Harris County District Attorney’s Office Discloses “Cascading, System-Wide Breakdown” Led to Wrongful Conviction and 6 Years Imprisonment of Innocent Man
By: Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair
On December 14, 2008, we posted a blog titled The Conflicting Faces of Crime. One of those faces involved the wrongful conviction of Ricardo Rachell in 2003 for the aggravated sexual assault of an eight year old boy. Rachell was released from custody in December 2008 after he was exonerated by DNA evidence. The Harris County District Attorney’s Office and the Houston Police Department undertook a joint investigation to determine what went wrong in the Rachell case. On March 12, 2009, the two law enforcement agencies released the “Rachell Report” (“report”) which concluded that Rachell’s wrongful conviction was the result of a “cascading, system-wide breakdown.”
The “breakdown” in the Rachell case actually began outside the system. The report states that on Sunday, October 20, 2002, the eight year old boy “was observed running down Griggs Road, waving his hands in the air and crying.” An elderly man went to the child’s aid by taking him to Wyatt’s Cafeteria. Two women then took the boy home. The child did not convey to any of these people that he had been sexually assaulted. “He just stated that a man had a knife and was trying to kill him,” the report said. He did not provide a description of the attacker to these witnesses either.
Once home, patrol officers from the police department were summoned. The boy told these officers that a man had tried to kill him. The report does not indicate if the boy told these patrol officers the man had either tried or had actually sexually assaulted him. The report only stated that:
“The details he gave officers that night was that he was offered ten dollars to pick up trash and the man took him on the man’s bicycle. The location where he was abducted was the 3700 block of Southlawn. Those first officers did speak with the Complainant’s six year old friend who was with him just before the suspect took Complainant on his bike. The six year old also conveyed that the Complainant was offered ten dollars to pick up trash and was on a bicycle. The only description of the suspect in the offense report is that he was an unknown black male, age 30.”
The following morning the boy’s mother kept her son out of school and at home. As she was returning home from taking another son to school, she saw Rachell who she believed was the man who had taken her eight year old son. This is where the initial breakdown began. The report does not indicate whether the boy had ever told his mother that the man had either attempted or had actually sexually assaulted him. The report does state that the mother gathered up two friends and the boy and went looking for Rachell. She found him walking down a street in the neighborhood.
“She asked her son if this person was the attacker; he replied affirmatively,” the report states. “She followed [Rachell] to his mother’s house and the police were called. Patrol officers arrived and find [sic] the mother in a verbal confrontation with Rachell. Rachell was placed in the back of the patrol car and the patrol officer pulled the Complainant aside and asked him if Rachell is the person who kidnapped him. The Complainant stated that he was the person. The Complainant told this officer,
M. Wilson, that Rachell had taken him to a vacant lot, pulled down his pants, and held him by his waist from behind. An adult female interviewed by the officer states she did not see the abduction, but observed [Rachell] in the area around the time of the Complainant’s ‘disappearance’. Officer Wilson calls DA Intake; ADA James Alston declined to accept charges and requested further investigation. Rachell is released.”
The case had become irreparably tainted at that juncture. The mother was convinced Rachell was the attacker. She took the boy, along with two of her friends for support, to find Rachell so he could be “identified.” Before the patrol officers could even arrive, the mother had engaged herself in a “verbal confrontation” with Rachell which only reinforced the “identification” of Rachell for her son.
Heeding Alston’s instructions, Officer Wilson continued the investigation through the day on October 21. The officer found a vacant home on Foster Street where there had been a forced entry, muddy footprints leading to a second floor bedroom, and bicycle tracks in the yard next door. These findings corroborated the boy’s story.
Later that same afternoon Officer Lisa Clemons, a member of the HPD Juvenile Sex Crimes Unit, was assigned to the case. She contacted the boy’s mother to make arrangements for the boy to be interviewed by the Children’s Assessment Center (CAC). In a subsequent interview with a CAC forensic interviewer, the boy admitted that he had been sexually assaulted by the abductor. The report states the boy added:
“He stated that [his attacker] is a bright-skinned black man with a messed up eye and no teeth. He stated that the man’s face got messed up because he was looking in people’s windows and someone shot him. When asked how he knows this, he responded that is what people say in the neighborhood. He stated that the suspect had a scarf in his mouth, had blue pants, a tee shirt, and had dark glasses on. He tells the interviewer that he had seen Rachell in the neighborhood once before, when Rachell was throwing rocks at some boys.”
