Case gets 2nd look after lab missteps --- DNA
work, police tactics in question
The Houston Chronicle
May 3, 2003
With a signed confession and seemingly
unassailable DNA evidence, police considered the case against
Jorge Villanueva a slam dunk.
So his prosecution for the 1994 murder of an
elderly neighbor proceeded with machinelike efficiency. Hardly
anyone outside the victim's and suspect's families gave the
quickly rendered death sentence a second thought.
Nearly 9 years after paramedics found 77-year-old
Maria Jova Montiel strangled and bludgeoned to death in her
bloody bed, the Villanueva case could be a poster child for
practically everything that death penalty opponents say is wrong
with the most lethal criminal justice system in the nation --
from questionable police tactics to shoddy scientific work to
legal incompetence in the courtroom.
The DNA evidence that helped add Villanueva
to the roster of Harris County men on death row -- the largest
from a single jurisdiction in the country -- is under assault.
Subsequent testing shows that what was described in trial as
blood on the suspect's shoe may actually have been organic
fertilizer. Pubic hairs found at the scene could have come from
someone of a different ethnicity, and two other hairs dissimilar
from both Villanueva's and Montiel's were never tested.
Earlier this year, the Villanueva case was
identified as one of 1,300 getting a hard second look in the
wake of the burgeoning scandal at the Houston Police Department
crime lab -- a scandal that already has led to the release of
one man, 21-year-old Josiah Sutton, convicted of rape on bogus
Evidence retesting has been ordered in nearly
200 more cases.
Aside from earning a spot in that legal
lottery, the Villanueva case potentially illuminates more
fundamental rot in the system. Consider:
Villanueva has maintained from the beginning
that he confessed to Montiel's murder only after being smacked
in the mouth by a homicide detective. He points to a missing
tooth as evidence.
According to an appellate attorney,
Villanueva's inexperienced trial lawyer did not employ basic
defense strategies. For example, he failed to hire experts to
testify, including a psychiatrist who could have raised concerns
over extracting a confession from someone coming off heroin.
Perhaps most important, long before the
recent revelations about problems with Houston's DNA lab, the
appeals lawyer already was questioning the forensic analysis in
the Villanueva case -- questions that critics say should have
set off alarms throughout the Harris County criminal justice
"There were so many problems with his
(case)," said Susan Crump, one of Villanueva's appellate
attorneys. "Not that we know for sure that he's innocent. But
what happened was a mockery of justice."
The bad neighbor
An anonymous call brought the Houston Fire
Department to Montiel's Sixth Ward home just after noon on a
Sunday in August 1994. The caller said something about "an
accident," then abruptly hung up.
Inside Montiel's wood-frame duplex,
paramedics found Montiel's nude body on her bed, a deep
laceration on her forehead and a large pool of blood under her
head. She had been struck with a bottle, raped and strangled.
It was a sad, sick end for the popular
neighborhood fixture. As news of her slaying spread, neighbors
quickly erected a shrine on her front porch with candles and a
cross constructed from the aluminum cans she collected to make a
When homicide detectives canvassed the
neighborhood for clues and suspects, people soon pointed to
Jorge Villanueva, 36, who lived across the street from Montiel
with his wife and children.
A McAllen native with an 11th-grade education,
Villanueva had lived in Houston since the early 1980s, most
recently working for a door manufacturer. Before that, he had
drifted between the citrus groves of the Rio Grande Valley and
the cherry orchards of Michigan as a migrant worker.
In the initial police report, neighbors
described Villanueva as a "troublemaker" and "neighborhood drunk."
According to his own attorney, Villanueva
also was a heroin user. He had a record: DWI, burglary and an
injury to a child charge for which he received a probated
sentence. Fresh scratches on his face reinforced detectives'
suspicions, though Villanueva said he got them from clearing
brush and from a cat.
Police took him into custody that afternoon
but released him three days later while they waited for the HPD
crime lab to analyze evidence found at the crime scene. Two
months later, they had DNA results showing a statistical
likelihood that Villanueva was the killer.
But in 1998, 4 years before the crime lab
problems were made public, appellate attorney Les Ribnik had
latched onto the HPD analyses as a main element for appeal. He
hired Dr. Elizabeth Johnson to review the lab work.
The former head of the DNA lab at the Harris
County Medical Examiner's Office, Johnson had made headlines a
year earlier when her testing of evidence in the double-murder
case of Joe Durrett did not match the version offered by then-Assistant
District Attorney Chuck Rosenthal. Despite what Johnson says was
pressure from Rosenthal to be a "team player" -- which Rosenthal
has previously denied -- Johnson refused to back down, and
Durrett was acquitted.
