- The Washington Times - Tuesday, March 11, 2003

HOUSTON, March 11 (UPI) — A Houston judge will be asked Wednesday to release a man who has apparently served nearly five years in prison for a rape he did not commit.

A new round of DNA tests determined that Josiah Sutton was not involved in the 1998 rape of a Houston woman as the Houston Police crime lab had reported at his trial. The lab is currently under investigation and evidence in past cases is being re-examined.

Sutton's attorney, Bob Wicoff, said Tuesday he would file a post conviction writ of habeas corpus early Wednesday as the first step in getting his 21-year-old client out of jail. He plans to ask the judge to release Sutton on bail until his release is formally approved by the court.

Wicoff said he also intends to seek a pardon from Gov. Rick Perry and he hopes that the Harris County district attorney will join in the request.

Hundreds of cases have been under review since a state audit uncovered shoddy work and possible evidence contamination. DNA testing has been closed down at the lab and investigations are under way by local and state authorities.

A private, outside lab is retesting about 22 cases involving DNA evidence, including seven that send inmates to Texas' death row. The lab's handling of other, non-DNA evidence is also being examined.

Wicoff said it's likely there are other cases where defendants have been wrongly convicted because of shoddy work at the crime lab.

"Surely the first one retested coming back with this result is not just a coincidence," he told United Press International.

In a jailhouse interview Monday, Sutton told the Houston Chronicle that he was angry.

"I am still shaken by the whole thing," he said. "I feel I will walk out of here soon, but I am angry that 4 years of my life went down the drain. I am scarred for life, but I believe life will get better for me."

Sutton was only 16 when he was arrested for the October 1998 rape of a woman who was abducted outside her apartment and then dumped in a remote field. He and a friend were arrested five days later after the victim said she recognized them. The friend was not linked by DNA and never charged.

Sutton was sentenced to 25 years in prison after a 1999 trial in which a Houston Police crime lab technician testified that DNA found on the victim was an exact match for his. The new tests found DNA profiles of two men, neither of them a match for Sutton or his friend.

District Attorney Chuck Rosenthal has withheld comment until his office receives a copy of the report from Identigene, the lab that conducted the new DNA tests.

None of the seven death row cases have execution dates scheduled and last week the Houston police chief recommended that no dates be set until the retesting is completed. In Texas, execution dates are set by trial judges in each case.

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