Ballistics lab results questioned in 3 cases
A trio of death sentences could rest on faulty results
from police analysts
By STEVE MCVICKER
Copyright 2005 Houston Chronicle
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In a possible
sign of more problems at the Houston Police Department's embattled crime
laboratory, rulings in cases still working their way through the courts suggest
that the death sentences of at least three Texas inmates could have been based
on faulty work by HPD's ballistics division.
The latest
decision came in September when U.S. District Judge Lee Rosenthal granted
Martin Draughon a new trial, citing "serious questions" about the
accuracy of HPD analysts' work.
Recent judicial rulings also have prompted concerns about
the cases of Willie T. Washington and Nanon Williams.
The Police Department is expected to hire a special
investigator soon to review the work of all divisions of its crime lab.
However, the Houston lawyer handling Williams' appeal says ballistics cases
also should receive special scrutiny — like the DNA lab, where the
discovery of poor working conditions and shoddy science forced retesting of
evidence in almost 400 cases.
DETAILS
"I'm astonished that the ballistics lab hasn't
already drawn more attention," said attorney Morris Moon, of the Texas
Defender Service. "It should be like the DNA lab. They should go back and
re-evaluate all the cases and make sure there haven't been other
mistakes."
But C.E. Anderson, the former HPD ballistics-lab
administrator whose work is being scrutinized in three cases, says the
controversy is being generated by people who are trying to get out of jail or
get their clients out of jail.
"And I don't blame them for that," Anderson
said. "But I did the best I could, and I did what I thought was
right."
Nobody would confuse Draughon for an anti-death-penalty
poster boy.
In 1982, he was convicted of assault after accosting at
knifepoint two men he accused of running him off the road. An admitted cocaine
user, according to court records, he also pleaded guilty to sexually assaulting
a woman during a robbery.
On Nov. 22, 1986, Draughon, then 23, tried to rob a
Houston fast-food restaurant but was thwarted by neighborhood residents who
chased him. During the chase, he fired a shot, and one of his pursuers, Armando
Guerrero, was killed by a bullet in the heart.
In his trial, evidence developed by the HPD lab supported
the prosecutors' theory that Draughon deliberately had shot Guerrero. It was
the only ballistics evidence the jury heard.
Draughon insisted that he was just trying to scare his
pursuers, but the bullet ricocheted and killed Guerrero. Not until 18 years
after his trial, when Judge Rosenthal forced prosecutors to allow appellate
attorneys to have their own experts analyze the bullet fragments, was evidence
supporting Draughon's claim uncovered.
Adamant about evidence
That evidence came from ballistics specialist Lucien Haag,
whose findings have supported prosecutors in other cases. Haag testified
recently as an expert witness for the Harris County District Attorney's Office
in its prosecution of former HPD officer Arthur J. Carbonneau, convicted in
January of criminally negligent homicide in the shooting of an unarmed
teenager.
Rosenthal's order granting Draughon a new trial is before
the 5th U.S. Circuit Court of Appeals. The Texas Attorney General's Office
contends that whether the fatal bullet was a ricochet is immaterial to the
death-penalty question.
But state District Judge Jan Krocker, the former assistant
district attorney who prosecuted Draughon, disagrees.
"If (the victim) was truly killed by a ricocheted
bullet, the jury should have heard that evidence 17 years ago and Mr. Draughon
should get a new trial," Krocker wrote in an e-mail to the Houston
Chronicle. "It would be morally wrong for the execution to go forward if
the jury didn't get to hear such important evidence."
However, Krocker does not think Draughon should get a new
trial. She is adamant that the ballistics evidence she presented is correct,
that the shooting was deliberate and that he should be executed.
Some legal experts say Krocker violated the state judicial
code of ethics by becoming actively involved in fighting Draughon's appeal.
Rosenthal rejected Krocker's request to present testimony
supporting her ballistics theory. However, she did allow Krocker to submit
written statements from witnesses as part of the court record.