Turns out, Johnson didn't like what she saw
in the Villanueva case, either.
A preliminary test, known as luminol reaction,
performed by the crime lab on one of Villanueva's shoes was said
to indicate the presence of blood. But, Johnson noted in a
report to Ribnik, luminol is extremely sensitive and "reacts
positively to numerous other substances including but not
limited to all substances containing metal ions such as rust,
fertilizers and fungicides, bleach, and certain plant extracts."
That might explain why HPD analysts were
unable to find DNA on the sample in additional tests.
The HPD lab's analysis of pubic hairs found
at the scene was insufficient, Johnson said, because examiner
Joseph Chu tested them at only one genetic region; up to seven
genetic regions could have been tested. With a single-region
match, 4.9 % of Caucasians, 5.3 % of blacks and 3.4 % of
Hispanics also could have matched.
The limited identification offered by the
test would have matched 136,000 people in Harris County, Johnson
Furthermore, Chu presented the statistics
about the hairs with the suggestion that they originated from a
Hispanic person, which Johnson calls "a serious bias in
reporting and testimony." (An independent audit of the HPD lab
in December cited its tendency to report statistics for evidence
only for the race of the suspect as a serious and common problem.)
For example, the tests performed on a hair
may be consistent with only 1 in 100,000 Hispanics, but it may
also be consistent with 1 in 20 blacks. To report the statistics
only for Hispanics "has absolutely nothing to do with the origin
of the evidence or how many people within the Houston
metropolitan area could have deposited the evidence," Johnson
"By reporting the evidence as a `match' to
the defendant and giving the defendant's frequency within his
own ethnic group and no other statistics, Mr. Chu is potentially
misleading jurors to believe that the killer had to be Hispanic
and that (Villanueva) was probably the killer."
Chu, through an HPD spokesman, declined to
comment, citing ongoing investigations.
Johnson also reported that the lab had not
analyzed two pubic hairs that matched neither Villanueva nor
Montiel. The hairs were never forwarded to the lab's DNA section,
she wrote, "ignoring solid physical evidence that someone other
than (Villanueva) may have been the murderer and left that
evidence at the scene."
The case is one of dozen or so that Johnson
has reviewed since 1997 in which she has found the original HPD
crime lab analysis lacking. She believes these and other red
flags should have triggered alarms within the district
"How could they have missed it?" she asked in
an interview. "When affidavit after affidavit is in court after
court? Plus, it's basically one big rumor mill over there at the
courthouse. I think they just
pretended not to know.
"It's just very unbelievable to me that they
didn't start putting it together."
Rosenthal's office directed questions to
Assistant District Attorney Marie Munier, who was out of town
and unavailable for comment. However, state District Judge Ted
Poe, a former Harris County prosecutor, believes that Johnson's
warnings should have set off alarms in that office.
"In my opinion, yes, it should have," Poe
said. "When the DA's office puts a witness on the witness stand,
they, under the law, are vouching for the credibility of the
witness. It's very simple. And therein lies the problem."
At the direction of Houston police and the
Harris County District Attorney's Office, a private lab has been
for the past several months retesting DNA evidence in cases
originally processed by the HPD crime lab. The department
suspended in-house testing in December after the independent
audit, which uncovered problems ranging from poor record-keeping
to sloppy science and structural problems that could
Most recently, the 22 criminal state district
judges have asked Rosenthal, now the elected district attorney,
to recuse himself and his office from any grand jury
investigations into problems at the crime lab.
And with crime lab problems coming to light
first in San Antonio and later Fort Worth, it is now a Texas
In the visitors' area of the Polunsky Unit in
Livingston, home to Texas' death row, Villanueva sits behind a
Plexiglas window, his jet-black hair slicked straight back. In
his right hand he holds a two-way telephone so he can talk with
an interviewer. With his other hand he points to a gap from a
missing left front tooth -- the one he says he lost after being
hit by a detective just before signing the confession that he
In October 1994, after the completion of the
analysis of DNA evidence found at Montiel's home, police
rearrested Villanueva and took him to the department's southeast
substation on Mykawa. There, he said, he was placed in an
interrogation room and questioned by homicide investigators E.T.
Yanchak and B.R. Baker.
"Yanchak told me that I was going to tell
them how it happened," Villanueva said. "And I told him that I
didn't know anything."
That wasn't exactly true, though. Villanueva
admits that after a Saturday of heavy drinking, he had gone
across the street to drop off his beer cans for Montiel's
recycling stash. Besides this, he occasionally mowed Montiel's
lawn and did other chores for her. Sometimes she paid him,
sometimes she didn't.
"She'd give me money later and say, `Go get
yourself a cold one,' " Villanueva said.
