September 10, 2007
For want of an attorney

This is a pretty damning article about the status of the defendants who were convicted in cases that involved tainted evidence from the HPD Crime Lab.

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.


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.


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."


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."

There's been a lot of talk about special masters, and I've said before that I think it should be the responsibility of an independent agent to own this process and see it through to the end. What's not clear to me is whether such a person would have the mandate - and the funding - to ensure that all affected defendants have an engaged advocate to take the cases that need to be thrown out to the courts. Grits makes a convincing argument that it should really be the function of a state-created and funded Innocence Commission. Since that can't happen until at least 2009, we come back to my question. Is a Special Master the right answer for this particular case? If not, what else is there? People's lives are at stake. We need to get this right.

Posted by Charles Kuffner on September 10, 2007 to Crime and Punishment