On March 12, 2009, Harris County District Attorney Pat Lykos and Houston Police Chief Harold Hurtt released a chronology, entitled the Rachell Report
, of the wrongful conviction and (eventual) exoneration of Ricardo Rachell. Here is how a miscarriage of justice unfolded:
On October 20, 2002, the complaining witness told two women at a Wyatt's Cafeteria on Griggs Road that a man had tried to kill him. Once he was taken home, the child told the police that a black male offered him $10 to pick up trash and then took him to the 3700 block of Southlawn.
The following morning, the child's mother kept him out of school. As she returned home after taking her oldest son to school she saw the man she thought assaulted her son. She, and a couple of friends, walked around the neighborhood until she saw him again. Her son told her that was the man and she followed him to his mother's house and then called the police.
When the police arrived they placed Mr. Rachell in the backseat of a patrol car and asked the complaining witness if Mr. Rachell was the person who kidnapped him. The boy said he was. The boy then told Officer Wilson that Mr. Rachell took him to a vacant house, pulled down his pants and grabbed him from behind around the waist. ADA James Alston, who was working intake, declined to accept charges at that time.
Officer Wilson found a vacant new house on Foster Street with signs of forced entry and muddy footprints leading to the second floor. He also found bicycle tracks in the yard next door.
The case was then assigned to Ofc. Clemons of HPD's Juvenile Sex Crimes division. Ofc. Clemons contacted the complaining witness' mother to arrange for an interview with her son at the Children's Assessment Center. The boy described his attacker as a light-skinned black man having a "messed up eye" and no teeth. He told Ofc. Clemons he had seen Mr. Rachell in the neighborhood before. Deborah Parks, R.N., then performed a sexual assault examination on the boy and delivered the examination kit to Ofc. Clemons who tagged it.
Ofc. Clemons then spoke to the boy's mother who could not explain why she believed Mr. Rachell was the man who attacked her son. The mother told Ofc. Clemons she saved the clothes her son was wearing that day because a "yellowish cream substance" in his underwear made her uneasy. Ofc. Clemons then placed the sexual assault examination kit and the clothes in the HPD property room.
On October 22, 2002, ADA Serna accepted a charge of aggravated sexual assault of a child against Mr. Rachell. The following day Ofc. Clemons presented the facts of the case to ADA Freyer in person at the DA's office.
The 185th Judicial District Court appointed Ron Hayes to represent Mr. Rachell on October 28, 2002. Mr. Hayes was the only attorney appointed to represent Mr. Rachell and he never requested that tests be performed on the DNA samples.
Mr. Rachell had three prior arrests for possession of marijuana, trespass of a habitation and burglary of a habitation. He had pled guilty to the burglary charge was sentenced to six years in the penitentiary (he was paroled in 1985).
Mr. Rachell was arrested on October 24, 2002 and submitted a sample of DNA to Ofc. Clemons. That sample was also checked into the HPD property room. During an interview recorded by Ofc. Clemons, Mr. Rachell repeatedly denied any involvement in the attack.
On December 12, 2002, the complaining witness and a friend identified Mr. Rachell from a photo array.
Then ADA (now President-elect of the Harris County Criminal Laywer's Association) Joanne Musick presented the case to a grand jury which returned an indictment on January 30, 2003. There were no requests made to test the DNA evidence.
Jimmy Ortiz (also now a criminal defense attorney) took over the case from the departed Ms. Musick on April 25, 2003 and tried the case to a jury in June 2003. Mr. Ortiz never requested tests on the DNA evidence in the state's possession. During the trial of the case, Mr. Hayes brought out testimony that DNA samples were taken but never tested. He brought up the lack of testing again during his closing argument.
At trial, the mother testified that she was not certain the man she saw in the neighborhood the morning after the attack was the man who assaulted her son. She made no mention of Mr. Rachell's deformed face. The complaining witness also failed to mention Mr. Rachell's face.
Mr. Rachell was convicted of aggravated sexual assault of a child on July 3, 2003 and was sentenced to 40 years in prison.
Hon. Shawna Reagin (now a judge in the 176th Judicial District Court) was appointed to handle Mr. Rachell's appeal. She filed an appellate brief on January 9, 2004. The Court of Appeals affirmed the conviction on September 30, 2004.
Mr. Rachell then filed a petition for a Writ of Habeas Corpus on September 11, 2005 that was denied on November 7, 2007.
Mr. Rachell sent Ofc. Rodriguez a letter on September 21, 2007 in which he stated that Andrew Wayne Hawthorne was the man who committed the assault for which he was convicted. Lt. Staney reviewed the case and, although he noted similarites in the attack for which Mr. Rachell was convicted and attacks committed by Mr. Hawthorne, he was unconvinced. He did, however, find the untested forensic evidence and requested that the DNA material be analyzed.
In the Spring of 2007, Mr. Rachell filed a Chapter 64 (Texas Code of Criminal Procedure) request in the 185th Judicial District Court asking that DNA testing be performed on the items in evidence. According to the report, Mr. Rachell's attorney failed to file the necessary motion to begin the process of testing the biological evidence. ADA Sally Ring obtained the required affidavits and requested the trial court to order DNA testing.
The Texas Department of Public Safety issued a report on October 28, 2008 that concluded that Mr. Rachell's DNA did not match the DNA samples found on the items collected in this case. A bench warrant was issued for Mr. Rachell and a personal bond was granted (releasing Mr. Rachell from custody) while the state prepared the writ that would lead to the conviction being overturned.
Mr. Hawthorne was identified as the man who assaulted the complaining witness in a DPS lab report dated December 12, 2008. Mr. Hawthorned confessed to the crime on January 13, 2009 and charges were filed against him on February 24, 2009.
According to the report, "[t]he wrongful conviction of Ricardo Rachell and the length of his incarceration [were] the result of a series of unfortunate events, blunders and omissions. There was a cascading, system-wide breakdown."
One of the system failures was the shuttering of the HPD Crime Lab in December 2002 (it would not reopen until May 11, 2005). During the period in which the lab was closed, biological material had to be submitted either to the DPS or to a private lab for testing. This, however, does not explain why neither the state nor the defendant's attorney requested testing on the material.
Mr. Hayes may not have requested testing as part of his defense strategy - raising reasonable doubt. After all, the burden of proof is on the state and it is, therefore, the state's responsibility to test biological evidence in a case. The fact that no tests were conducted could raise a reasonable doubt that Mr. Rachell committed the crime. Mr. Hayes was aware that a DNA analysis could be evidence that Mr. Rachell did commit the crime (sometimes it's better not to conduct tests on evidence).
At the time of the assault, the Harris County DA's Office did not have a policy regarding the testing of biological evidence.
The officers who responded to the initial call did not document the description of the alleged assailant; this, according to the report, may have led to the misidentification of Mr. Rachell.
The report also notes that Ofc. Clemons requested testing on the biological material but that no one ever followed up on his request. But "considering the deplorable conditions and incompetence in the lab, it may have ironically been beneficial to Rachell" that no tests were performed.
Finally, no one in the Juvenile Sex Crimes division was able to detect a pattern in child sexual assaults "virtually identical" to the one in this case that occurred less than one month after Mr. Rachell was arrested. While investigators eventually detected a pattern, no one bothered to review the file in Mr. Rachell's case.
So, in retrospect, we have a police investigation that was inadequate and a district attorney's office more interested in obtaining a conviction than in discovering the truth. How many other people are wrongly sitting behind bars today in cases in which there is no biological evidence to exonerate them?