DA's New DNA Policy Still Might Not Find Past Mistakes

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A non-working DNA lab and lack of proper policies were among the biggest contributors to the wrongful incarceration of Ricardo Rachell, District Attorney Pat Lykos said today at a press conference in the Criminal Justice Center.

Lykos and Houston Police Chief Harold Hurtt apologized to the public and to Rachell, who was exonerated by DNA evidence in 2008 after serving five years of a 40-year sentence for child molestation. (Andrew Wayne Hawthorne, who in 2008 pleaded guilty to three charges of sexual assault, was charged last month in the assault of the 8-year-old victim who had identified Rachell as his attacker.)

"I want this to be a catalyst," Lykos told reporters. "Something has got to come out of this tragedy."

While Lykos cited a "systemwide failure" including human error, she and Hurtt stressed that the DNA evidence may have been timely tested if the HPD's crime lab was operating at the time. Lykos also stressed that her office's new policies include the testing of all DNA evidence prior to trial. Both Lykos and Hurtt called for the creation of a regional crime lab, which would expedite future testing.

"We must - and we will - do better," Hurtt said, adding, "There is no reason why the mistakes of the past should occur."

A nine-page report from Lykos and Hurtt summarized the case and the corresponding errors that sent an innocent man to prison. The report includes the following:

-- "The closure of the Houston Police Department's crime lab was the most egregious system failure...It should be noted that the DPS lab was so back-logged that it took over seven months to test the Rachell biological evidence and prepare a report."
    -- "The Harris County Office of District Attorney at this period of time had no policy requiring testing of forensic evidence before trial. Prosecutors did not request testing; a consideration may have been the delay that would have been occasioned in seeking a laboratory and the time it would have taken to test."
    -- "The responding police officers did not document a description of the complainant's assailant; this ommission may have contributed to the misidentification of Rachell."
    -- "Juvenile sex crime investigators did not discern a pattern in attacks on children virtually identical to the victim in the Rachell case, the first of which occurred less than a month after Rachell's arrest. Eventually, crime analysis determined the pattern and Hawthorne was arrested and successfully prosecuted. But no one took a second look at Rachell's file."

While the report's acknowledgment of errors is certainly encouraging, Hair Balls couldn't help but shake the feeling that maybe not all lessons have been learned.

In response to a question about how much other untested DNA evidence might be languishing on the shelves, Lykos said that, in some cases, DNA testing is not "necessary" because of the weight of other evidence. But if you step back from the looking glass and run that response through a Logic-O-Meter, you will see that no DNA testing was "necessary" to convict Rachell. Police, grand jurors, and prosecutors all thought the victim's identification was enough evidence to proceed.

So who exactly decides when testing is "necessary"?

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