report to be filed in a Houston state court today, said that a crime laboratory official - because he either lacked basic knowledge of blood typing or gave false testimony - helped convict an innocent man of rape in 1987.

The panel concluded that crime laboratory officials might have offered "similarly false and scientifically unsound" reports and testimony in other cases, and it called for a comprehensive audit spanning decades to re-examine the results of a broad array of rudimentary tests on blood, semen and other bodily fluids.

Elizabeth A. Johnson, a former director of the DNA laboratory at the Harris County medical examiner's office in Houston, said the task would be daunting.

"A conservative number would probably be 5,000 to 10,000 cases," Dr. Johnson said. "If you add in hair, it's off the board."

The official whose testimony was challenged, James Bolding, said in a telephone interview that he did not recall the particular case. But Mr. Bolding said that both his scientific work and his testimony were always careful and professional. When he testified in 1987, he was the supervisor of the laboratory's serology unit. He later became the head of its DNA unit.

His testimony helped convict George Rodriguez, who has served 17 years for raping a 14-year-old girl in 1987. DNA results have now cleared him, according to court-ordered testing, and the papers to be filed today will seek his release. As in many of the 146 DNA exonerations across the country, the new information also calls into question the scientific evidence used to convict Mr. Rodriguez in the first place.

A re-examination of the work by the Houston crime laboratory is already under way, but only of the DNA evidence used to convict people. That effort involves hundreds of cases and has produced a staggering workload, prosecutors in Houston say. One man has been exonerated, and significant problems have arisen in at least 40 cases.

The discovery of flawed work in the laboratory that led to the Rodriguez conviction would seem to require similar reviews of its work, legal experts said, but prosecutors would not immediately say what they will do or whether they will oppose Mr. Rodriguez's release.

Barry Scheck, one of Mr. Rodriguez's lawyers, said that Harris County was the worst place in America for a crime laboratory scandal.

"We know already that they couldn't do DNA testing properly," Mr. Scheck said. "Now we have a scandal that calls into question many thousands more cases. And this jurisdiction has produced more executions than any other county in America."

Since the death penalty was reinstated in 1976, Texas has executed 323 people, 73 for crimes in Harris County.

A state audit of the crime laboratory, completed in December 2002, has found that DNA technicians there misinterpreted data, were poorly trained and kept shoddy records. In many cases, the technicians used up all available evidence, making it impossible for defense experts to refute or verify their results. Even the laboratory's building was a mess, with a leaky roof contaminating evidence.

The DNA unit was shut down soon afterward, and it remains closed.

Police officers and prosecutors vowed to retest DNA evidence in every case where it was used to obtain a conviction. The size of that job, far smaller than the one called for by experts in the Rodriguez case, has involved many thousands of hours.

"It's massive," said Marie Munier, the assistant district attorney supervising the re-examinations. "If you had asked me when it happened would it take us over two years to complete this, I would have said: 'You're crazy. No way.' "

"Maybe if they'd gotten 50 or 100 people," she added, "they could have gotten it done faster."

Ms. Munier said retesting had resulted in one exoneration, that of Josiah Sutton, who was released last year after serving more than four years for a rape he did not commit.

Though DNA is often thought of as a tool for exonerations, prosecutors in Mr. Sutton's case had used it to convict him, submitting false scientific evidence asserting that there was a solid match between Mr. Sutton's DNA and that found at the crime scene. In fact, 1 of every 8 black people, including Mr. Sutton, shared the relevant DNA profile. More refined retesting cleared him.

Ms. Munier said her office had overseen retesting in 360 DNA cases so far. "In 18 cases, they were unable to confirm the original H.P.D. results," she said, referring to the Houston Police Department. "In 21 cases, I am told by H.P.D. that additional testing is in progress because the first tests did not confirm the original results. In six cases, the retests confirmed the original inclusion or exclusion, but the H.P.D.'s statistical analysis was off."

She said that defendants and their lawyers were being told of these results, and that they were free to file motions contesting their convictions.

That approach has critics.

"In Harris County," said William C. Thompson, a professor of criminology at the University of California, Irvine, who has followed the crime laboratory scandals closely, "defendants were prosecuted with flawed scientific evidence and defended by court-appointed lawyers who lacked the knowledge and resources to challenge it and complain about the injustice. Now that the scandal has come to light, the system is relying on the same inept, timid lawyers to make it right."

There were signs of problems in Mr. Rodriguez's case from the start.

On Feb. 24, 1987, two men abducted and raped a 14-year-old girl. One, Manuel Beltran, confessed. Mr. Beltran and his brother Uvaldo said the second rapist was Isidro Yanez. Mr. Yanez's car was used in the abduction. The victim selected Mr. Yanez and Mr. Rodriguez from photographs before identifying Mr. Rodriguez as the second rapist.

Mr. Rodriguez had an alibi: he was working at a factory that made bed frames at the time of the rape, and his boss swore to that in court.

So it was Mr. Bolding who provided the crucial testimony against Mr. Rodriguez. He said Mr. Yanez's blood type categorically excluded him as a possible rapist.

"Is he a possible donor of the semen?" a prosecutor, Bill Hawkins, asked at the trial, referring to Mr. Yanez.

"No, sir," Mr. Bolding responded, "he is not."

In his opening and closing statements, Mr. Hawkins hammered this point home. "Scientific evidence really nails this man to the wall," he said of Mr. Rodriguez. It "shows beyond a doubt that Isidro Yanez could not have committed the offense."

Yet recent court-ordered DNA testing shows that Mr. Yanez's DNA profile matches a pubic hair recovered at the crime scene.

Mr. Hawkins did not respond to a message seeking comment. Nor did Jack Roady, the prosecutor who has been supervising the retesting in the Rodriguez case, or Chuck Rosenthal, the Harris County district attorney. Through a prison spokeswoman, Mr. Yanez, who is serving time for kidnapping, declined a request for an interview.

Mr. Bolding's misstatement was fundamental and egregious, the experts' report said.

"There is absolutely no scientific basis for Bolding's testimony that Isidro Yanez could not have been the donor of the semen samples," the scientists wrote.

Dr. Johnson, the former DNA laboratory director, agreed. "That's kindergarten stuff," she said.

Mr. Bolding, speaking generally, said his conclusion was scientifically defensible. "You can have as many experts as you want," he said.

Mr. Rodriguez, now 43, said his 17 years behind bars had ruined his life and torn his family apart. He has four daughters and a son, though he has not seen anyone in his family for many years.

"My mom came to visit me a couple of times," he said in a telephone interview. "I'd say about four or five times since I been locked up. Of course, that was back in the early 90's."

Now, though, he said, he is growing optimistic.

"It feels good to me to know what's going on and to prove my innocence," he said.

Mr. Bolding retired in 2003 after police investigators recommended that he be terminated for various professional and supervisory failures, including submitting false information to auditors in 2000 and 2001.

Last month, a judge in Midland, Tex., dismissed perjury charges against Mr. Bolding, saying the statute of limitations had expired. In that case, Mr. Bolding was accused of overstating his academic credentials in a 2002 sexual assault trial. He said a court reporter had transcribed his testimony incorrectly.

Maureen Balleza contributed reporting for this article.
Copyright 2004 The New York Times Company

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