The Austin Chronicle

http://www.austinchronicle.com/news/2013-02-15/wheres-your-evidence/

Where's Your Evidence?

Advances in forensic science have made physical evidence increasingly crucial in criminal justice – but the practice of preserving and maintaining that evidence is often underfunded, poorly managed, or just plain sloppy

By Jordan Smith, February 15, 2013, News

For more than a decade, lawyers for death row inmate Hank Skinner fought prosecutors – in Gray County and the attorney general's office – for the right to DNA-test certain items of evidence. Skinner was convicted and sentenced to die for the 1993 murder of his girlfriend Twila Busby and her two grown sons in the home they shared in the Panhandle town of Pampa. The crime scene was bloody – Busby was bludgeoned, her sons repeatedly stabbed – and while some DNA tests have been performed, there was plenty of evidence that hadn't been tested, including a sweat- and blood-stained windbreaker. The jacket is crucial, attorney Rob Owen has argued; found next to Busby's body, the tan snap-front jacket resembled one regularly worn by Busby's now-deceased uncle Robert Donnell, who the defense claims was obsessed with Busby and may have been her real killer. In short, testing the jacket might help prove Skin­ner's innocence – or confirm his guilt.

On June 1, 2012, the state finally dropped its opposition to the testing. Just two weeks later, Owen was again frustrated when the AG's Office informed him that the windbreaker was missing. "According to the state, every other piece of evidence in this case has been preserved," he said at the time. "It is difficult to understand how the state has managed to maintain custody of items as small as fingernail clippings, while apparently losing something as large as a man's windbreaker."

No one seems to know when or how the jacket went missing. The Pampa Police Depart­ment, which investigated the murders, originally held all of the evidence related to the case. When the time came for Skinner to be tried, the evidence was handed over to Gray County. Some time after Skinner was tried, the jacket simply disappeared – and no one knows where it went, said Gary Noblett, a 41-year veteran of the Pampa PD and custodian of its evidence and property storage. Over the years, he said, a number of law enforcement types have called looking for it – including officials with the AG's Office. "As far as I know of, no one's ever been able to find that thing," he said. Skinner remains on death row as DNA testing on other items of evidence continues.

Skinner's case is not unusual. Unfor­tun­ately, missing evidence is "way more common than you'd think," says evidence expert John Vasquez. Vasquez worked in property and evidence management for 25 years, first for the military and then for the Fort Worth and Wichita Falls PDs, before starting his own evidence-control consulting business. More often than not, the evidence hasn't actually been removed from a law enforcement storage facility – though scandals involving stolen evidence are unnervingly common, as officials with the Houston PD can readily affirm. Instead, says Vasquez, missing evidence is generally misplaced evidence – logged into one area of a storage facility and then moved without anyone noting the new location, or overlooked when a department's evidence-tracking system is upgraded.

That is, perhaps, the good news – though having something and not knowing where it is, or not being able to find it, is hardly less damaging than discovering that an item has been stolen or destroyed outright.

Indeed, an investigation by the Chronicle into the state of criminal evidence storage and retention in Texas reflects that while state laws firmly mandate the preservation and maintenance of evidence that may contain biological material, there is little consistency in how these laws are actually carried out, including wide disparities in how evidence is packaged and maintained. Legislation enacted in 2011 extended by decades the length of time that items of evidence that may contain DNA must be stored, and directed a group of stakeholders to come up with guidelines and best practices for the handling and storage of that evidence. However, many law enforcement officials see the legislation as merely a good first step, and moreover, an unfunded mandate.

Property and evidence technicians and managers are often poorly paid and receive very little training, if any, on how to do their jobs, says Vasquez. That's a combination that can quickly lead to scandal for a police department working within a criminal justice system that increasingly relies on science to make evidence meaningful.

As forensic science evolves and DNA testing becomes more precise, the amount of material being collected has also increased, thrusting the maintenance of evidence – once considered the "red-headed stepchild of law enforcement," says Vasquez – into the legal spotlight, and expanding the need for skilled inventory management. "We are somewhat overrun by stuff," says Belton Police Chief Gene Ellis, a representative of the Texas Police Chiefs Association who was among a group of stakeholders involved last year in the creation of best practices for evidence preservation in Texas. DNA testing "has enhanced so that we're able to process things and come up with DNA evidence where we couldn't before."

