Josiah Sutton

The Crime

At about 11 p.m. on Oct. 25, 1998, a 41-year-old woman was abducted by two men at gunpoint from her apartment parking lot in Houston, Texas. They forced her into her Ford Expedition and sexually assaulted her, before eventually leaving her in a field in neighboring Fort Bend County.

The woman, identified as P.S., told police that her assailants were both young Black males, about 5 foot 7 inches tall, and 130 pounds. One of the men wore a wool cap, and the other wore a baseball cap turned to the side.

The Investigation

Five days later, P.S. was on her way home when she noticed three men on the street, two of whom she thought she recognized by their hats. Houston police picked up the men and took them to the police station parking lot, where P.S. was parked in her car. From a distance of about 10 feet, she told police she was positive that the two young men with the hats — 16-year-old Josiah Sutton and 17-year-old Gregory Adams — were her attackers. At the time, Josiah was about 6 inches taller and 60 pounds heavier than P.S.’ description of either of her assailants.

Josiah and Gregory were arrested and charged with aggravated sexual assault. As part of the investigation, crime scene evidence — a rape kit, swabs of the car, and P.S.’ clothing — was given to the Houston Police Department Crime Laboratory. In January 1999, the lab also received comparison samples from P.S., Josiah, and Gregory. By then, Josiah had just turned 17 and was certified to stand trial as an adult.

At the time, the crime lab conducted DNA analysis using an early form of Polymerase Chain Reaction (PCR) analysis, rather than the more recently developed and discriminating Short Tandem Repeat (STR) analysis that later became the standard procedure. The DNA analysis, performed by analyst Christy Kim, implicated Josiah but excluded Gregory, who was then released. 

Josiah told his attorney, Charles Herbert, that the DNA results were impossible. Mr. Herbert told him: “Well, I’m sorry, man, but that’s what they came up with.”

The crime lab had performed DNA analyses on several samples from the crime scene during two separate tests. The first test, on Feb. 23, 1999, compared vaginal swabs and sperm from the crime scene to DNA samples from the two teenagers. The second, performed two days later, used samples from P.S.’ jeans as well as semen found on a seat in the middle row of her car. These second test samples were recorded as “Sample #1” in the lab notebook.

On April 23, 1999, Mr. Herbert reached an agreement with prosecutors to submit any remaining samples to an independent lab for testing. The samples were sent to a company in Dallas, Texas, on May 13. Josiah’s family paid $600 to start the analysis. However, because Mr. Herbert did not authorize the company to proceed, the testing was never performed.

The Trial

In July 1999, Josiah Sutton went to trial in Harris County Criminal District Court. The prosecution’s case was based on P.S.’ identification and the DNA evidence. 

Ms. Kim told the jury that several genetic markers, known as alleles, were consistent between the rape kit and Josiah, and that 1 in 694,000 Black persons could be expected to have these alleles. 

Mr. Herbert’s cross-examination was limited to focusing on lab protocols and chain-of-custody issues. He did not retain an expert to review the lab’s work, to explain to him the science, or to testify about the results. Josiah Sutton was convicted on July 9, 1999, and sentenced to 25 years in prison.

Josiah appealed his conviction to the 14th District Court of Appeals in Harris County. He claimed ineffective assistance of counsel, because Mr. Herbert had failed to obtain independent testing of the DNA. Additionally, Mr. Herbert’s direct examination of Josiah included questions about a prior misdemeanor conviction for possession of a weapon, which opened the door to prosecution questions about his past criminal conduct.

A Texas appellate court rejected Mr. Sutton’s appeal on Jan. 18, 2001. It noted that he could not show how a failure to independently test the DNA was prejudicial. “The State’s DNA evidence which implicated appellant and led to the dismissal of charges against others accused, is not seriously challenged,” the court wrote. 

The Exoneration

In 2001, Josiah Sutton drafted a motion to request DNA testing under a newly passed post-conviction statute. Although the statute technically didn’t apply to him — it was intended for incarcerated individuals who had not had DNA testing performed at the time of trial — Bob Wicoff of the Harris County Public Defender’s Office was appointed to represent Mr. Sutton in March 2002.

