Jorge Villanueva

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.

Until now.

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 DNA findings.

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 system.

"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 living.

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.

Challenging evidence

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 said.

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 reported.

"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 attorney's office.

"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
contaminate evidence.

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 problem.

Untrue confession?

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 didn't write.

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
afford.

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 lawyer.'"

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 performance.

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 Sutton free.

On death row, Jorge Villanueva longs for a similar result.