The judge's grounds for recommending a new trial for Napper is the HPD crime lab's destruction of all potentially useful DNA evidence in the case, by using the entire sample for just one test. Bob Wicoff, Napper's attorney, believes the judge recognized that the crime lab didn't play fair.
"The crime lab should have notified the prosecutor's office," Wicoff said. "They should have told the prosecutor's office, we have a little bit of forensic evidence, DNA, left to test. What do you want to do?"
Napper, who was on parole for his third rape, was arrested and ultimately convicted in the February 2001 abduction and sexual assault of a six-year-old boy. Napper maintains, had the DNA not been completely used up, he would have had a chance to have his own independent tests and the results would have been different.
This is not the first time HPD's crime lab has been criticized for mistakes.
Wicoff said, "This was eight years in the making. He is understandably optimistic about this. This is what he has been maintaining all along, from day one, from the day I first met him."
The Harris County District Attorney's office says the case is on-going and the Texas Court of Criminal Appeals will make its ruling.
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