Those witnesses included C.E. Anderson, who retired from the
HPD lab's firearms division in 1998. In his statement, Anderson, who performed
the ballistics analysis of the bullet fragments in the Draughon shooting, stood
by his findings.
"The bullet that killed the deceased did not ricochet
before it entered the body," he wrote.
But in her order, Rosenthal speculated that the
prosecution's assertion that the shooting was intentional may well have been
the difference between Draughon's receiving the death penalty or life in
prison.
"The (new) ballistics evidence presented (in federal
court) establishes that evidence existed that would have supported Draughon's
defense theory and would have allowed the jury to find a lack of intent,"
Rosenthal wrote. "Had the jury done so, Draughon would have been convicted
of felony murder, not capital murder."
Jeff Keyes, Draughon's appellate attorney, says the case
reveals shortcomings in Harris County criminal justice.
"When we came into the case in 1993, we tried on
numerous occasions to get the bullet and the gun to have them examined, and we
were denied that by the state courts," said Keyes, who is based in
Minnesota. "You take a look at the evidence many years later, and it just
gives you a lump in the throat to think that this is the way the system
operates."
The work of Anderson and the HPD ballistics lab also has
come under judicial scrutiny in a 1985 capital murder.
Anderson analyzed the ballistics evidence in the case of
Willie Terion Washington, who was sentenced to die for the shooting of
Kiflemariam Tareh, a 27-year-old Ethiopian political refugee.
Anderson testified in the trial that a bullet taken from the
victim's head was either a .38 or .357 caliber. Police had recovered a
.25-caliber pistol at the crime scene from another man, Yemane Kidane, who had
been shot in the face but lived and claimed that Washington had attacked him
and Tareh.
Police found Washington in possession of a .38-caliber
revolver.
Different results
However, 14 years later, when U.S. District Judge David
Hittner ordered prosecutors to allow Washington's defense to have ballistics
evidence examined by their own experts, the results were very different. The
experts included the Nueces County medical examiner and a firearms expert from
the Tarrant County Medical Examiner's Office.
"These
facts suggest that the fatal bullet may have been .25-caliber, the same caliber
as the handgun recovered from Kidane at the crime scene, and not .38 or .357,
as suggested by Anderson," Hittner wrote.
But Hittner also concluded that Washington had not exhausted
the ballistics issue and several other issues at the state court level. He sent
the case back to the Texas Court of Criminal Appeals.
That court disagreed with Hittner's assessment of the
ballistics evidence and rejected that aspect of the appeal. However, since
Hittner had dismissed Washington's appeal "without prejudice,"
Washington's attorneys can take the ballistics issue back to federal court.
Questions of accuracy
The work of HPD's Anderson and Robert Baldwin, the current
ballistics-lab chief, also is a critical issue in the capital murder conviction
of Nanon Williams.
Williams, now
30, was convicted of a 1992 shooting during a drug deal in Hermann Park after
Baldwin testified that the victim was shot in the head with a .25-caliber
bullet — the caliber of Williams' gun. Six years later, the same examiner
said that, upon review, it was clear that the bullet actually was a .22-caliber
from a co-defendant's gun, which had not previously been tested.
State District Judge Joan Campbell recommended a new trial,
but the Court of Criminal Appeals rejected that idea. Williams' appeal is
pending in federal court.
Questions about the accuracy of Baldwin's work also have
been raised in the conviction of death row inmate Johnnie Bernal, although not
by any court.
In Bernal's trial, Baldwin, then an analyst in the HPD lab,
testified that the fatal bullet in a 1994 shooting outside a north Houston
icehouse came from a gun Bernal had when police arrested him. Baldwin said he
had to fire the gun 25 times and use a solvent on its barrel before he got the
match.
In March 2003, several firearms experts told the Chronicle
that most ballistics tests require no more than three shots.
Bernal's appeal is pending in U.S. District Judge Vanessa
Gilmore's court. Baldwin declined to comment last week, citing the pending
appeals in that case and the Williams case.
steve.mcvicker@chron.com