Houston Chronicle

Josiah Sutton still waits for legal exoneration
By Mary Ann Fergus

March 7, 2004

Nearly a year after a new DNA test freed Josiah Sutton from prison, he still waits for legal exoneration from a rape conviction.

Jailed at 16, Sutton served 4 1/2 years of a 25-year sentence for a 1998 rape in which two men abducted a woman from her southwest Houston apartment-complex parking lot, raped her in her SUV -- with two witnesses outside -- and left her in a Fort Bend County field.

Sutton, now 22, said he was innocent from the beginning. He won freedom March 12, 2003, when a DNA test excluded him as a suspect. A second test, ordered by the Harris County district attorney's office in June, also excluded him.

David Dow, director of the Texas Innocence Network, is working to clear Sutton's name in two ways: a court order to vacate the conviction and a governor's pardon based on innocence.

Those efforts have been stymied by a slow-moving legal system, by the scope of Dow's legal arguments and by Harris County District Attorney Chuck Rosenthal, who refuses to call Sutton "innocent" in documents needed to clear him.

"It is much easier to convict someone who didn't do it than to exonerate someone who didn't do it after they've been convicted," Dow said. "It's ridiculous."

Sutton was released on bond pending the outcome of his writ of habeas corpus. That writ asked state District Judge Joan Huffman to recommend to the Criminal Court of Appeals that the conviction be overturned on the basis of innocence, prosecutorial misconduct and ineffective counsel. The "ineffective counsel" claim later was dropped.

Last month, Dow and the district attorney's office filed competing arguments on the writ to vacate the conviction. Huffman will hear arguments on those claims and make her recommendation in a hearing in mid-April.

On the innocence claim, the district attorney's office acknowledged that wrong trial testimony on the DNA issue "likely" influenced the guilty verdict.

On the misconduct issue, Dow contends the prosecutor's office and Houston Police Department DNA analyst Christy Kim should have known that a DNA sample excluded Sutton as a contributor to the crime scene evidence. Her notes stated that Sutton's DNA was not a match for the rapist's. However, the information transcribed into the lab's official report said otherwise. The district attorney's office had both the notes and the report.

Rosenthal's office maintains it was unaware of any exculpatory evidence.

Dow's claim of prosecutorial misconduct might in itself have slowed down the action to clear Sutton because of the resulting investigation into that claim. But Dow said he doesn't want to remove it because he believes the claim is valid. He also said that if the writ is rejected, that argument allows him to fight it in federal court.

"This is a case where the DA's office should have said, `We made a mistake and we want to work with Josiah Sutton as quickly as we can and fix things,' " Dow said.

"If he wanted to really change things, he could run for office here, too," Rosenthal responded. "I haven't impeded anything."

The clemency petition filed June 3, 2003, still sits undistributed to board members at the Texas Board of Pardons and Paroles.

There are two types of pardon: a "full pardon" and a "pardon for innocence."

A full pardon restores the rights taken away by the conviction, but the conviction remains on the person's criminal record.

A "pardon for innocence" clears the criminal record, restores rights and allows for state reparations of up to $25,000 per year in prison.

The burden of proof for a pardon based on innocence is high. The district attorney's office, sheriff or police chief, and trial judge must each ask for a pardon based on innocence backed up with evidence.

Gov. Rick Perry has granted 67 full pardons and five pardons for innocence since he became governor in 2001.

In Sutton's case, the judge can't write the board while presiding over the writ to vacate the conviction. Rosenthal didn't use "based on innocence" in his June letter, asking instead for a full pardon. Harris County Sheriff Tommy Thomas wrote a letter to the parole board, repeating Rosenthal's language, and noted his department did not investigate the crime.

Rosenthal said he didn't use the words "based on innocence" in his letter to the parole board because "it's a slam-dunk lawsuit against the state of Texas," referring to the claim Sutton could make for reparations.

He also won't use those words because he's not convinced Sutton is innocent. Some rapists don't leave biological evidence. For example, the rapist could have worn a condom, not ejaculated or not produced sperm, he said. And as long as the victim is unwavering in her belief that Sutton was among the rapists, Rosenthal stands by her.

In place of Huffman's letter, Dow submitted transcripts from a court hearing in which Huffman said she would support the pardon if the second DNA test cleared him, as it did.

Board Chairwoman Rissie L. Owens and general counsel Laura McElroy said they can't process the petition until Rosenthal's language changes and the judge sends her letter.

Dow suggested the board use its executive power -- which can ignore all other rules -- and simply move forward on Sutton's request.

"I think they have no guts," Dow said. "I think it's easier for them not do anything than to do the right thing. There's nobody that puts any heat on them, no political consequences to pay when you have a young black kid who is being left in limbo by them. I promise you that this would not be happening this way if it had been a young white kid and a black victim. They would have fixed it by now."

"Our decisions are not based on race," Owens said in response. "When we have the appropriate documentation, then we'll proceed."

With a felony conviction, Sutton cannot vote and has had difficulty getting a job. He has not, however, been required to register as a sex offender.

Meanwhile, city police have not reopened the investigation to find the victim's rapists.

HPD homicide Capt. Richard Holland said the DNA profiles of the two rapists were checked once last year against a national DNA database and no match was found.

But the profiles were not entered permanently into the database, which gives police a better chance of solving the crime as new profiles are entered.

Holland, like Rosenthal, said they would investigate any new information on the case.

Sutton remains confident his name will ultimately be cleared.

"I think they prolong it like everybody else," Sutton said. "You don't want to rush to your whooping, you know?"



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