A DISTRICT ATTORNEY’S OFFICE IN NEED OF REFORM

Ethical Lapses, Forensic Impropriety and Extreme Carelessness; Another Day at the Harris County Criminal Justice Center

By Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair

In October 2002 two young boys were playing together in downtown Houston when they were approached by a stranger who offered them money in exchange for removing some trash. One of the boys, who was eight years of age at the time, was lured into a nearby vacant house and sexually molested by the stranger.

Based on information supplied by the boy’s mother, Houston police officer Lisa Clemmons arrested a neighborhood resident named Ricardo Rachell for the sexual assault. The two boys identified Rachell as the attacker. That identification at the outset should have raised a red flag. Rachell has a terrible facial disfigurement caused by a shotgun blast years earlier. The molested boy did not mention any facial disfigurement to his mother when he initially told her about the sexual assault on the day it happened.

And the boy knew Rachell from seeing him around the neighborhood. The facial disfigurement caused Rachell to drool and he usually had a towel wrapped around his neck to wipe away the drool. While the young victim thought Rachell was “scary,” he did not identify the disfigured man as his attacker until the day after the sexual assault and only after his mother had talked to him about Rachell.

Officer Clemmons apparently did not perceive the significance of the boy’s failure to finger Rachell on the day of the attack. But she did collect biological evidence—clothing and medical swabs—from both the victim and Rachell. However, Rachell’s DNA was not processed so that it could be compared to biological evidence collected from the victim. Had Rachell’s DNA been properly processed and tested, he would not have been wrongfully convicted and sentenced to 40 years in prison in 2003.

In January 2008 Harris County Criminal District Court Judge Susan Brown issued a belated order that Rachell’s DNA be tested. In October the results of that testing disclosed unequivocally that Rachell was not the “stranger” who attack the boy. The wrongfully convicted man was released from custody on December 12, 2008 after six long years of protesting his innocence to anyone who would listen.

Why wasn’t the Rachell’s evidence processed and tested in 2002 as it should have been?

“That is a really good question,” Assistant District Attorney Roe Wilson responded after Rachell’s release. “It should have been tested. The defense attorney also could have requested testing.”

Rachell’s attorney, Ron Hayes, said he was not aware of the biological evidence when the case went to trial.

The Rachell case sounds eerily similar to another Harris County case—the Naon McKewn Williams case. The Fifth Circuit Court of Appeals on December 10, 2008 was forced to reverse Williams’ capital murder conviction based on ineffective assistance of counsel. See: Williams v. Quarterman, Slip Opinion No. 05-20350 [Lexis and F.3d cites unavailable but decision can be retrieved through a Findlaw search].

Ten years before Rachell’s victim was sexually assaulted, Williams and a friend named Vaal Guevara, accompanied by Guevara’s friend Elaine, went to the apartment of Adonius Collier in Houston to arrange a drug transaction. At the apartment with Collier was a friend named Ammade Rasul and Rasul’s girlfriend, Stephanie Anderson.

After some preliminary discussions, the two groups agreed to complete the drug transaction at a nearby park. The groups traveled to the park in several vehicles. Once at the park, it was decided that Williams, Guevara, Collier and Rasul would go into some nearby woods and complete the drug transaction.

Williams was armed with a .25 caliber pistol and had a shotgun hidden under his clothing while Guevara carried a .22 caliber pistol. The two women who remained in the park heard gunfire erupt from the woods. Rasul testified that Williams shot him once in the face with the pistol and that he was shot a second time in the foot as he ran back toward the park. Forensic testimony at Williams’ trial linked the bullet removed from Rasul’s foot to Williams’ .25 caliber pistol.

Rasul and Anderson fled from the park and went to a local hospital to get medical treatment for Rasul. Anderson immediately reported the shooting to a Houston police officer. Police investigators were dispatched to the park where they found Collier’s dead body in the woods. Medical examiners conducted an autopsy on Collier, concluding that he had been shot in the head with a shotgun. The medical examiner recovered shotgun pellets from Collier’s cranial cavity and a spent and mutilated bullet.