Without sufficient understanding of the critical role that the proper preservation of evidence now plays – not only in convicting the guilty, but also in freeing the innocent – the system is in serious trouble, officials warn. "Evidence has been one of the biggest issues we're dealing with in law enforcement," says Tony Widner, chief of the Graham PD, a small department south of Wichita Falls. "You're not just talking about the credibility of the department; you're talking about a victim seeing justice."

Everything ... and the Kitchen Sink

In legislation alone, Texas is actually "one of the leading states" when it comes to property and evidence-related procedures, says Vasquez, former president of the Texas Association of Property and Evidence Inven­tory Technicians, which advocates for training for evidence technicians. "Texas is pretty much at the forefront." Gayla Robi­son, who serves as TAPEIT secretary and oversees property and evidence for the Burleson PD, agrees; it's far worse in Arkan­sas or New Mexico, she says, where there are few evidence laws. Yet law enforcement agencies are tasked with keeping safe enormous quantities of material evidence.

Across Texas, municipal police departments and sheriff's offices are the primary repositories for all kinds of items – from a bloody shirt collected by detectives in a murder investigation to marijuana grow-lights, plants, and cash seized in a narcotics raid; from a wallet found on the sidewalk to the personal belongings of county jail inmates; from vials of blood extracted from drunken driving suspects to sexual assault examination kits collected from alleged rape victims. Each item must be maintained in the same condition as it is brought in until the law says it can be disposed of. Texas statutes cover it all: when and how to destroy drug evidence, what procedures need to be followed before abandoned property can be auctioned off, how long materials that may contain biological evidence must be kept.

Texas has one of the nation's strongest laws covering the retention of evidence that might contain biological material. In 2011, after a number of DNA exonerations, lawmakers expanded the definition of "biological material" to include any item that contains blood, semen, hair, saliva, skin tissue, fingernail scrapings, bone, bodily fluids, or "any other identifiable biological material" that may exonerate or incriminate a person suspected of a crime. Lawmakers further required that evidence in all unsolved felony cases be retained for at least 40 years, or kept until an inmate is executed, dies, completes the adjudicated sentence, is released on parole, or completes probation. The law requires all parties to receive notice of any planned destruction, and that process can be halted by the defendant, prosecutor, defense attorney, or court.

To address the added costs, lawmakers designated the Texas Department of Public Safety the depository for all biological evidence for counties with populations under 100,000. But that was all they did to ease significant operational and financial burdens that now fall on the more than 2,000 law enforcement agencies across the state, including roughly 800 local police departments. More evidence will have to be saved for far longer periods of time – in part because the law doesn't limit the retention of biological materials to those collected in connection with violent felonies, but rather requires keeping material collected in every felony case.

The new law "creates opportunities to solve many cases," notes Belton Police Chief Ellis, but it also raises questions. For example, should a letter that likely has a person's DNA on it be kept as evidence in connection with a felony fraud case? he asks. "If you follow the letter of the law, you're going to need to retain that."

Lawmakers and law enforcers are trying to anticipate scientific developments and guarantee that evidence will be around for coming advances – as with the extraction of so-called "touch DNA." That, says Vasquez, is a fancy name for the shedding of skin cells onto objects merely touched or picked up – like a salt shaker on a table. DNA remains on nearly every item a person comes into contact with, and DNA scientists are steadily perfecting the ability to extract individual DNA profiles from a pool of donors – perhaps being able to isolate the DNA of one person from among many who have touched a restaurant salt shaker over the course of a day. When that evidence is readily accepted by courts, the realm of potential evidence will increase exponentially. "[T]his philosophy has never changed: When a detective gets on a crime scene, [he] has to think like [a] suspect," Vasquez explained during a meeting with Robison, Mansfield PD evidence manager Vincent Hunter, and the Chronicle. "What has changed is thinking about it in a way of his touching something. Is there evidence there? We always taught officers, 'Bring us everything and the kitchen sink, and we'll go from there.'" Robison laughed wryly; she's had an officer bring in a kitchen sink, she said. So has Hunter. "They are literally bringing in kitchen sinks," Vasquez said.

Generously, only 7% of what is brought in as evidence is actually used in court, but all of the items collected by police are regulated by retention laws, so the cost to individual departments adds up. The Austin Police Department, for example, maintains a roughly 62,000-square-foot evidence warehouse (purchased and outfitted for roughly $3.2 million, says APD's evidence manager James Gibbens) where it stores an estimated 600,000 items, with approximately 60,000 items brought to the unit each year, at an annual cost of about $1.1 million.

Disorder Is the Norm

State lawmakers have done much to beef up evidence retention requirements – but they've done very little to ensure that the laws are followed with any consistency. For example, they haven't provided financial assistance to train evidence technicians or to provide for proper long-term storage. The 2011 law also directed a group of stakeholders to develop best practices for collection, retention, and retrieval of evidence, but they remain suggestions, and without financial incentive it is difficult to ensure those practices are followed. The sizes and budgets of law enforcement agencies vary wildly across the state: APD has a vast warehouse, tightly maintained and managed, but that's not the norm. According to Vasquez, the norm for most agencies is, at best, disorder.

And then there's the really bad: He's seen chemicals seized from a meth lab stored in cardboard stacked atop other boxes of evidence and leaking a corrosive brew; he's seen a human skull stored without packaging or any identifying information; he's seen a grenade, stored in a glass jar and kept in a locker easily accessible to county jail inmates; and he's seen boxes of evidence quite literally pitched into a closet, without regard to how the agency might later locate any individual items.

Lawmakers have so far failed to pass legislation that TAPEIT has spent a decade advocating: one code for all the laws governing evidence destruction. Currently, those laws are spread throughout different government codes. "How do you know what to do with found property, if you don't know to look in the [Code of Criminal Procedure] chapter on 'Search Warrants'?" Vasquez asks. If the state won't consolidate evidence and property laws into one place, won't require training or certification for evidence technicians, and won't provide a pool of money to help law enforcement agencies comply with best practices, serious problems – lost or stolen property, or the untimely and improper destruction of evidence – remain quite likely. If the state wants to standardize procedures, that's great, Vas­quez, Robison, and Hunter agree, but they each insisted that to get it right, "you need to train the end users."

That's not happening, not only in Texas, but across the country, says Joseph Latta, a retired 31-year veteran of the Burbank, Calif., PD who serves as executive director of the International Association for Property and Evidence. There's "no consistency, anywhere you look," he says. This isn't particularly surprising, he notes, since police officers are, by and large, in charge of evidence: "In the police department, we chase bad guys; we don't take care of stuff," he says. "It doesn't matter whether you're in Houston or Corpus Christi, Albuquerque or L.A. We may end up with the stuff, but we don't know how to take care of it."

Open any number of evidence rooms across the country and "you just want to cry," says Rebecca Brown, a policy advocate at the Innocence Project who was among the stakeholders tapped to develop Texas' new best practices and who, along with Latta, has been part of a U.S. Department of Justice-funded group working on a set of national standards. "Evidence rooms have often been ... I wouldn't say forgotten, but not [a] resource-heavy" focus for law enforcement, she says. Texas "does have good statutes," she says, "but the question is how [they're] being translated" into practice.

Unfortunately, says Latta, there is often little focus on implementation unless and until a department faces scandal – which, he notes, happens almost daily somewhere in the U.S. "It's unfortunate," he says, "but [the evidence room] doesn't get to [be] the top [priority] without a problem."

Remember Goliad

That was certainly the case in Houston, where years of neglect and mismanagement routinely put the HPD's evidence operation in the headlines. No one understands this better than HPD Capt. Charlie Vazquez, who oversees the 44 people in the department's property division. On average, the HPD takes in 65,000 items per year and stores nearly 400,000 at any given time – not including narcotics evidence, which is kept at a separate facility. "We made mistakes so bad they actually made a movie out of us," Vazquez says. Indeed, that 1981 made-for-TV movie (The Killing of Randy Webster) starred Hal Hol­brook as the father of 17-year-old Randy Web­ster, killed in 1977 by a Hous­ton cop who said the teen threatened him with a gun. As it turned out, the gun found next to Webster's body had been taken into evidence by the HPD in the Sixties and had long been recorded as destroyed; the weapon had instead been taken from evidence and was ultimately used as a throwdown in the Webster shooting.

Yet it wasn't until 2007, after HPD acknowledged that some 30 firearms had been stolen from evidence over the course of six months and likely returned to the streets, that officials made the move to upgrade the department's evidence operations. Security at the decrepit facility, used continuously since 1902, says Vazquez, was lax at best; two years and some $14 million later, HPD moved its operations into a state-of-the-art warehouse facility. In 2011, Vazquez was tapped to take over the division, and he has earnestly vowed that the department will not repeat the mistakes of the past – a point he has impressed upon HPD command staff. "When I was put over here, I was trying to point out ... just how important this operation is. I went through all of the [scandals] – the missing weapons, missing DNA," and then, he said, he offered up a lesson in Texas history. Remember the massacre at Goliad? he asked the HPD brass. In that case, Mexican President Santa Anna ordered the execution of more than 300 captured Texas soldiers; the slaughter horrified the country, and just a month later, during the decisive Battle of San Jacinto, after which Texas gained independence from Mexico, troops rallied with battle cries that included "Remember Goliad!" Vazquez paused and looked at the command staff: "I said, 'We need to remember Goliad as well,'" he said, putting up a photo of 1103 Goliad Street in Houston, the site of the department's century-old evidence facility. "Just like people came from Ohio, Tennessee, and New York [to fight at San Jacinto], I need people – [command staff], homicide, patrol – to fight for property," he told his colleagues. "Otherwise you're back to where you were."

And, frankly, going backward in a time of fast technological advancement is not an option, Vazquez says. Every item of evidence must be carefully considered and painstakingly tracked. "Instead of just being a fork, now it's a fork with possible DNA on it," he says, meaning it may have to be retained for decades – as well-preserved and easily retrieved in 30 years as it is the day it's brought in. With this level of heightened scrutiny comes the need for more thorough and carefully implemented policies; other than a jail, notes Belton's Chief Ellis, a department's evidence operation is the "largest liability in an organization."

That is indeed the case, says Ed Harris, APD's chief of field support operations. Harris remembers well the day he first toured the department's evidence storage facilities more than a decade ago. There were guns dumped in rubber trash cans in the basement of the department's Downtown headquarters, and evidence was locked inside a simple metal cage erected in a corner of the HQ's outdoor garage. "Oh my God, what have I gotten myself into?" he recalls thinking after the tour. "We had stuff everywhere. We were just like a lot of agencies." For years he fought to get the situation cleaned up, and, in 2010, the department finally moved its operation into its new facility. There are secured vaults for guns and money and drugs, two commercial refrigeration units for all manner of biological material, and aisles and aisles of blue plastic tubs and white bankers' boxes branded with bar codes that help to track the evidence stored inside. Applicants for Austin evidence jobs are vetted as rigorously as police cadets; it slows down the process but ensures integrity, says manager Gibbens. "I fought like hell to get where we are," Harris says. "I knew it was a ticking time bomb, and we had to take care of it before it went off."

Hillsboro Police Chief Tony Cain understands that intimately. Some eight years ago, Cain's property manager stole money from evidence; she said she intended to pay it back before anyone knew it was gone. She was fired. And Cain's "heart was broken, not only from the criminal side of it, but also that this person who we really trusted would steal from us," says the 18-year veteran. The incident made Cain realize that he needed tighter security and better training for employees handling evidence. "Probably most departments our size don't put the same resources towards this, but we know the importance of it," he says. And whenever the opportunity presents itself, he lets other Texas chiefs know exactly how high the stakes are. "What makes it so important is that it's the glue that binds us with the community. It's about trust," he says. "You do a good job of catching the crook, but because of the system it sometimes takes [a long time] to get adjudicated." Evidence is what makes that happen, he says. "The evidence part is not the fun part; the fun part is arresting people. But the evidence is about following rules and getting the community to trust us to get them justice. If we don't do the dirty work, justice can't be done."

Regulating a Hodgepodge

For Cornelius Dupree, it took more than 30 years for justice to open his Texas prison cell. In 1980, Dupree was sentenced to 75 years in prison for a rape and robbery he did not commit. It wasn't until 2011 that he was finally exonerated – precisely because Dallas County had maintained for more than three decades the evidence that would set him free. Indeed, with 24 DNA exonerations since 2001, Dallas County has freed the most wrongfully incarcerated men in the state that leads the nation in exonerations. But exactly why Dallas saved all that evidence, decades before there were any legal requirements to do so, is something of a mystery. Certainly, in that regard Dallas is a state, and perhaps a national, standout: nowhere else in the state does there exist such a comprehensive library of evidence. And District Attor­ney Craig Watkins has been widely applauded as a prosecutor unafraid to use that evidence to uncover past mistakes. But even Watkins isn't entirely sure how or why he's been fortunate enough to have the evidence in order to set right so many wrongs. "I don't believe that when Dallas stored this evidence they thought of DNA advancing to this level, but for whatever reason, we stored it and science has caught up," he says. Wat­kins suspects that the motive for keeping the evidence wasn't so that the county would be able to review its own work for error, but so that it could "protect the conviction."

Of course, evidence does both – and that's the point, he says. "We're responsible for some of the most important acts forced upon human beings – the taking of freedom or, in the worst cases in Texas, the taking of life." And being sure evidence is protected is key to fostering certainty within the criminal justice system, he says. "When the determination is made [that] there may be mistakes in the process, we don't want to destroy our ability at some future date to right that process." Watkins says the story of Dallas' exonerations should serve as a cautionary tale for the rest of the state – and that his county's experiences demonstrate the need for mandatory, standardized evidence-handling policies throughout the state. "I think that's critical. You go from one county to the next, and you have different policies," he says, and there's "no excuse" at this point not to ensure compliance by all law enforcement agencies. "Dallas is positioned to redefine prosecution because we have the old evidence and we [are] able to advocate – and we will – for statewide standards" and policies, not only for storage, but also for training for employees tasked with ensuring evidence is properly retained and easily retrieved.

That is music to Gregg County Com­mis­sion­er Darryl Primo's ears; in his county – as in many others – there are no written policies about who handles evidence, or where or how it should be stored. An 18-year official in the Northeast Texas county that includes the city of Longview, Primo has become passionate about the problems of evidence storage and retention, an interest prompted by the growing number of exonerees in Dallas County. The more he read about it, the more he wondered whether his own county would be able to put its hands on key evidence if the need arose to revisit a prosecution. He decided to find out; he made calls across the county, to the D.A., to the sheriff, to the district clerk. Did anyone have a policy in place regarding the storage and retention of evidence? No, he was told. Well, then who was responsible for keeping evidence in criminal cases, he wondered. The county had evidence stored in any number of locations – "a locker at the sheriff's office, in a closet" for some items, he says; biological evidence, he learned, was being stored in a small dorm fridge kept by the district clerk. The materials were stored next to Cokes and candy bars, and the refrigerator was accessible to all employees. Primo was stunned. "It was a little old dorm fridge in her office," he recalls. "A defense lawyer would disqualify that evidence in a heartbeat." The clerk has since moved evidence to a locked refrigerator – but only after Primo made a stink about the situation to a local newspaper. "She had no idea that if the evidence gets contaminated that it is not admissible in court," he says, that she was "sealing the fate of anyone who might need that evidence."

Primo has been pushing local officials – including judges, the sheriff, and the D.A. – to take seriously the need to develop stringent polices about how evidence will be handled and who will be responsible. So far he hasn't had much success, he says. The county's "never had an incident" that would warrant that, he says he's been told. In July 2012, he penned a letter to the county's five criminal court judges, again suggesting that the county "adopt a written policy to govern" storage and preservation of criminal case evidence. To date he hasn't gotten a single response. "I was very surprised," he says. "You would think they'd care."

Primo doesn't think his county's experience is unique. "We're all over the map," he says. "It's the law in the state of Tex­as that counties keep ... evidence. That's the law legislators have passed ... but who is to keep it or how it is to be kept is a hodgepodge." Responses to an informal questionnaire emailed to Texas sheriffs and to the state's district and county clerks by the Chronicle confirmed wide disparities in the way evidence is handled and stored. Many clerks said they did not have any policies governing the storage of criminal evidence, and many said those duties are handled by someone else in the county. While many sheriffs responded that they do refrigerate biological evidence, for example, many also responded that they do not segregate drugs from other stored evidence. Primo believes strongly that the state must step in and require that policies be written and standards be followed. Funding the enterprise can be accomplished with an extra fee on court filings, he suggests. "Nobody foresaw this coming," he says of the DNA revolution. "We can't undo what we did in the past, but we can take steps now to ensure this stuff is protected from now on for someone 20 years down the road."

Setting Things Right

The crime scene inside room 126 of the Sand and Sage motel in Odessa revealed the aftermath of the violent and bloody death of Father Patrick Ryan, a well-liked Catholic priest stationed in the tiny Pan­handle town of Denver City. Two years after the 1981 murder, James Harry Reyos, who was friendly with Ryan and says he'd had a sexual encounter with the priest days before he was murdered, was sentenced to 38 years in prison for Ryan's killing. Reyos is adamant that he is innocent, and virtually everyone who knows the case well agrees. Importantly, Reyos had a solid alibi for the time of the murder that included a speeding ticket issued to him in New Mexico, hundreds of miles from the scene of the crime. Unfortunately, Reyos, an alcoholic who has expressed deep shame over his homosexuality – and the unexpected sexual encounter he had with Ryan – later told law enforcement officials while in a drunken stupor that he was "responsible" for the crime. That was considered a confession and was apparently enough for jurors to ignore other concrete details that point to Reyos' innocence. Reyos has long tried to clear his name and has had champions along the way – notably both from law enforcement and from famed and now-deceased Dallas Morning News investigative reporter Howard Swindle – thus far without success.

Had the crime happened in Dallas County instead of Ector County, there is good reason to believe that the quest to clear Reyos would already have been successful. Ryan was found inside the motel room naked and badly beaten, his hands bound tightly with a white sock. There was blood spatter and bloody fingerprints throughout the motel room, open beer cans on a dresser, and discarded cigarette butts littering the floor – all of it evidence that today might be subjected to DNA testing that could definitively reveal the identity of his killer. Unfortunately, none of that evidence still exists; Ector County discarded it long ago, officials there told us in 2005. (See "Who Killed Father Ryan?," June 17, 2005.)

Of course, it is hard to know exactly how many people may be serving sentences for crimes they did not commit – and that worries Primo, as he struggles to get his county to enact policies that might prevent that outcome. "The issue becomes, how many other cases could have, or would have, been resolved in a more just manner if the evidence had been retained?" he wonders. To think that the state could be preventing miscarriages of justice but simply isn't because of a lack of will or even a minimal amount of funding for training and preservation, disturbs Primo. "To a person sitting in a jail cell who knows they're innocent who wants testing, to find out that the county hasn't cared about that evidence ... that's really sad."

Indeed, UT law professor Bill Allison knows well the power of long-held evidence; he represented Michael Morton back in 1986 after Morton was accused – falsely – of murdering his wife Christine at their home in Williamson County, a crime for which Morton spent nearly 25 years behind bars before finally being exonerated in 2012, thanks to DNA testing of evidence that had until recently been ignored by the state. "We ought to be looking five to 10 years down the road," toward scientific advancements and should be working toward them, he says. "We ought to know what's coming." Dallas D.A. Watkins agrees. "Out of an abundance of caution," he says, Texas needs to act now to ensure compliance with evidence laws and to mandate proper training for all in law enforcement who handle evidence. "Science will progress, and science allows us not only to find mistakes that were made in the past and to make them right, but also to go forward to ensure that we don't repeat these mistakes in the future."

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