Clearly, the child’s identification at this point had become hopelessly contaminated. The “people” in the neighborhood, led by his own mother and friends, had become consumed by a “lynch-mob” mentality. Rachell had to be the attacker. He rode a bike and he was terribly disfigured. And that is the most disturbing aspect of this case. At no point when the boy was assisted by the elderly man and two women following the attack, or when he interviewed by the initial patrol officers, or or when he interviewed by Officer Wilson did the boy state that he had been sexually assaulted by the disfigured man he knew as Rachell. Not even a child abducted and sexually assaulted by someone as horribly disfigured as Rachell would neglect to make this known to the police and his mother. Rachell became the “man on the bike” to the boy after his mother took him to Rachell’s mother’s home where she confronted the person “she” believed was responsible for her son’s abduction.
After the October 21 CAC interview, the boy was given a “sexual assault exam” by a registered nurse named Deborah Parks. After the examination, Parks delivered the exam’s kit to Officer Clemons.
Officer Clemons then proceeded to interview the boy’s mother who related to the officer the incident that occurred earlier in the day when she spotted Rachell and confronted him at his mother’s house. The report at this juncture significantly notes that the Clemons offense report “does not state the basis of the Mother’s initial conclusion that [Rachell] was the same person who had attacked her son.” In any event, Officer Clemons contacted Officer Wilson who confirmed the incident at Rachell’s mother’s house and that the boy had “positively identified Rachell.”
The mother also provided Officer Clemons with critical physical evidence. She had saved the clothes her son was wearing the day of the attack and placed them in a bag. She told the officer that her son’s underwear had a “yellowish cream substance” in the seat and this concerned her. After tagging them, Officer Clemons took the bag of clothes and rape kit to the HPD property room that same afternoon. The next day the officer filed a supplemental report requesting that evidence be analyzed by the Houston Crime Lab for fluid and fiber evidence. Why this was never done remains unknown.
After preparing her report, Officer Clemons spoke by phone to Assistant District Attorney C. Serna. The officer briefed the ADA on the investigation and the ADA approved a charge of “aggravated sexual assault of a Child” against Rachell. The next day, October 23, Officer Clemons went to the District Attorney’s office and personally presented the evidence in the case to Assistant District Attorney R. Freyer who accepted the charge and filed it into the Intake Division.
On October 24, 2002, Officer Clemons arrested Rachell at his residence and requested a voluntary sample of his DNA. He consented, provided the sample, and Clemons delivered it to the HPD property room. Officer Clemons also conducted a voluntary interview with Rachell who denied attacking the child and said the victim and his family were lying.
On December 12, 2002, Officer Clemons and Officer R. Rodriquez, who was also with the juvenile sex crimes unit, went to the boy’s school and showed him a “photo spread” that included Rachell. The boy identified him as his attacker. The officers then showed the same “photo spread” to the boy’s six-year-old friend who also positively identified Rachell.
While the report does not indicate one way or the other, it can be reasonably inferred that the other photos utilized in the “photo spread” were not of men who had horribly disfigured faces. That was like putting an elephant in a “photo spread” with five rhinos and asking an attack victim to identify the animal with the trunk that attacked him.
Assistant District Attorney J. Musick drew the Rachell case for prosecution. She presented the evidence to a grand jury which returned an indictment against Rachell on January 30, 2003. While the offense reports prepared by Officer Clemons contained references to DNA evidence, ADA Musick did not request that the crime lab analyze that evidence.
