Gary Alvin Richard; Wrongly Convicted Man Released after 22 Years
By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair
They are called “experts.” Prosecutors parade them into court dressed in respectful suit ware and carry resumes packed with a laundry list of degrees. They then testify about the science of “forensic evidence” in ways that more often confuse rather than clarify the issues being tried in a criminal case. Worst yet, many of these “CSI” experts testify falsely, or in misleading fashion, about test results they either did not perform correctly or whose results they manufactured to fit a given prosecutorial objective. Incompetent or unethical “forensic experts” are a criminal defense attorney’s worst nightmare.
The Houston Chronicle (April 25, 2009) carried a report about yet another Harris County case where an potentially innocent person spent 22 years in prison for a rape and robbery he did not commit because of false testimony and faulty “forensic evidence” from the now thoroughly discredited Houston Police Department’s (HPD) crime lab. The case involves Gary Alvin Richard who was released after 22 years in prison on his personal recognizance. Mr. Richard was convicted by a jury in connection with a 1987 attack on a nursing student who was abducted from a local Laundromat, robbed, and taken to an abandoned apartment where she was repeatedly raped.
During a seven-month period after the attack, the victim called the police twice to report that she had seen the man who assaulted her. The HPD did not respond to these calls. Seven months after the attack the victim called the police department a third time to report that she had just seen her attacker in a store. This time the police responded to the call and arrested Richard. Although Richard had a minor criminal history involving petty drug use, there was no violence in his record.
The victim’s mistaken identification of Richard was supported by forensic evidence developed by the HPD crime lab. New tests conducted on that same evidence on April 24 revealed that the crime lab analyst not only lied to the jury but withheld evidence that was exculpatory to Richard.
To begin with, the HPD crime lab reached what the Chronicle called “conflicting conclusions about the evidence” but chose to report only the evidence favorable to the prosecution. The crime lab’s supervisor, James Bolding, testified for the prosecution about tests conducted by crime lab analyst Christy Kim who had previously produced tests that wrongfully convicted Josiah Sutton, who was eventually exonerated in 2001.
“Bolding told jurors that Richard’s body fluids,” reported the Chronicle, “such as saliva and semen, give no indication of his blood type, a status known as ‘non-secretor.’ Only 20 percent of the population share this trait. He also told jurors that semen from the rape kit showed no signs of the suspect’s blood type—a coincidence that he said pointed to Richard [as the rapist].”
The prosecution emphasized the importance of Bolding’s testimony in its closing argument. “Perhaps the most importance evidence,” Assistant District Attorney Rob Kepple told the jury, “the things she couldn’t even tell you about when he was arrested, the blood type. Right there. That 20 percent alone is good evidence.”
After three high profile exonerations based on faulty forensic evidence generated by the HPD crime lab, including the Josiah Sutton case, Houston Mayor Bill White commissioned former U.S. Justice Department official Michael Bromwich to investigate the crime lab and reexamine many of its previous test results. It was Bromich’s investigation that uncovered the unethical conduct in the Richard case. He examined the crime lab’s notes which showed that the semen from the lost rape kit came from a non-secretor and that Richard’s blood type is that of a secretor. Lab supervisor Bolding did not tell the jury about this evidentiary contradiction and the prosecution did not disclose it to his defense attorney. Richard was convicted by the jury and sentenced to life imprisonment.
Bromwich was forced to go by the crime lab’s note because someone with the crime either deliberately destroyed or conveniently lost the “rape kit” precluding any future DNA analysis. Without the kit, Richard’s attorney, Bob Wicoff, was forced to send his client’s body fluids to a California lab that reached a conclusion that Richard is a “secretor” and, therefore, is likely innocent. This conclusion supported the same conclusion reached by the HPD crime lab but which was suppressed in order to insure Richard’s conviction.
“He could not have been the source of the semen at the crime scene,” Wiscoff told the Chronicle.
After 22 years in prison, Mr. Richard has been ordered released on a personal recognizance bond. The Harris County District Attorney’s Office is deciding how to proceed. Richard’s lawyer, Bob Wicoff deserves a hardly congratulations.
With more than 230 DNA exonerations in this country, forensic science has found its credibility under increasing professional attack within the scientific and legal communities. On February 18, 2009, the National Academies issued a report titled “Badly Fragmented Forensic Science System Needs Overhaul: Evidence to Support Reliability of Many Techniques is Lacking” which found that “strong leadership” is needed in the forensic science system to promote an aggressive agenda to strengthen forensic science.
“Reliable forensic evidence increases the ability of law enforcement officials to identify those who commit crimes, and it protects innocent people from being convicted of crimes they didn’t commit,” said Senior Circuit Judge Harry T. Edwards of the D.C. Court of Appeals and co-chair of the committee involved with the report. “Because it is clear that judicial review alone will not cure the infirmities of the forensic science community, there is a tremendous need for the forensic science community to improve.”