When he didn't see her outside the day before,
Villanueva says, he looked through a window.
"I saw her laying down in bed," he said. "Then
I began hollering at her so she could hear me. But she did not
answer. So I left the beer cans there and went back home ... and
told my wife that I thought something might be wrong with the
old lady. But she told me to stay away, so I stayed away."
The police, however, did not.
Even with the DNA hair evidence in hand,
detectives pushed for a confession. Villanueva refused. All the
while, he says, detectives Yanchak and Baker took turns writing
on a computer in the room. Finally, said
Villanueva, Yanchak presented him with typewritten pages.
"He told me, `Either you're going to sign
this paper, or I'm going to whip you,' " Villanueva said. "And I
told him to go for it."
With that, according to Villanueva, the
detective hit him in the mouth, loosening a front tooth that he
later had pulled in prison.
Yanchak, a longtime, respected HPD homicide
detective, denied the accusation through a department spokesman.
In an unusual move at his trial, Villanueva
took the stand and told jurors that his confession had been
coerced and that he had been beaten during interrogation.
But after 8 days of testimony, the jury took
only a few hours to reach a guilty verdict and 2 more to
sentence Villanueva to death.
Parade of lawyers
Ribnik, the appellate lawyer, says Villanueva
is to blame for at least some of the errors he is now raising on
appeal. For one thing, he dismissed a virtual dream team of
lawyers that most defendants couldn't
State District Judge Denise Collins initially
assigned Allen Isbell and Gilbert Villareal, two seasoned
capital murder litigators, to the case. But Villanueva fired
them. The judge then appointed two more attorneys well-versed in
capital defense, Anthony Osso and Gerry Guerinot. Again,
Villanueva didn't like what they said.
"Mr. Guerinot told me that they had enough
evidence to put me on death row," Villanueva said. "He said they
had a fingerprint, and that I was inside the house. And that
they had a shoe print matching my shoes. He wanted to cuss me
out. And I said, `You know what? I don't want you no more for my
Villanueva's family raised enough money to
hire Philip M. Campa, who had never handled a capital murder
case. Campa's performance during Villanueva's trial is now a
major subject of Ribnik's appeal.
In a brief included in Ribnik's appeal, Osso
says he met with Campa to offer assistance and to allow the new
lawyer to review his files. Additionally, he claims, he wanted
to make sure that Campa was up to speed on procedural issues.
"Mr. Campa advised me at this time that he
was not familiar with these issues in death penalty cases and
when I attempted to show him the pertinent statute he appeared
to show little interest," Osso wrote.
Osso also says he informed Campa that he
needed to arrange for expert witnesses on DNA and other forensic
issues, but Campa contended there was not enough time before
trial for him to arrange for such witnesses.
"By this remark," Osso wrote, "it was evident
that Mr. Campa mistakenly believed that the rules of civil
procedure regarding expert witnesses applied to criminal
prosecutions. At this point I explained to Mr. Campa that he was
not required to designate experts and that I had filed ex parte
motions under seal so that the state would not have access to
this information. Mr. Campa then responded by telling me he
would look into this matter."
Additionally, Osso advised Campa of evidence
suggesting Villanueva was coming off heroin when he signed the
confession and that a psychiatrist with expertise in drug
addiction could challenge the document.
"Again, Mr. Campa showed little interest in
the use of this type of expert," Osso concluded.
Campa maintains in his formal response that
he mounted an aggressive defense. He says he made "every effort
to bring myself up to speed on the case."
During the trial, he notes, he pointed out
that the Villanueva family had a good relationship with Montiel.
Additionally, Campa stated that he "consulted with a medical
doctor regarding autopsy photos of the deceased" and that he "did
do some independent research on DNA."
Campa says he did not employ a private
investigator, psychiatrist or DNA expert because his "client did
not have the funds available."
Ribnik points out that the court already had
approved funding for defense experts while Osso was assigned to
the case. Besides, he said, "The file I received from him has no
indication of notes (about DNA). No telephone notes. No written
notes. No correspondence. Nothing to suggest that he had any
contact whatsoever with any DNA expert, psychologist or any
other kind of expert."
In an interview with the Houston Chronicle,
Campa added that if the prior attorneys had obtained funding,
they should have followed through with the DNA testing
themselves. He again defended his work on the Villanueva case,
noting that no appellate court has found anything wrong with his
Waiting for the big test
When the crime lab controversy erupted,
Houston police contracted with local DNA lab Identigene to do
the retesting. Of the cases already designated for a retest,
results are known in only six. In five of those six cases, test
results confirm the HPD lab analysis. The other set Josiah
On death row, Jorge Villanueva longs for a