Defendants affected by crime lab corruption go without legal aid

413 cases were in need of review due to crime lab inaccuracies. Most defendants have not received any legal help, and in some cases defendants have not been informed that their cases involved crime lab inaccuracies.

Sept. 9, 2007, 12:39PM
Legal help scarce in HPD Crime Lab cases
Majority of the defendants convicted with faulty evidence getting little aid

 

By ROMA KHANNA and STEVE MCVICKER
Copyright 2007 Houston Chronicle

Years after the DNA debacle at the Houston crime lab prompted scrutiny of hundreds of criminal cases, nearly two-thirds of defendants convicted with faulty evidence have received little help in determining how, or if, their convictions could be affected, the Houston Chronicle has found.

Private labs and independent investigators unearthed inaccuracies in the Houston Police Department’s work on more than 60 cases, finding that police analysts’ conclusions about biological evidence were wrong, overstated or unreliable.

But, in the majority of those cases, attorneys have not attempted to use new DNA evidence on behalf of defendants or even to investigate whether it was crucial to the case against them, according to a Chronicle review of court documents and interviews with dozens of attorneys assigned to these cases.

It is not clear whether any of the new evidence jeopardizes these cases or if HPD’s inaccurate work will lead to any more exonerations. Since the crime lab’s work first came under question in November 2002, two men convicted on flawed evidence have been released from prison and cleared in those crimes.

The Chronicle found 24 cases among the 61 in which attorneys appointed or hired to represent people in the crime lab controversy have taken little meaningful action with new test results. In 15 other cases, defendants received no representation at all.

Some had no clue their cases were even being reviewed.

Robert Hayden, convicted in a 1994 assault, discovered six months ago while searching the Internet that investigators had found major issues with the DNA testing in his case.

“No one contacted me or asked me if I wanted an attorney,” said 48-year-old Hayden, who completed his sentence and now lives with family near Atlanta. “All I want is to have an independent attorney look at this on my behalf.”

Interests unrepresented

Such cases exemplify the shortcomings of the bureaucracy constructed in 2003 as the Harris County justice system embarked on the massive and unprecedented review of cases that may have been compromised by the shoddy work of the HPD crime lab.Defendants’ interests have gone unrepresented for a variety of reasons, the Chronicle determined, based on interviews with officials throughout the justice system. For some, confusion about how much work attorneys are supposed to do on these cases prevented complete investigations. Others had no advocate at all.

“I have no doubt that there are people who never got notice that their cases were being represented … or that there were questions about what attorneys were supposed to do with these cases,” said Assistant District Attorney Marie Munier, who has overseen the effort to retest evidence and contact defendants. “Attorneys were not appointed just to read the retest results but to look at the facts of the case and, if there was a viable claim, to file it.”

A number of attorneys appointed to represent defendants told the Chronicle they had little recollection of being appointed to the cases and had not investigated them.

For example, when asked about what action he had taken on behalf of Erskin Harris — whose life sentence for an aggravated sexual assault included questionable HPD evidence — the attorney appointed to represent Harris, Tony Aninao, said, “I haven’t looked into that in some time. … This is a bad season for me.”

Likewise, the lawyer for the DNA retest of Luis Guevara, who received a six-year sentence for aggravated robbery, indicated the case was not a pressing priority for him.

“It’s just been one of those things that’s kind of been on the back burner,” attorney Mark Rubal said.

Attorneys appointed to crime lab cases have collected at least $190,000 in public dollars for their work, according to county records.

The Harris County District Attorney’s Office began to select cases in need of DNA retesting in January 2003, just as the sweeping forensics scandal began to unfold. HPD had shuttered its DNA lab late in 2002, the first development in a crisis that cast doubt on thousands of criminal convictions and prompted major reforms to the statewide crime lab system.

Prosecutors attempted to contact 413 defendants, sending letters to their last-known addresses and attorneys of record that said their cases would be reviewed.

Beginning in April 2003, District Judge Debbie Mantooth Stricklin held video conferences with more than 200 incarcerated defendants, and appointed attorneys to most.

