By JUAN A. LOZANO Associated Press Writer
Dec. 12, 2008, 7:35PM
HOUSTON — A Houston man who spent five years in prison for the sexual assault of an 8-year-old boy was freed Friday after DNA evidence which had gone untested until recently showed he didn’t commit the crime.
Ricardo Rachell did not stop to talk to reporters after he walked out of the Harris County Jail Friday evening. But Rachell’s sister said his family always believed he was innocent.
“The whole family is very glad he’s been exonerated,” said Phyllis Glenn as she whisked her brother into a waiting car. “It’s a day we’ve been waiting for.”
Earlier on Friday, a judge approved a personal recognizance bond for Rachell so he could be free while his attorney begins the legal process required to overturn a 2003 conviction on aggravated sexual assault. Rachell, 51, was transferred from a state prison to the Harris County Jail earlier this week.
He did not appear at a brief court hearing where he was given a bond. Rachell waited about eight hours after the bond was approved for his paperwork to be processed and his family to drive in from suburban Houston to pick him up.
He has served five years of a 40-year sentence.
“This is a horrible mischaracterization of justice I think on everybody’s part,” said Deborah Summers, Rachell’s attorney. “It’s this kind of case that really is frightening for our system.”
Summers said she plans to file paperwork to both overturn Rachell’s conviction and ask for a pardon, which the Harris County District Attorney’s Office has indicated it will support.
In the case, the victim was taken to a vacant house and sexually assaulted after being told by the man that he would pay him for help with removing some trash. The next day the boy’s family called police and the child identified Rachell.
Although DNA from both the attacker and Rachell was collected after the 2002 attack, no tests were ever performed.
Roe Wilson, chief of the district attorney’s legal services bureau, said the DNA evidence was never tested because the boy and a young companion both identified Rachell as the attacker. Wilson said it was a mistake not to test the evidence.
“Our office is being very candid. We should have requested the testing,” she said. “There was what we thought was strong eyewitness identification.”
Summers said she can’t understand how Rachell was misidentified because he has a very distinctive appearance; his face was disfigured in a shotgun accident years ago, which also makes it difficult for him to speak.
“He’s not the kind of person you would mistake,” she said. “This is a case where no one would have believed he would be misidentified because there is just no way. There was never any wavering in the identification. But how could you misidentify this guy?”
Summers, who was not Rachell’s trial attorney, said she doesn’t know if his facial disfigurement was ever brought up at trial.
“Before the arrest, the victim and the other boy described him as having something wrong with his face,” Wilson said. “When he was identified it seemed at the time to make sense.”
Rachell always maintained his innocence and was vehement there was DNA in his case that was never tested, Summers said.
“I said, ‘I don’t think there was because everybody kept telling me there wasn’t,'” she said.
Summers said there was mention of a rape kit in the offense report but she didn’t know what happened to it. The evidence — clothing and medical swabs — was finally found in February, more than a year after Rachell and his attorney filed a request with the state for DNA testing of it.
The testing was completed Oct. 28 and it identified the attacker as being another man who is a known sex offender, Summers said.
Rachell’s case is among about 540 that have been reviewed — or are currently under review — by the district attorney’s office since 2001. Many reviews were prompted because of problems with the Houston Police Department’s crime lab, which has been under scrutiny since 2002, when its DNA section was first shut down. Inaccuracies were later found in four other lab divisions that test firearms, body fluids and controlled substances.
Three inmates have been released from prison because of mistakes by the lab.
But Rachell’s case is different from those because it wasn’t a situation where testing was performed and it was wrong or improperly done.
His attorney said she believes this case is more egregious.
“I don’t know what happened here but it was unbelievably unfair,” Summers said.
