Saturday, December 13, 2008

5th Harris County DNA exoneration an indictment of eyewitness IDs

Dallas has witnessed so many DNA exonerations (more than most states) mainly because the courts kept old biological evidence from rape cases for much longer than other jurisdictions so investigators could re-examine old cases. In Houston, all that old evidence was mostly destroyed or contaminated in the state's possession, so only a relative handful of more recent cases still have biological evidence available for testing.

Still, Harris County has seen its share of DNA exonerees, including a terrible story that came out this week from the Houston Chronicle ("5 years lost in prison before DNA got tested," Dec. 12):

Five years after he was wrongfully convicted of sexually assaulting a child, Ricardo Rachell will be released from custody today.

Prosecutors and Rachell's attorney appeared before state District Judge Susan Brown this morning to request the 51-year-old Rachell's release on a personal recognizance bond after DNA tests cleared him of committing the 2002 attack.

The judge agreed and the Harris County Sheriff's Office began the process of organizing his release.

Rachell, who was brought to Houston Wednesday night from a prison in Tennessee Colony, in East Texas, did not attend the hearing, nor did any members of his family.

After the hearing, Assistant District Attorney Roe Wilson said her office will work to ensure that Rachell's conviction is overturned.

"Our goal is to make sure justice is done. And today, that means making sure Mr. Rachell is out of custody and returned to his family," Wilson said.

I'm glad to see a Harris County prosecutor express the attitude that her goal is to pursue justice and not just convictions. Not only did the state fall down on the job, Rachell's defense attorney was given a police report informing him the biological evidence existed, but he claims he never saw that information and never requested testing.

Rachell's case was yet another instance of a false conviction caused by faulty eyewitness testimony, this time from two child witnesses:

In 2003, jurors convicted Rachell, who was severely disfigured by a shotgun blast to the face years before, largely based on eyewitness testimony from the 8-year-old victim and one of his friends.

Five years later, DNA tests show that Rachell could not have committed the crime and instead point to another man who is serving time for committing similar attacks, Rachell's lawyer Deborah Summers said.

Rachell has a serious facial disfigurement that was not identified in pre-identification witness descriptions by either child and which the actual perpetrator didn't share, but bizarrely, that didn't stop police putting his photo in a lineup nor a jury from convicting him. It's hard to imagine an 8-year old would both a) be able to identify his assailant and b) not have noticed the facial disfigurement and told investigators when he made his original statement. What could police investigators have been thinking to suspect this guy in the first place?

A recent Justice Project study found that 88% of Texas law enforcement agencies have no written policies on eyewitness ID procedures and the majority of those that do don't utilize best practices (like blind administration and cautionary warnings to witnesses that the suspect may not be there). DNA evidence has provided a unique window onto the causes of false convictions, with incorrect eyewitness IDs topping the list. However, there's no biological evidence available in the vast majority of cases where eyewitness testimony is used to secure convictions. That means, inevitably, there are quite a few more folks like Mr. Rachell languishing in prison who are just as innocent but have no way to incontrovertibly prove it.

MORE: I'm reminded by this terrible episode that corroboration of victim testimony is not required in Texas to obtain sex crime convictions, and while I understand this is because such cases are otherwise difficult to make, Rachell's conviction demonstrates why that's problematic: Two boys pick a man out of a lineup despite obvious discrepancies with the original witness description. No other evidence points to his guilt, but a jury convicts an innocent man based on their testimony. We've seen this over and over.

During Texas' 80th legislative session when the House was considering creation what turned out to be an unconstutional death penalty provision for child rape, I suggested adding language requiring external corroboration for victims and eyewitnesses in cases where they did not previously know the defendant, and Rachell's case seems to me to cry out for such a reform. If two boys can misidentify someone with such an obviously different visage from the actual perpetrator (how could they not notice that?), clearly their testimony was utterly worthless on its own; they could have (and did) identify anybody the police put in front of them.


Anonymous said...

Cosby said it best, "even a three year old knows when to lie."

And eight year olds definitely know how to lie.

Anonymous said...

His attorney said he didn't know of any evidence that could have been tested. So, either he committed the worst form of malpractice out there, or the evidence was withheld.

Be interesting to see which is the case.

Anonymous said...

"Two boys pick a man out of a lineup despite obvious discrepancies with the original witness description. No other evidence points to his guilt, but a jury convicts an innocent man based on their testimony. We've seen this over and over."

What ever gave you the impression that Texas juries evaluate evidence? Texas juries support prosecutors without question; first, because they are (quite reasonably) afraid to do anything else, and second, because their twisted moral reasoning holds that supporting the prosecutor is always the right thing to do.