Court officials could not say how many of the remaining defendants, who did not have video conferences, received appointed attorneys. Some already had representation and others, no longer in custody, could not be located, according to Kelly Smith, staff attorney for the Harris County courts.

“The courts don’t have any investigative power to find these people,” Smith said. “We cannot say what happened in those cases.”

The district attorney’s office did use investigators to try to locate defendants who had been released after completing their sentences, Munier said.

Many findings confirmed

But they were unsuccessful in cases such as that of Hayden, the man who discovered on the Internet that his case had been retested. Prosecutors sent notice to an old address in Houston and to his last attorney, who no longer represented him.The Chronicle located Hayden outside Atlanta.

“I have a hard time believing they really tried to find me,” Hayden said.

Private labs began to report the results of their DNA retests in 2003. In the majority of cases, retests confirmed HPD’s findings.

But in at least 31 cases, the retests discredited HPD’s DNA work and in another 30 cases, an independent investigation exposed major issues with the quality of work.

The Chronicle reviewed court records and attempted to contact the attorneys or defendants in each of those 61 cases.

Some attorneys recalled receiving results that might benefit their client but believed that they did not have the authority to further investigate the case.

Randall Ayers, appointed to represent a man convicted of a 1994 assault, said he believed his responsibility in the case was fulfilled after the completion of retests, which exposed errors in HPD’s work.

Ayers wrote to his client, Lonnie Van Zandt, who was living in a halfway house, to tell him of the results and inform him of his options for pursuing an appeal. But Ayers did not investigate how important HPD’s DNA findings were to the case.

“I really don’t know anything about the facts of the case,” Ayers said. “Once the DNA testing was done, it was pretty clear to me that I wasn’t appointed to represent him any further.”

Other attorneys said they believed they were to pursue appeals if new evidence required it.

“I was always under the impression that I would see these cases through,” said Shawna Reagin, who has represented at least 10 people on DNA retests. “But I am not surprised that so much has fallen through the cracks, because we never were one the same page about how to proceed.”

In fact, administrators of the Harris County courts could not say what judges expected of the appointed attorneys.

“I am not sure what the terms of appointments were,” said Smith, court counsel, “but the lawyers’ responsibility if they are not going to go forward is to make sure the court knows and makes sure someone appropriate is appointed to the case.”

After Chronicle inquiries about the lack of activity in some cases, the Harris County Criminal Lawyers Association outlined plans to make experienced appellate attorneys available to help lawyers representing clients who might benefit from DNA retests.

“We need to let folks know there are resources out there if they are not sure of how to proceed,” said President Patrick McCann.

Still, some defendants have yet to hear from anyone in the Harris County criminal justice system. That includes Jerry Gale Barefield, who has never had anyone appointed to represent him for his DNA retesting, which revealed “significant” statistical issues with HPD’s work.

Barefield was 33 when he pleaded guilty to a 1999 sexual assault. Four years later, the district attorney’s office reported that new tests on the DNA evidence in the case found no presence of male DNA. By that time, Barefield already had been released from prison.

In November 2006, Barefield returned to prison for failing to register as a sex offender.

“I’ve heard nothing (about the retest) at all,” Barefield said during a recent prison interview. “Other than contact from media, I’ve heard nothing at all.”

Despite such problems, local officials plan to use a similar process to review as many as 600 newly identified cases with other potential crime lab problems.

Those cases, identified in the a June report after a 26-month investigation, involve questions about HPD’s blood-typing evidence. The head investigator, former U.S. Justice Department official Michael Bromwich, has recommended that an outsider oversee the review of 180 of those cases in which HPD’s work had clear-cut problems.

But officials, including Mayor Bill White, Police Chief Harold Hurtt and Harris County District Attorney Chuck Rosenthal, have maintained that no independent supervision is needed.

“We have talked about whether we should change the procedure,” said Smith, staff attorney for the courts, “but right now it is the model we are going to use.”

roma.khanna@chron.com
steve.mcvicker@chron.com

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