DNA Expert: "I think that we have a clear miscarriage of justice here"

01/30/2003

By Anna Werner / 11 News

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HOUSTON (KHOU) -- A DNA expert says a 16-year-old boy sent to prison for 25 years may have been convicted on faulty DNA evidence from the Houston Police Department crime lab.

He says, Josiah Sutton didn't get a fair trial and may very well be innocent. Sutton's is the latest case brought to light in an exclusive 11 News Defenders investigation of the HPD crime lab.

"He was always the one to look out for momma," Carol Batie remembers. "He was like the little man in my life."

Photographs help Batie remember a son she says was unjustly taken away, locked up for a crime she says he didn't commit.

"It's like, in a sort of way, that I'm in prison," Batie says. "I knew it was a mistake. I knew that they had the wrong person."

"I mean it seemed, ya know, like a dream. But I'm living it, no so actually, it's not," said Batie's son, Josiah Sutton.

Sutton has already served more than four years in prison. But he remembers that Friday afternoon. "I was walking to the store with two guys," he recalls.

Sutton was just 16 years old.

"Officer pulled me to the side," he says. "Me and the other two guys. Pulled us over."

So what was.the problem? Four nights earlier, a woman who lived at a nearby apartment complex was kidnapped at gunpoint, taken in her own car and raped by two men -- one wearing a baseball cap, the other a wool cap.

Then, that same resident had seen Sutton and his friend walking by, wearing what she said were the same or similar hats.

The two boys were arrested and charged with sexual assault.

"I pretty much -- shocked, y'know," Sutton recalls. "Like, who, me?**

But when the HPD crime lab wanted to test their DNA, Sutton thought he'd be in the clear.

"I said, well, y'know, when the test get back, I'll be outta here," he remembers.

The lab did clear Sutton's friend, but Sutton's lawyer had some bad news for him about his test results.

"He said, 'well, your DNA's positive,' Sutton recalls. "And I was like, how possible? Ain't no way! It's impossible!"

The result? A jury found Josiah Sutton guilty and sentenced him to 25 years.

"The testing results that they, the HPD crime lab, came back with, I mean, i was like...something's wrong," he says.

And now, it turns out he may be right.

"As I look over the test results in a case like this, I think, this is ridiculous!" says Bill Thompson, a nationally-known DNA evidence expert from California who's been reviewing cases from the HPD crime lab at our request..

"The quality of the work here, in this lab, is just grossly inadequate,' Thompson says.

So we gave him Sutton's trial transcript and the lab's test work.

"I think that we have a clear miscarriage of justice here," he says.

Why? First, in court, an HPD crime lab chemist testified that Josiah Sutton's DNA "pattern was detected" in the DNA found in the rape kit. And the prosecutor told the jury that there had been a "match."

And the HPD's lab report makes Sutton's DNA pattern sound pretty unique, that it would only "be expected to be found in 1 out of (every) 694-thousand people in the black population."

But Thompson says all of this is wrong. Why?

Because in a rape, the DNA of the victim - and in this case, the two rapists - gets all mixed up into a kind of DNA alphabet soup. And the ingredients of that soup -- the genes -- can be arranged and rearranged into not just Josiah Sutton's pattern, but thousands of different DNA profiles for different people.

As a result, Thompson says if police take any two black men off the street, the chance of one of them having a DNA pattern that could be found in those rape samples is not 1 in 694,000, but is instead, a one in eight chance.

So that could include thousands of other people.

"Thousands of people," Thompson says. "This supposedly unique match it could just be coincidence, could easily be a coincidence."

And Thompson says there are errors that are even more troubling, like the lab's attempts to get an accurate DNA profile for the rape victim.

"They tested her sample three different times and got two different DNA profiles!" he says. "This is, this is ridiculous! You cannot have a lab that is sending people to prison -- or even execution -- get inconsistent results when testing samples from the same person."

Thompson believes, "The procedures being used by this lab for typing DNA are simply not reliable."

And so for Josiah Sutton, Thompson comes to a conclusion.

"I think it's very probable that Mr. Sutton is innocent, based on this evidence," he says.

So we gave the news to Sutton's mother.

"For you to tell me -- this is something that I've been fighting for for years," she says. "I've been begging for someone to give me an answer."

Meanwhile, her son still sits in prison.

"I know they're wrong," he says. "And nobody can convince me different, to this day."

Sutton is one of hundreds of cases that may have been affected by problems in the lab. After The Defenders first reported on those problems, a state audit confirmed them. Now, hundreds of cases will be retested.

Friday on 11 News at 10pm, you'll hear what the jurors now say about the Sutton case and the problems The Defenders have discovered with the lab's work. You'll also hear what the prosecutor thinks about all of this.

One footnote: Months ago, The Defenders filed a request to look at three years of lab work done by the HPD and the police did agree to let us see them if we paid $20,000. The Defenders decreased the size of their request. Now the police say we can't look at the lab's work, work paid for with your tax dollars. The management of Channel 11 says it will fight this attempt to stop the public from knowing the truth even if it means going to court. In the meantime, we'll keep you informed.