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Josiah Sutton

Other Texas Exoneration Cases with Misconduct
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At about 11 p.m. on October 25, 1998, Priscilla Stewart said two men abducted her at gunpoint from the parking lot of her apartment in Houston, Texas. She said they forced her into her Ford Expedition and drove around most of the night while taking turns raping her, before eventually dumping her in a field in neighboring Fort Bend County.

Stewart told police her assailants were both young black males, each about 5 foot, 7 inches and approximately 130 pounds. One of the assailants, she said, wore a wool cap and the other had a baseball cap turned to the side.

On October 30, Stewart was returning to her apartment when she saw three men on the street. She would later say that she recognized two of them by their hats. Houston police picked up the men and took them to the parking lot of the police station. Stewart was in her Expedition about 10 feet away, and she told police she was positive that the two young men with the hats – Josiah Sutton and Gregory Adams – were her attackers. At the time, Sutton was 16, a football standout who was roughly half a foot taller and 60 pounds heavier than Stewart’s description of either of her assailants.

Sutton and Adams were arrested that day and charged with aggravated sexual assault. As part of the investigation, crime scene evidence – a rape kit, swabs taken from the Expedition, and Stewart’s clothing – was given to the Houston Police Department Crime Laboratory. In January 1999, the lab also received comparison samples from Stewart, Sutton and Adams. By then, Sutton had who had just turned 17, was certified to stand trial as an adult.

Christy Kim performed the DNA analysis at the crime lab. At this time, the lab was using an early form of Polymerase Chain Reaction (PCR) analysis, and not the more recently developed and discriminating Short Tandem Repeat (STR) analysis that later became the standard procedure. Kim’s DNA analysis implicated Sutton but excluded Adams, who was then released. This should have been a red flag for police and prosecutors. Stewart had identified both young men as her assailants. With Adams excluded, their theory of the crime no longer tracked the evidence.

When the DNA tests had come back, Sutton told his attorney, Charles Herbert, that the results were impossible. “There’s no way on God’s green earth,” he said. Herbert’s response was matter-of-fact: “Well, I’m sorry, man, but that’s what they came up with.”

The crime lab had performed DNA analysis on several samples from the crime scene during two separate tests. The first test, on February 23, 1999, used vaginal swabs and sperm found on Stewart and compared that with DNA samples provided by Adams and Sutton. The second, done two days later, used samples from Stewart’s jeans as well as semen found on a seat in the middle row of the Expedition. It was called “Sample #1” in the lab notebook.

A report issued by the lab, which would be the foundation of the state’s forensics case against Sutton, said that his DNA profile was found in the crime-scene samples and could be expected in only about 1 in 694,000 African-Americans. On April 23, 1999, Sutton’s attorney, Charles 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, with Sutton’s family paying $600 to start the analysis. But they were never tested, because Herbert didn’t authorize the company to proceed.

Sutton’s trial in the 183rd District Court in Harris County began on July 7, 1999. The state’s case was based on both Stewart’s identification and the DNA evidence, which Kim explained to the jury.

Kim said that several genetic markers, known as alleles, were consistent between the rape kit and Sutton, and that 1 in 694,000 African-Americans could be expected to have these alleles.

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

Sutton appealed his conviction to the 14th District Court of Appeals in Harris County. He claimed ineffective assistance of counsel, because Herbert had failed to obtain independent testing of the DNA and because his direct examination of Sutton had included questions about a prior misdemeanor conviction for possession of a weapon, which opened the door to prosecutors asking him other questions about his past criminal conduct.

Herbert and members of Sutton’s family testified at an evidentiary hearing, and they disagreed about why the testing wasn’t done. Herbert said the testing cost was approximately $1,200 and that Sutton’s family hadn’t provided the remainder of the money. The family said Herbert never told them they needed to spend the additional $600.

The appellate court rejected Sutton’s appeal on January 18, 2001. It noted that Sutton 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. Sutton then appealed to the Texas Court of Criminal Appeals, which rejected his case without comment.

While in prison, Sutton continued to try and prove his innocence. In 2001, he drafted a motion to request DNA testing. The statute technically didn’t apply to him; it was supposed to be used only by inmates who had not had DNA testing performed at the time of trial. But the motion required the court to assign Sutton an attorney, and Bob Wicoff began representing him in March 2002.

Separately, two reporters with KHOU-TV in Houston, Anna Werner and David Raziq, had begun investigating the Houston crime lab after getting a tip from area 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. These experts found substantial problems. The lab’s analysts were distorting statistics, fudging results to fit the prosecution’s theory of a crime, and not following proper scientific procedure.

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

First, Thompson noted that the lab had obtained two different results when typing Stewart’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.”