Plug those facts into the equation, and the outcomes we have been living with over the last 20 or 30 years make a lot ore sense.

Anonymous said...

All these exonerations are making me sick??? We keep looking at the DA's but it seems to me to be the cops???? Some of these arrests are just plain old bad police work????

Anonymous said...

Its up to the DA to accept or not to accept the charges,not the police.You have to know how the system work.

Anonymous said...

Give me a break, the police arrest and some wet nosed ada tries to run with a case even if it is a crap case. Case in point last week pd arrested a kid for att. agg assault of a po.....but it was really evading arrest. ADA states yes it really may be evading arrest but we dont mess with pd or they become hostile and bad witnesses. Give me a break!!!! You need to learn who holds the power last blog. Heard it myself from the ada's... they take almost all that is brought forward.....they want no problems with pd. I have seen them charge poss cases with a flake of cocine. How about the ada charging a kid with drug manu for mixing cough syrup and kool-aid in the back seat of a car. In my town pd brings in silly stuff and it goes forward. Ever once in a while some defense lawywer gets a charge dropped and it is a retained lawyer at that. I watch person after peron get railroaded unless you want to snitch and give pd 5 cases.

Anonymous said...

Sorry for all the typos in the last blog. My keyboard is to small and the room is dark. I will think of more silly cases brought forward
for a later date. Guess what county it is???????

Anonymous said...

I've sat through several trials where the prosecutor states over and over that the words of the lawyers are not evidence; however a prosecutor uses his powers of persuasion to convince the jury like in this case that an eyewitness is convincing evidence. Don't heap all the blame on the police. The lawyers do a pretty convincing job in the courtroom so my solution is put everyone in the courtroom including the lawyers under oath and then let's see how many cases with bad eyewitnesses convince a jury. Those lawyers should have known and probably did that their eyewitnesses were bad.

Anonymous said...

This man was on the kids bike,what do you want the police to do.Geeeee
How about we call the ADA tell him what we have let him make the call.And a flake of Coke is breaking the law.You must be a Crackhead!

Anonymous said...

I would love to see a caring plastic surgeon donate free surgery to repair Rochell's face.

The poor man spends a lot of time hiding it behind towel.

What a horrible abuse of justice.

Anonymous said...

A lot of blame belongs with the police - a lot with the prosecutor.

Everyone involved in this case should be fired. There's no excuse for this.

Someone said "guess what county this is"

Would that be Harris or Galveston County?

Anonymous said...

Both the police and the DA bear full responsibility for this travesty of justice. Either could have stopped it if they'd thought for a minute.

So in my book, they are both fully responsible.

The DA should be charged with Abuse of Discretion by the ABA.

Anonymous said...

How would an accident in another country be allowed into a case?

I watched this happen in Harris County as a law student and the young man who was a part of the accident and defended by an incompetent attorney is still in prison because the person on the witness stand, who did not even see the accident was allowed, to lie and had been rehearsed on what to say during the trial and the jury was uneducated and found him guilty, not of what he was alleged to have done, but the lies told by the witness and the "wet nosed" ADA. The defense had the witness statement but the Judge would not allow it into the case and the attorney should have asked for a mistrial or been fired by the defendant, but was so injured he could not think well.

Hopefully, with the new DA, this will turn around and Harris Co. will get rid of some of the corruption that exists now.

cfc said...

When will prosecuting attorneys be held accountable for their actions? Never, because they are exempt. Who makes the laws? DUH Lawyers.

Anonymous said...

Anon 1:59 he was shot by another criminal that u people love so much.

Anonymous said...

It was Bexar County. Everyone knows all they have is wet nosed ada's for the most point. Some really good ada's in there but few and far between.

Some of you in North TX may not know how bad the drugs are in SA. We are overrun. So when you worry about a flake or becomes crazy to see. If you are one of those who want all drug users locked up then please feel free to hand over 90% of your check to taxes for prisons and then pick your shift to help the under paid and under staffed prison guards. When you work the streets you see the numbers and you cannot worry about little amounts with time. Maybe fines but not time. When I hear people that worry about such little amounts??? If the guy has a violent past then maybe????

Anonymous said...

I realize that "justice is blind" but this is ridiculous! To all those DA's obsessed with getting convictions and those defense attorneys whose inactions allow the persecution of the innocent, you might think that it's all fun and games... until somebody loses an eye! A conviction based upon testimony of a person who still believes in Santa Claus? Give me a break.

Anonymous said...

A man who died in prison while serving time for a rape he didn't commit was cleared Friday by a judge who called the state's first posthumous DNA exoneration "the saddest case" he'd ever seen.