The mutilated bullet, marked at “EB-1” at Williams’ trial, became a contentious piece of physical evidence. There were only four people present at the shooting scene: Collier, Williams, Guevara, and Rasul. With Collier dead and Williams not testifying, there were only two eyewitnesses testifying at trial: Guevara and Rasul.

Rasul testified that he ran away after Williams shot him in the face. While fleeing, he heard more shots – apparently one of them being the bullet that struck him in the foot. Rasul said he was shot before Collier was shot; therefore, he was not a real eyewitness to the actual shooting of Collier. That left only Guevara present when Collier was fatally wounded. As the Fifth Circuit pointed out, Guevara’s credibility was “very important” in assessing his version of the events. Although he initially testified that he did not fire his gun at all, he later admitted that he had fired his gun the in direction of Collier but did not hit him. He testified that he then ran after Rasul and never saw Williams shoot Collier, although he said he heard Williams say “no more witnesses” before hearing the shotgun blast and seeing Collier’s feet twitching.

The Harris County District Attorney’s Office called the county’s medical examiner, Dr. Brown, as an expert witness. Dr. Brown testified that the shotgun pellets killed Brown and that he was alive when struck by the shotgun blast. He based this conclusion on what the Fifth Circuit called a “red margin around Collier’s bullet wound.” Dr. Brown said this red margin indicated “blood pressure” at the time the wound was inflicted.

The prosecution bolstered the medical examiner’s testimony with the expert testimony of a Houston Police Department criminalist named Robert Baldwin. He gave quite specific and unequivocal testimony that the “EB-1” bullet came from a .25 caliber pistol like the one carried by Williams and not from a .22 caliber pistol like the one carried by Guevara. While Baldwin stated that he did not test fire either pistol, the criminalist testified that there was no doubt that his analysis was correct.

Williams was represented at trial by attorney Loretta Muldrow. She did not request an independent ballistics test or an independent autopsy or examination of the pathology report – even after learning that Baldwin had not test fired the two pistols. Muldrow would later testify at a state habeas hearing that while she had considered the theory that someone else shot and killed Collier as a viable defense, she did not develop that defense. She said her failure to seek an independent examination of the State’s “objective evidence” (presented through Dr. Brown and Baldwin) was based on the “faulty assumption” that the State had done an “adequate job” with its expert testing.

Williams was convicted and sentenced to death for the murder of Collier. He would later present strong credible evidence in post-conviction proceedings that he had been denied effective assistance of counsel. He retained his own experts to test the State’s evidence. A district court judge ordered the District Attorney’s Office to release Guevara’s .22 caliber pistol and its ballistics evidence. Before releasing that evidence, the District Attorney’s Office re-tested the ballistics evidence and learned that Guevara’s .22 caliber pistol had in fact fired the “EB-1” bullet. This evidence not only directly contradicted Guevara’s testimony but Baldwin’s testimony as well.

At the state habeas hearing Baldwin recanted his trial testimony and conceded that the “EB-1” bullet came from Guevara’s .22 caliber pistol. Williams’ habeas counsel also managed to secure an affidavit from Ronald Singer, the Chief Criminologist with the Tarrant County Medical Examiner’s Office, who stated that Collier had suffered two wounds to the head – one inflicted by a .22 caliber bullet and the other inflicted by a shotgun. Singer also stated that the bullet recovered from Rasul’s foot had not been fired by the .22 caliber pistol as Guevara had indicated. He said the “EB-1” bullet and the .25 caliber bullet removed from Rasul’s foot were “easily distinguishable.” Finally, he stated that Baldwin’s trial testimony “at best demonstrates extreme carelessness on his part and at worst calls into question his expertise.”