The report strongly urged Congress to set up a new and independent National Institute of Forensic Science that could not only lead the way in strengthening the science but could also create and enforce standards for forensic science professionals and laboratories.
Constantine Gatsonis, professor of biostatistics and director of the Center for Statistical Sciences at Brown University, was also involved in the Academies study and also strongly supports the creation of a National Institute of Forensic Science. “An organized and well-supported research enterprise is a key requirement for carrying this out,” she said following the release of the Academies report.
In its February press release, The National Academies said that “to ensure the efficacy of the work done by forensic scientists and other practitioners in the field, public forensic science laboratories should be made independent from or autonomous within police departments and prosecutors’ offices. This would allow labs to set their own budget priorities and resolve any cultural pressures caused by the differing missions of forensic science labs and law enforcement agencies.”
The report stopped short of calling for a judicial review of pending cases or cases that have already been tried, which involved forensic evidence. Such a review, however, has become critically necessary. Michael Bromwich’s June 2007 report about the HPD crime lab found hundreds of “serious and pervasive” mistakes made by the lab’s DNA and serology department in forensic cases. Bromwich investigation examined 3500 cases processed by the crime lab in the preceding quarter century, including Richard’s.
“The crime lab’s substandard, unreliable serology and DNA work is all the more alarming in light of the fact that it is typically performed in the most serious cases, such as homicides and sexual assaults,” Bromwich’s report found.
The Bromwich investigative team specifically examined 135 DNA cases handled by the crime lab between 1992 and 2002. The investigators discovered “major issues” in 43 of those cases. More disturbingly, the investigators also found “major issues” in four of the 18 death penalty cases it reviewed.
While the crime lab’s DNA/serology departments were shut down in 2002, five years before the Bromwich report, and even though current Harris County District Attorney Pat Lykos and scores of other officials are pushing for the creation of a “regional crime lab,” the Richard case begs review of every case where forensic evidence was used to send an offender to the Texas prison system. A regional crime lab may serve future benefits, but it does nothing to help those who have been wrongfully convicted and who are languishing in the state’s prison system.
While Richard’s case is the first of 160 cases identified by Bromwich as having problematic serology tests produced by the HPD crime lab to claim “actual innocence,” there is no way to adequately measure the number of other offenders currently incarcerated because of the same kind of faulty forensic science and false testimony like those used to convict Richard. The recent report by The National Academies lends additional credence to the need for a reexamination of all cases involving forensic science. After all, Texas leads the nation with nearly 40 DNA exonerations and scores of other “actual innocence” exonerations based on faulty forensic science.
The Texas criminal justice system has a legitimate interest in seeing guilty criminals convicted and isolated from the community. But is also has an equal responsibility to make sure that no one else like Gary Alvin Richard spends 22 years in prison for a crime he or she did not commit.
The Texas Court of Criminal Appeals last June established the Texas Criminal Justice Integrity Unit charged with the responsibility of investigating and correcting weaknesses in the state’s criminal justice system.
“This is a call to action to address the growing concerns with our criminal justice system,” wrote Court of Criminal Appeals Judge Barbara Hervey at the time. “Although we applaud all previous studies and dialogue, it is now time to act and move for reform.”
Hervey said the court would work closely with Gov. Rick Perry and state Sen. Rodney Ellis, D-Houston, seeking guidance from various innocence projects and legal clinics in a concerted to identify potential problems and implement corrective measures. Some of the issues Harvey said the Criminal Justice Integrity Unit would address included but was not limited to the following:
Quality of legal representations for poor criminal defendants.
Improvements in witness identification procedures.
Overhauling, and creating new, standards for the collection, preservation, and storage of evidence.
Create a review process for cases of current inmates who may have been wrongfully convicted.
Appointed to the Integrity Unit by the Court, Sen. Ellis praised the court for its creation of the unit by “stepping forward and showing some leadership. We know the problems and we know some of the solutions. We can put a dent in the problem.”
That “dent” would be best served if the Integrity Unit established a “review process” for all those cases involving forensic science evidence. A reexamination of that evidence would insure that guilty offenders were properly convicted and justly incarcerated, and that innocent offenders would be set free.
Because of all the recent revelations and developments in the forensic science system, criminal defense attorneys now have an increased responsibility to challenge all forensic evidence offered at a criminal trial; to demand the methods used for gathering, processing, and preservation of that evidence; and to request for discovery all notes by any analysts testing the evidence. Defense attorneys can no longer take this evidence as “scientifically” infallible. Not only must they thoroughly cross-examine these pro-prosecution witnesses about testing methodology, they must also identify all the analysts or support personnel involved in the testing process. Finally, defense attorneys must press for disclosure of testing mistakes made by the testifying “expert” as well as all other mistakes made by others in the crime lab for which he works. This information goes to the heart of “reliability” of the expert testimony, an issue open to cross-examination in Texas criminal trials.
By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair