60 Minutes devoted two segments of its March 9, 2009 program to DNA exonerations and mistaken identification. As of the program’s air date, there had been 233 DNA exonerations in this country—seventy-five percent of which involved mistaken identification by one or more witnesses involved in those cases. That is certainly disheartening news for many prosecutors and law enforcement officials who have historically touted the infallibility of the “pointed finger” from the witness stand. Turner Classic movies are filled with memorial scenes of “that’s him” shouted from the witness stand.

One of those who became a victim of a wrong “pointed finger” was then 45-year-old Ricardo Rachell. His tragic saga in the Texas criminal justice system began on October 20, 2002 when an eight-year-old boy, who was playing hide-and-seek with another boy, was approached by a stranger on a bicycle. The stranger told the boys he would pay them $10 if they would help him remove some trash. He told the boys where to meet him, but when they arrived, he grabbed the eight-year-old and rode away with him on the bike. He took the boy to a nearby empty house where he tried to sodomize him. Before leaving, the stranger put a knife to the boy’s throat and threatened him.

The next morning the boy’s mother saw Rachell riding a bike. He was well-known in the neighborhood because he had been horribly disfigured by a shotgun blast to the face several years earlier. He was often seen riding his bike around the neighborhood with a white towel wrapped around the lower part of his face to absorb the uncontrollable drool that ran from his mouth. The boy had already told his mother that his attacker had worn some kind of wrapping around his face. The mother took her child to the spot where she had seen Rachell riding his bike. She asked her son if Rachell was the attacker. Both the child and his friend later identified Rachell at the man who approached them on the bike and attacked the eight year old.

Houston city police officer Lisa Clemons investigated the sexual assault and arrested Rachel on October 21, 2002 for aggravated sexual assault of a child. Officer Clemons collected biological evidence from the victim and Rachell. This evidence included an oral-swab specimen, a bag containing clothing from Rachell and the victim, and a sexual assault kit. The property was placed in the Houston Police Department’s Property Room. Clemons did not initiate any procedure to have the biological evidence subjected to DNA analysis to determine if Rachell was in fact the attacker. She had eyewitness identifications from the victim and his child friend. Apparently that was all she needed to complete her investigation.

The biological evidence—it must be assumed—was probably noted in Clemons’ police reports which were submitted to the Harris County District Attorney’s office. An assistant district attorney reviewed those reports and had to be familiar with all the evidence, including the victim identification, before presenting the case to a grand jury and securing an indictment. This particular assistant district attorney subsequently left the District Attorney’s Office. The case was passed to Assistant District Attorney Jimmy Ortiz who prosecuted the Rachell. For whatever reason, Ortiz also did not seek DNA analysis of the biological evidence.

The court appointed local criminal attorney Ron Hayes to defend Rachell following his indictment. Rachell vehemently denied any involvement in the sexual assault on the child. Hayes would later say that he was not aware of the existence of any biological evidence. Of course that means the attorney did not go to the district attorney’s office and ask to review the police reports in the prosecutor’s files—a well-established procedure in Harris County at the time.

It became obvious that Hayes was not impressed by Rachell’s claims of innocence, despite the fact that those claims were given a boost when, on November 22, 2002 (just four weeks after Rachell’s arrest), another 8-year-old boy in the same neighborhood was lured to a secluded area with the promise of making money for selling newspapers and sexually assaulted by a stranger. Five weeks after this attack yet another boy was sexually assaulted in a similar manner.

Rachell, who was sitting in the county jail at the time, read about these sexual assaults in the local newspaper and sent the news clippings about them to Hayes in late December 2002. The attorney would later offer the following lame excuse in an affidavit provided in connection with one of Rachell’s appeals for not investigating these other sexual assaults:

“I received from Mr. Rachell the newspaper article about other sexual assaults. Since there were very few similarities and connection between the sexual assaults and the sexual assault Mr. Rachell was accused of committing, I did not believe that this information from Mr. Rachell merited much investigation.”

Clearly, months before Rachell was put on trial the wheels of guilt—greased by possible prosecutorial misconduct, or mismanagement at the least, and a highly questionable and suspect legal defense strategy—had already started to turn. It all came to pass on June 5, 2003, after the child victim, who had certainly been influenced by his mother’s suggestion, leveled the “pointed finger” of guilt at Rachell in a criminal district court room, that a jury convicted him and assessed his punishment at 40 years in prison. Two jurors who voted to convict Rachell’s expressed serious reservations about the mother’s role in prompting her son to identify Rachell.

Some three months after Rachell was convicted yet another rape occurred. This time it was a 10-year-old boy who, on October 25, 2003, was assaulted after he was promised money in exchange for doing chores.

Altogether, three boys who were sexually assaulted in a manner similar to Rachell’s alleged victim while Rachell was still in the Harris County jail.

Rachell was transferred to the Texas prison system to begin serving his 40-year sentence. Even though he had been given a new lawyer to handle his appeals, he was understandably not a happy camper. He continuously wrote to his late mother protesting his innocence. His mother in turn sent him newspaper articles about continued sexual assaults on children in the same neighborhood by the stranger on the bike. Rachell sent these news clippings to his new attorney asking for a further investigation. The attorney included them in Rachell’s appeals.