Separately, two reporters with KHOU-TV, Anna Werner and David Raziq, had begun investigating the Houston crime lab after receiving a tip from local defense attorneys about problems with the lab’s work. They gathered records and sent them to two independent experts — William Thompson, with the University of California Irvine; and Elizabeth Johnson, the former director of the DNA lab at the Harris County Medical Examiner’s Office. The experts’ investigations uncovered substantial problems with the lab: the analysts were distorting statistics, changing results to fit the prosecution’s theory of a crime, and not following proper scientific procedure.

An investigative story on the lab was broadcast in November 2002. Mr. Sutton’s mother, Carol Batie, caught the story on television and called the station to convince the reporters to investigate her son’s case. Mr. Sutton’s file was sent to Mr. Thompson for analysis. Based on his findings, the TV station aired a report in January 2003 that raised significant doubts about Mr. Sutton’s case. Mr. Thompson’s full report, released Feb. 6, 2003, revealed significant problems with the DNA testing in Mr. Sutton’s case, including sloppy lab work, math errors, and a disregard for contrary results.

First, Mr. Thompson noted that the lab had obtained two different results when typing P.S.’ sample. He didn’t know why this had happened, but he wrote, “The fact that the laboratory obtained different profiles when typing samples from the same person raises profound concerns about the reliability of its procedures.”

In addition, Ms. Kim’s calculations vastly overstated the rarity of Mr. Sutton’s genetic profile. Mr. Thompson used a genetic database of Black males in Texas as a reference point, and found that there was about a 1 in 15 chance that any Black man in Texas could be included as a possible contributor to the sperm sample taken from P.S. Because two men were suspected and identified by P.S. in the show-up outside her car, the probability of one man or the other being found consistent with the sample doubled. 

“In other words,” Mr. Thompson wrote, “in any randomly selected pairs of Black men in Texas, there is better than 1 chance in 8 that at least one man would be ‘included’ as a possible contributor to the vaginal sperm fraction. In my opinion, this is the statistic that the jury needed in order to assign proper meaning to the DNA ‘match’ found in this case.” 

Finally, Mr. Thompson addressed the significance of “Sample #1,” taken from the backseat of the P.S.’ car. The lab report had erroneously stated that DNA types consistent with Mr. Sutton were found on this sample, when in fact, he had been excluded.

At one point, during Ms. Kim’s testimony at the initial trial, the prosecutor cut her off as she began discussing Sample #1. The prosecutor said sharply, “I don’t want to talk about the unknown sample, okay?” It was never brought up again.

Following the TV station’s report on Mr. Sutton’s case, the crime lab retested the DNA evidence. This time, the results excluded Mr. Sutton. On March 11, 2003, a judge ordered Mr. Sutton released, while Mr. Wicoff pursued a state law writ of habeas through the courts or a pardon by Governor Rick Perry. 

District Attorney Chuck Rosenthal said he would support Mr. Sutton’s pardon request if Mr. Sutton would submit to a final round of DNA testing. He agreed, and was again excluded. The prosecution still declined to support a pardon based on innocence, noting that the victim had not recanted her identification of Mr. Sutton. In addition, the prosecution opposed the petition for a writ of habeas corpus, which asserted that prosecutors had committed misconduct by failing to see the errors in Ms. Kim’s analysis.

On March 14, 2004, Gov. Perry granted Mr. Sutton a pardon based on innocence. On Oct. 1, 2005, Mr. Sutton was approved to receive $118,000 in compensation, plus a monthly annuity of $1,700.

The unidentified DNA profile was entered into the FBI’s Combined DNA Index System (CODIS). On May 9, 2006, the Houston Police Department was notified by CODIS that the sample had been matched to the profile of a man named Donald Young. After further testing, Mr. Young was arrested on June 11, 2006 and charged with aggravated sexual assault. He pleaded guilty in January 2007 and was sentenced to 10 years in prison. As part of his plea, Mr. Young told prosecutors that he committed the crime with a man named Damon Batiste, who had later died in prison. 

A comprehensive review of the Houston crime lab, released in 2007, said that “The Sutton case in many respects is a microcosm of the range of problems we observed during this investigation related to the use of forensic DNA evidence in the Harris County criminal justice system.”

While highlighting the crime lab’s failure to accurately analyze evidence, the report also said the prosecution and Mr. Sutton’s defense attorney were at fault, as he had failed to test the evidence or to retain an expert. The prosecutors relied on flawed forensics and did not have a sufficient understanding of DNA analysis to recognize the weakness of Ms. Kim’s methodology.