Growing introspection in death-penalty capital

Before each execution in Texas, lawyers plead with the courts to keep their clients alive. Some claim innocence, others a flawed case. But ever since 280 boxes of uncatalogued evidence were found disintegrating in a Houston Police Department warehouse in August, those arguments have taken on greater meaning in Harris County, long known as the death-penalty capital of the world.

The dusty boxes - mislabeled and improperly stored - contain biological, ballistic, and other evidence from 8,000 county cases, mostly murders, of the past quarter century. So far, officials have not heeded calls to halt executions until the evidence is sorted through. Meanwhile, a second Houston man has been released from prison for a rape he did not commit.

These are the latest developments in the saga of the disgraced Houston Police Department (HPD) crime lab, which was shut down two years ago following reports of shoddy scientific practices.

And while executions occur here routinely, the crime-lab scandal, and the cries of bungled evidence that precede each scheduled execution, have sown new hesitation and doubt among Texans who had come to see DNA evidence as foolproof.

Whether it will have any lasting impact on attitudes about the death penalty here is yet to be seen, but opponents of capital punishment are hopeful. While a new poll shows that 75 percent of Texans still support the death penalty, a growing majority, 70 percent, also believe innocent people have been put to death.

"This is a deeply entrenched issue and it takes a long time to generate movement," says David Dow, a University of Houston law professor and director of the Texas Innocence Project. "But we are getting people to hesitate who would not ordinarily hesitate."

Among those with misgivings are Houston Police Chief Harold Hurtt and John Whitmire, chairman of the state Senate Committee on Criminal Justice and a strong death-penalty supporter, who have called for a moratorium on executions in Harris County until the 280 boxes are sifted through.

In a letter calling for a moratorium, Senator Whitmire told Gov. Rick Perry that he believes Harris County's criminal-justice system is "broken." He sees halting executions not only as the moral thing to do, but also as a matter of credibility for the state.

"I think the state is being harmed when you have the police chief of your largest metropolitan city recommending a suspension of executions," says Whitmire. "I can only imagine what people in the rest of the country think about that."

Governor Perry rejected those calls, saying he is looking at the facts of each case individually. Since the boxes were discovered, six Harris County inmates have been put to death and three more are scheduled for execution by the end of the year.

Frances Newton is one of them. She was convicted and sentenced to death for killing her estranged husband and two children with her boyfriend's pistol in 1987. The motive, said prosecutors, was their insurance money.

Her lawyers are claiming that the ballistics testing may have been botched by HPD's crime lab and that the bullets at the crime scene did not come from the gun in question. Last week, they filed a petition seeking a 120-day reprieve to further investigate the case.

If none of that is resolved and she is executed on Dec. 1, Newton's will be just one more in a string of death-row cases that may rattle the residents of Harris County.

"Frankly, there is no way of knowing at the present time how much damage there will be because of the [Houston crime lab]," says Texas Court of Criminal Appeals Judge Barbara Hervey.

The question, she says, is whether Texas will be better off. Because of the growing number of inmates who have been found innocent, her goal is to make sure that each of the state's nine law schools have innocence projects, like those at the University of Houston and the University of Texas.

To that end, she persuaded the Court of Criminal Appeals to help sponsor a "how to" conference for law schools last week, and shared a popular theory: "If there are 150,000 people in Texas prisons and the system is right 99.9 percent of the time, then 150 people are falsely imprisoned."

Two Harris County inmates have been released from prison since the crime lab was shut down. Last year, Josiah Sutton was released from a 25-year sentence for rape that DNA retesting proved he did not commit. And last month, George Rodriguez, having served 17 years of a 60-year sentence for kidnapping and rape, was released because of flawed testimony from the lab.

Problems within the HPD crime lab "have changed the entire death-penalty debate in Texas," says Dow, "but those particular problems are going to solved. The question is whether Texans will conclude that the criminal-justice system has been irretrievably damaged or whether they think it is just an isolated incident and, when it's fixed, it will be back to business as usual."

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