The local neighborhood was in a state of hysteria. Congressional Representative Shelia Jackson Lee began conducting community meetings. The police assured the community through the local media that they were looking for a suspect believed responsible for the sexual assaults. The suspect was a registered sex offender named Andrew Wayne Hawthorne. He lived less than two miles from where Rachell had lived.

“We finally recognized a pattern,” Houston sex crimes investigator Emma Rodriquez told the local news media on October 25, 2003. “Through our research we discovered a bike was being used in all of the cases, and then things started building, started looking familiar.”

Apparently the “research” collected by the sex crimes unit and the fact that “things … started looking familiar” did not include anything about Ricardo Rachell. And apparently the prosecuting attorney, Rachell’s defense attorney, nor even the local crime reporters had either the time or interest to connect the dots pointing to Rachell’s obvious innocence. More disturbing is the fact that not even the two sex crimes unit who worked both the Rachell and Hawthorne cases saw the trail signs of Rachell’s innocence staring straight at them. And not even the state appeals court found any merit any Rachell’s claims of innocence because, on September 30, 2004, the court affirmed his conviction and sentence. All this staggering professional dereliction resulted despite the fact that Hawthorne pleaded guilty to sexually assaulting three boys from the same neighborhood where Rachell’s victim lived and was given a 60-year prison term.

In the meantime, Rachell had become increasingly more infuriated. His mother died. With the help of other inmates, he filed a misconduct complaint against his trial judge and asked for new attorneys. Finally, in early 2007, criminal district court Judge Sandra Brown cleared the way for DNA testing of the biological evidence in Rachell’s case. The District Attorney’s Office in March 2008 sent the evidence off to be tested, and in November 2008 the District Attorney’s Office learned that the DNA evidence excluded Rachell at the attacker of the eight-year-old boy and identified Hawthorne as the real attacker.

On December 12, 2008, Judge Brown declared Rachell innocent and ordered him released from custody. The official recriminations began almost immediately after wrongfully convicted man’s release. Houston Mayor Bill White ordered an “investigation” into how the tragedy could have happened. And while all the official parties involved jockeyed for the most favorable public posture, Rachell was asked if he was angry with the boy and the boy’s mother for the six wrongful years he spent in prison: “I have no anger for him at all. None at all,” he said.

Ricardo Rachell was one of the 39 persons exonerated in the State of Texas through December 2008. According to a November 2008 report titled “Eyewitness Mistaken Identification Procedures in Texas” produced by the Austin-based The Justice Project, 82 percent of those exonerations involved mistaken eyewitness identifications.

There are 1034 law enforcement agencies in Texas. 750 of them responded to The Justice Project requests for information about any written policies governing photographic and live lineup procedures utilized by these law enforcement agencies. Twelve percent, or 88 agencies, responded that they have written polices in place guiding eyewitness identification procedures. These are disturbing revelations because, as The Justice Project noted, “both anecdotal evidence and scientific research indicate that eyewitness error is largely a result of faulty eyewitness identification practices carried out during investigations of crimes.”

The Justice Project went on to point out that, like physical evidence, eyewitness evidence is “subject to contamination” if it is not collected properly. The eight-year-old victim’s identification of Rachell was contaminated the moment the boy’s mother in effect encouraged him to identify Rachell as the attacker. Officer Clemons evidence collection procedures obviously did not do enough to correct that initial contamination.

Officer Clemons collection of eyewitness evidence fits the mold of most law enforcement agencies in Texas. The Justice Project found that only seven the state’s 88 agencies that have written policies stressing fairness in their eyewitness evidence collection procedures use what is called “blind administration procedures.” These procedures were described as follows by The Justice Project:

“One problem that leads to mistaken eyewitness identification is that witnesses may be inadvertently cued toward a photo or individual in a lineup by the officer who conducts the procedure. Because the administrator can unknowingly impact the outcome of the lineup, it is imperative for the person who conducts the lineup procedure to have no knowledge of which photo or individual in the lineup is the suspect. By keeping the administrator ‘blind’ to the identity of the suspect, we preserve the objectivity of the identification and ensure that eyewitness identification choices and confidence are not inadvertently influenced by the administrator.”

Clearly, Texas law enforcement agencies have not taken advantage of substantial scientific research available on mistaken eyewitness identification, nor have they elected to adopt eyewitness identification procedures recommended by the U.S. Department of Justice, the International Association of Chiefs of Police, the American Bar Association, and numerous other concerned organizations.

“Old habits” do indeed die hard. Since Texas law enforcement agencies apparently will not voluntarily alter their old eyewitness evidence collection procedures, and since state prosecutors apparently have no problem presenting this risky evidence in criminal trials, the state legislature should consider enacting some sort of Eyewitness Identification Reform Act that would mandate standardized eyewitness identification procedures for all law enforcement agencies in Texas. This would be a major first step toward reducing the number of innocent people like Ricardo Rachell from being wrongfully convicted in Texas.