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.