Rachell’s trial was set for June 2003. Before the case could be tried, ADA Musick left the District Attorney’s Office. The Rachell case was passed to ADA J. Ortiz. The report clearly states there were “notes in the file to indicate that he [Ortiz] was aware that a sample of the Defendant’s DNA had been obtained; however, he did not request tests be performed to compare that sample to the rape kit and the clothes of the Complainant.”
The report then turned its attention Rachell’s court-appointed attorney, Ron Hayes. Known in the Harris County legal community as a competent and thorough criminal defense attorney, Hayes did not “request that his client’s DNA be compared to the rape kit or the clothes obtained from the Complainant.” Hayes stated publicly after Rachell’s DNA exoneration that he was not aware of any DNA evidence. The report pointed out, he examined witnesses during the trial “regarding the Defendant’s buccal swab and the child’s clothing and he elicited testimony to the effect that there were no forensic tests conducted. He also presented this lack of testing to the jury during his closing argument.”
During the years 2002 and 2003, the Houston Crime Lab was a major story in Harris County because of disclosed mishandling of forensic evidence, professional incompetence, and even manufactured evidence by the crime lab. DNA evidence—and its potential to exonerate wrongfully accused individuals—was the prevalent legal issue in Harris County in those years. It is, therefore, inexcusable from any perspective that the Rachell case was allowed to go to trial without the DNA evidence being tested.
The trial itself could be compared to a “Greek tragedy.” The boy’s mother testified and was asked why she believed Rachell was the man who attacked her son. “She stated it was based on the description that her son had given her the night before,” the report said. “That description was: blue pants, blue jeans, blue shirt, dark sunglasses, black shoes, and a towel in his mouth. She did not mention the deformed face. She acknowledged that when she saw the Defendant on the Monday morning she was not sure it was he, so she went home and picked up the Complainant and when he said that Rachell was the one, she knew it was he.”
The boy victim and his young friend also testified at trial and identified Rachell as the abductor/attacker. On cross examination defense attorney Hayes asked the boy victim if he noticed anything unusual about Rachell as he sat in the court room. The boy replied that Rachell’s “haircut” was unusual. He did not mention the disfigured face. The young friend testified that the attacker had worn a rag around his face as though it was a mask and had a patch over one eye.
The jury convicted Rachell on June 3, 2003, despite two jurors expressing serious reservations after the verdict because of the mother’s role in the identification process. The jury assessed Rachell’s punishment at 40 years in prison. He was shortly thereafter committed to the custody of the Texas Department of Criminal Justice.
Following the denial of his direct appeal on September 30, 2004, which had been handled by attorney Shawna Reagin, Rachell filed a petition for a writ of habeas corpus on September 11, 2005. The petition was filed with the assistance of fellow inmates. Two years later, November 7, 2007, the habeas application was denied.
Prior to and after Rachell’s conviction, the same neighborhood in which he had lived experienced a series of sexual assaults on children committed by a man on a bicycle promising the children money in exchange for work. Rachell sent news clippings about these assaults to his attorneys, and while Hayes would later state in an affidavit that he didn’t think the other sexual assaults merited investigation, Ms. Reagin apparently made them part of the appeal record.
On September 21, 2007, Rachell sent a letter to sex crimes unit Officer Rodriquez who had investigated and arrested Andrew Wayne Hawthorne in connection with the other serial rapes. Rachell told Officer Rodriquez that Hawthorne, who had become known as the “Yellowstone Park Serial Rapist,” was the man who raped the boy that he [Rachell] had been convicted of raping.
Rodriquez turned the letter over to a Lt. Staney, and while he acknowledged a similar modus operandi in the two cases, he “distinguished the facts of Rachell’s case from that of Hawthorne. But he did ascertain there was untested forensic evidence in Rachell’s case and requested a DNA comparison of it.
Undeterred by these setbacks, Rachell continued to press his claim of innocence. He filed what is known as a Chapter 64 request for DNA testing. on April 19, 2007, 185th Judicial District Court Judge Susan Brown appointed Deborah Summers to represent Rachell.