This mistake had not been mentioned during Kim’s testimony at trial, removing a potential pathway for Herbert to question the validity of the lab’s findings.

In addition, Kim’s calculations vastly overstated the rarity of Sutton’s genetic profile. Thompson used a genetic database of African-American males in Texas as a reference point and then based his calculations on what is called a “cumulative probability of inclusion.” He found that there was about a 1 in 15 chance that any African-American man in Texas could be included as a possible contributor to the sperm sample taken from Stewart. Because two men were suspected and identified by Stewart 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,” 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.” Instead, Kim had assigned a level of probability to the DNA sample that was wildly inaccurate.

Finally, Thompson’s report explained in detail the significance of “Sample #1,” taken from the backseat of the Expedition. The lab report had erroneously said that DNA types consistent with Sutton were found on this sample. They weren’t. He was excluded.

The vaginal sample contained four separate alleles for a specific genetic locus known as DQA. Two of those alleles were also found in Sample #1. So it seemed likely that the donor of Sample #1 was one of the attackers. Sutton could not be the source of Sample #1 because only one of his alleles was consistent with Sample #1; the other was inconsistent.

But if the unknown donor of Sample #1 was one of the attackers, then Sutton’s involvement was difficult to explain because he had only one of the two other alleles found in the vaginal sample (The inconsistent allele wasn’t contributed by Stewart, either.). It was only possible for Sutton to be a contributor to the sample if there had been a third assailant or Stewart had engaged in consensual sex with another man prior to the attack. But she testified that neither event had happened. “It seems much more plausible that the alleles found in the vaginal sperm fraction are from the two rapists, and that semen stain on the seat where the rapes occurred (Sample #1) is from one of the rapists,” Thompson wrote. “If these more plausible assumptions are true, then Josiah Sutton was not one of the rapists.”

At one point, during Kim’s trial testimony, she wandered into this area and began discussing Sample #1. The prosecutor responded, “I don’t want to talk about the unknown sample, okay?” It was not brought up again, either by the state or by Sutton’s attorney.

Following the TV station’s report on Sutton’s case, the Houston Police Department retested the DNA evidence. This time, the results excluded Sutton as the contributor to the DNA. On March 11, 2003, a judge ordered Sutton released from prison, pending a post-conviction writ of habeas corpus. He was released on personal bail, while Wicoff pursued a writ through the courts or a pardon by Governor Rick Perry.

District Attorney Chuck Rosenthal said he would support Sutton’s pardon request if Sutton would submit to a final round of DNA testing. He did, and the results again excluded him. But the DA’s office would not support a pardon based on innocence. Rosenthal noted that the victim had not recanted her identification of Sutton. In addition, his office argued against Sutton’s petition for a writ of habeas corpus, disputing that prosecutors had committed misconduct by failing to see the errors in Kim’s analysis.

On March 14, 2004, Perry granted Sutton a pardon of innocence, after receiving a recommendation from the Texas Board of Pardons and Parole, which had initially wanted him to receive a pardon that made no mention of innocence. Despite that pardon, Sutton was not immediately eligible to receive compensation for his wrongful conviction. Texas law then required that district attorneys sign off on compensation, and Rosenthal at first declined to endorse that proposal. Eventually, he gave his approval to compensation, although his endorsement didn’t acknowledge Sutton’s innocence. On October 1, 2005, Sutton was approved to receive $118,000 in compensation, plus a monthly annuity of $1,700.

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 attorneys were at fault. Sutton’s conviction, the report said, was a result of Sutton’s attorney failing to test the material and retain an expert to help him understand the evidence and of prosecutors relying on flawed forensics and not having a sufficient understanding of DNA evidence to recognize the weakness of Kim’s methodology.

After Sutton’s exoneration, the genetic material was resubmitted for testing. The profile was then entered into the Federal Bureau of Investigation’s Combined DNA Index System. On May 9, 2006, the Houston Police Department was notified by CODIS that the sample had matched the profile of a man named Donald Young. After further testing, Young was arrested on June 11, 2006 and charged with aggravated sexual assault. He pled guilty in January 2007 and was sentenced to 10 years in prison. As part of his plea, Young told prosecutors that he committed the crime with a man named Damon Batiste, who had later died in prison.

– Ken Otterbourg

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Posting Date:  Before June 2012
Last Updated: 1/31/2020
State:Texas
County:Harris
Most Serious Crime:Sexual Assault
Additional Convictions:
Reported Crime Date:1998
Convicted:1999
Exonerated:2004
Sentence:25 years
Race:Black
Sex:Male
Age at the date of reported crime:16
Contributing Factors:Mistaken Witness ID, False or Misleading Forensic Evidence, Perjury or False Accusation, Official Misconduct, Inadequate Legal Defense
Did DNA evidence contribute to the exoneration?:Yes