Driving down a street, a woman recognized the hat of a young man who had attacked her just five days prior. This random person wearing the recognized hat was 16 year old Josiah Sutton. She then accused him of raping her. Sutton was adamant in proclaiming his innocence. He was more than willing to provide investigators with his blood and saliva samples. In July of 1999 these samples were they key evidence to his conviction.
A sample of semen found in the woman’s car was tested by Houston Crime lab. The jurors believed that they had an easy decision to make in this case as they were told that the Houston Crime Lab concluded the chances of another African American sharing the same DNA pattern of Sutton were 1 in 674,000. Another analyst went on to explain to them that the only way another person would share the same DNA would be if they were identical twins. However, that just isn’t true. Science now proves otherwise.
Four years after this case was closed, many new advancements in mixed-DNA had been made proving that this theory was not correct. Ordered by Gov. Rich Perry, Sutton was then released from prison and compensated $118,000 after a new test confirmed that the DNA profile used to put him away actually had the possibility of belonging to as few as 1 in 16 African American men. After this new evidence, Texas may be releasing more and more wrongfully accused rapists.
This is truly an epidemic for the state of Texas. 25,000 cases have used this method of DNA testing. Who knows how many wrongful convictions have not been caught? For years, jurors have been told by prosecutors and expert witnesses that the chances of the mixed DNA used in cases belonging to someone else rather than the defendant were 1 in over a billion. Today, we now know that stat is greatly reduced to 1 in less than 100.
“We have to start identifying the cases and whittling the case list down,” aid lawyer Lynn Robitaille Garcia, general legal counsel at the Texas Forensic Science Commission, said during the group's meeting last week. “We have a duty to correct this.”
This meeting focused on exactly how they would even begin the process of reviewing the massive number of cases. All of the forensic experts and prosecutors were in agreement that their first plan of action needs to be to examine DNA testing procedures in every crime lab in Texas to ensure that all current cases are being tested correctly. This will not be as big of an issue as the reviewing of all of the past cases will be. Garcia says, “There is no question that this cannot be done without additional help.” Garcia is already prepared to have to ask the governor for financial help to make this right.
The District Attorney in Galveston, Jack Roady, has already began taking action in his county. A few weeks ago, he saw exactly how massive this issue is. In a murder case, while the DNA testing had shown that the mixed DNA had a likelihood of belonging to someone other than the defendant was 1 in 1.4 billion, the new method of testing showed that the stat was actually 1 in 38. Roady says, “That was the first evidence that we had — and a lot of people across the state had — that this was a significant issue.” He has since then continued all cases using mixed-DNA so they can be sent back for retesting.
Now, Galveston, being labeled as the “guinea pig”, because of their smaller size, is on a quest to find the most effective way to review over 1,000 cases which relied on mixed-DNA to see which ended in a conviction. Other counties are relaying on Galveston to find the fastest method so they can mimic it. Harris County is one of those counties relying on Galveston. Inger Chalnder, of the Harris County District Attorney’s Office, is assuming they will have a few thousand cases to review. They also have over five hundred pending trial. She says, “We already knew that manual labor would be a part of this. Once we say, 'This was done wrong,' every single defendant affected is entitled to know.”
The hard part in this epidemic has not even begun. Once Texas finishes its review of the 25,000 cases effected in this and figure out which of those ended in convictions, they will have to help each of those defendants find attorneys in order get their writs filed. Then, the state will have to ensure the prosecutors have enough available resources to handle the multitude of appeals.
“How do we proceed from here? It's so intimidating to wrap your mind around how you can accomplish everything that needs to be done efficiently and effectively and fairly. Because at the end of the day, if even one person was wrongfully convicted based on mixture evidence, that is a horrible travesty,” exclaims Chandler in one interview with the media. She says she is having a hard time as to where to even begin this process of review. She is unsure as to begin reviewing all cases that used mixed DNA testing or does she wait for the defendants to request a new test for themselves.
As a Johnson County, KS criminal defense attorney, I am well aware of the problems surrounding DNA evidence. It is not exclusive to Texas because Kansas has its issues as well.