There was hope in the air, but it dissipated somewhat 8 months later when ADA S. Ring, who handled all Chapter 64 requests in the District Attorney’s Post Convictions Division, reviewed the file in the Rachell case, telephoned Lori Wilson at the HPD Crime Lab, and instructed her not to do any DNA testing in the Rachell case “because the Chapter 64 request was still pending.”
The report explained how: “Defense attorney Summers failed to file a Chapter 64 motion that would begin the process that would result in the testing of biological evidence; therefore Assistant District Attorney Ring proceeded to obtain affidavits from the Harris County Clerk’s Office, the HPD Property Room, and the HPD Crime Lab: Ring filed a motion in the 185th District Court on March 10, 2008 requesting that the trial court find that Mr. Rachell met the requirements of Chapter 64 and the trial court order[ed] DNA testing in the case. Evidence was sent to DPS testing on March 11, 2008. Ring requested that Mr. Rachell be bench warranted from TDCJ-ID so that a fresh buccal swab could be taken.”
In the end, it took a professional and diligent assistant district attorney to set the wheels in motion that would ultimately free Ricardo Rachell from his wrong conviction. Sally Ring had to accomplish what several assistant district attorneys and Rachell’s own court appointed attorneys had been unable to do—get the biological evidence DNA tested. This became a reality on October 28, 2008 when DPS issued a report that stated Rachell’s DNA did not match the biological evidence collected in the case.
By this time, ADA Ring had left the District Attorney’s Office. Her replacement, ADA Mark Donnelly, picked up the ball with the same professionalism exhibited by Ring. He requested that Rachell be “bench warranted so that the District Attorney’s Office could agree to a personal bond releasing Mr. Rachell from custody while a Writ was prepared and filed that would lead to the case being dismissed.” At this point attorney Summers joined with ADA Donnelly to have a bench warrant issued.
On December 12, 2008, the DPS lab issued a report that the DNA evidence “identified Andrew Wayne Hawthorne” as the real attacker of the boy in the Rachell case.
The following day, December 13, Judge Brown declared Rachell innocent and ordered him release from custody. One month later, January 13, 2009, Harris County District Attorney investigators, Dennis Field and Donald Wine, drove to the Hughes Unit in Amarillo where they interviewed Hawthorne and obtained a written confession from him.
On February 24, 2009, Hawthorne was formally charged with aggravated sexual assault of a child—the same child Ricardo Rachell had wrongfully spent six years in prison for raping.
As the District Attorney’s Office prepares for its prosecution of Hawthorne, Ricardo Rachell is preparing to undergo a series of plastic surgeries that will hopefully reconstruct his face. The surgeries will be performed by a team of volunteer surgeons led by Drs. Joe Agris, Jeffery Friedman, Norman Rappaport, and Larry Hollier. The surgeries will take place at the Methodist Hospital and their costs picked up by the Zindler-Agris Foundation.
District Attorney Pat Lykos’ office should be commended for putting the Rachell Report in the public arena. There was indeed a “system-wide breakdown” in the Harris County criminal justice system that resulted in Ricardo Rachell’s wrongful conviction. And there is more than enough blame to spread among a lot of folks, but it must be remembered that in the end it was former ADA Sally Ring and current ADA Mark Donnelly who stepped up to the plate and corrected the terrible wrong done to Rachell.
It is unfortunate, however, that the report attempts to saddle equal blame between law enforcement and Mr. Rachell’s court appointed attorneys. It is the State of Texas through its law enforcement agencies, not the solo court appointed attorneys, who have the might and the limitless resources to ensure that thorough and complete investigations are conducted. Justice should not rely upon some fortunate scenario where a defense lawyer stumbles upon a piece of critical evidence that saves the day.
This terrible string of errors and mishaps should remind all those working in the criminal justice system to stay alert and diligent when working for justice. The inherent problems in representing the indigent, such as large case loads, and lack of adequate funding to access experts and investigators, make tragedies such as Rachell’s an unavoidable fact of life in Harris County Justice Center. It can only be hoped that the lessons learned from this tragedy will prevent others from occurring in the future, that both prosecutors and defense lawyers will take this case to heart and strive for justice, not just a pay check and a notch in the belt.
By: Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair