[FoRK] Three cheers for "scientific evidence"

Joseph S. Barrera III joe at barrera.org
Sat Aug 7 11:04:19 PDT 2004

The New York Times
August 5, 2004
New Doubt Cast on Crime Testing in Houston Cases

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 

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.

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