Williams’ habeas counsel also presented an affidavit from Dr. Andrew Krouse, Deputy Chief Medical Examiner in Tarrant County, who had been hired to examine the autopsy evidence and Dr. Brown’s testimony. Dr. Krouse not only refuted Dr. Brown’s testimony about the “red margin” significance, he said the pistol wound from Guevara’s gun carried a “high probability of fatality,” indicating that Guevara had actually killed Collier.

Williams’ habeas counsel bolstered these expert affidavits with two affidavits from jurors who said they would have voted differently had they known about the “correct” ballistics evidence.

The Fifth Circuit did not have any serious difficulty finding that Williams had indeed been denied effective assistance of counsel by Muldrow’s failure to seek an independent examination of the State’s evidence.

The Rachell and Williams cases reflect not only a pressing need but an absolute duty by any criminal defense attorney to push the Harris County District Attorney’s Office to the wall in every criminal case. Williams’ lawyer erred in 1992 by assuming that the District Attorney’s office had done an “adequate job” in its medical and forensic testing of the evidence against her client. Apparently Rachell’s lawyer did the same thing in Rachell’s case in 2002. DNA analysis had been around 14 years when Rachell was put to trial. It was, and remains, standard law enforcement practice to collect DNA and other biological evidence in sexual assault cases for forensic testing.

But the defense lawyers are not the ones at fault in these cases. Many lawyers over the years, acting in good faith believed in the Houston Police Department, its lab and the District Attorney’s Office to seek the truth and present a fair and honest case to a jury. The District Attorney’s Office bears tremendous ethical accountability for its handling of the physical evidence in both cases. It did not re-test the ballistics evidence in the Williams case until it was ordered to release the original reports to Williams’ counsel for the state habeas hearing. The results of that re-testing revealed that the prosecution’s chief witness had not only lied under oath but was actually the one who killed Collier.

The ethical lapse in the Rachel case is even more staggering. The District Attorney’s office was aware that Officer Clemmons had secure biological evidence from the child victim and a sample of Rachell’s DNA. It elected to prosecute, convict, and secure a 40-year prison term against Rachell knowing fully well that this critical forensic evidence had not been tested.

These two cases, ten years apart, reflect the compelling need for “ethical reform” in the Harris County District Attorney’s Office. It was reported by the Houston Chronicle that Rachell’s case is one of about 540 which have either been reviewed, or which are currently under review, by the District Attorney’s Office for possible forensic impropriety. The Chronicle report raises an interesting question: why didn’t the District Attorney’s Office itself discover the horrendous mistake made in the Rachell case during its review of these 540 cases?

Rachell’s appellate counsel requested an independent examination of the biological and DNA evidence in April 2007. It took eight months before Judge Brown ordered the independent testing, another ten months before the testing established Rachell’s innocence, and two more months before he walked out of jail a free man.

The Rachell evidence had been sitting for six years in an evidence room. The prosecutor who handled that case knew the evidence had not been properly processed and tested. He/she did nothing to correct that obvious error. Similarly, the prosecutor in the Williams case knew there was a reasonable possibility that Guevara had killed Collier with the .22 caliber pistol. He initially denied firing at Collier but later admitted that he shot in Coller’s direction but did not hit him. You don’t need a seeing eye dog to lead you to the obvious.

Whether incoming District Attorney Pat Lykos will undertake to reform the Harris County District Attorney’s Office, as Craig Watkins had done with the Dallas District Attorney’s Office, remains to be seen. What must be clear to every Harris County criminal defense attorney now is that you cannot trust the District Attorney’s Office. You can never, ever, assume that the office has done an “adequate job” in putting a case together – and you must always, as the first order of business, demand disclosure of all the State’s evidence. The Williams case also points to the need to request independent testing of all the State’s physical evidence. Nothing can be taken for granted. Nothing. There is a culture of fabrication, misrepresentation, and mendacity in the Harris County law enforcement community when it comes to forensic evidence. It has led to a legion of wrongfully convicted persons.

By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair