A new era: Lykos admits mistakes in Rachell case COMMENTARY

Lykos’ feat: using the active voice

There are places and institutions where what District Attorney Pat Lykos did last week would seem normal.

But this is Harris County, Texas. And the institution is the District Attorney’s Office.

So what Lykos did verged on the revolutionary.

She not only admitted mistakes, she used the active voice.

In a report detailing the sorry series of errors that led to the false child rape conviction of Ricardo Rachell and his more than five years in prison, she didn’t conclude by burrowing into the conventional refuge of bureaucrats, the passive voice. As in: “Mistakes were made.”

Instead, she detailed the specifics and named names of prosecutors, defense attorneys and police officers who ignored evidence supporting Rachell’s innocence.

And she apologized to Rachell and the public.

Granted, it’s easier to apologize for mistakes made during your predecessor’s tenure. Another test will come when inevitably, given the size the caseload of the Harris County District Attorney’s office, her own staff makes a mistake.

Still, the report (which is linked to this column at www.chron.com), represents a strong step toward changing the culture of an office that not only sent innocent people to prison, but also went into flights of irrational fantasy to avoid admitting errors.

Take the case of George Rodriguez, who was convicted of the 1987 rape of a 14-year-old girl who mistakenly identified him as one of two assailants.

A key piece of supporting evidence was a pubic hair found in the victim’s panties. This was before DNA, but a Houston police crime lab specialist testified wrongly that the hair eliminated another suspect, Ysidro Yanez, but not Rodriguez.

Rodriguez spent 17 years in prison before DNA tests indicated that the hair belonged to Yanez, who by that time was in prison for another crime. The statute of limitations precluded charging Yanez with the rape.

But then-District Attorney Chuck Rosenthal didn’t apologize. Instead, his prosecutors asked that Rodriguez be kept in jail under a $30,000 bail, which his family could not afford, while the District Attorney’s Office considered trying him a second time. The judge denied the request and freed Rodriguez.

Rosenthal’s office cooked up a fanciful theory, as told to me at the time by a prosecutor: Yanez had previously had sex with someone in the room, and the victim’s panties picked up one of his hairs when they were thrown on the floor.

Fortunately, even Rosenthal didn’t want to send his prosecutors to a jury with that argument, especially when evidence showed that the girl was kidnapped in Yanez’s car and work records showed Rodriguez to be at his job at the time of the rape. Still, Rosenthal refused to admit that Rodriguez was innocent.

Once his conviction was thrown out, the law said Rodriguez was innocent until proven guilty beyond a reasonable doubt. But the District Attorney’s Office said he wasn’t innocent until it was proved he couldn’t possibly have done it.

I have never fully understood why it is so hard for prosecutors to admit a mistake. (Lykos has never been a prosecutor.)

Perhaps the cost of being wrong is too painful. Perhaps the psychic energy required to convince a jury beyond a reasonable doubt requires the abandonment of all doubt, oneself. Perhaps it’s the erroneous notion that admitting a mistake shakes public confidence in the system. But the reality is that we can’t have confidence in any large system that doesn’t have its own system for discovering its inevitable mistakes, learning from them and taking actions to avoid making them again.

That’s why the Lykos report boosts confidence in the Harris County District Attorney’s Office.

rick.casey@chron.com