The Future of Austin’s Crime Lab
The backlog of DNA evidence is moving, but is it shrinking?
By Sarah Marloff, Fri., Dec. 2, 2016
Six months have passed since the Austin Police Department announced the shutdown of its DNA lab due to poorly trained staff and the use of outdated, faulty procedures. Without a functioning lab, the city and county collectively have struggled to process DNA evidence in criminal cases, creating substantial holdups for district prosecutors, criminal defense attorneys, survivors of sexual assault and other crimes, and their alleged attackers.
News of the shutdown prompted the #EndtheBacklog campaign, a coordinated effort by sexual assault advocates who feared the already large number of untested rape kits (sexual assault forensic exam, or SAFE kits) would multiply without a functioning local lab. In the past two years the backlog had grown to 484 untested kits, with an additional 126 sexual assault cases pending that contained other forms of DNA evidence. Advocates and survivors spent much of the summer speaking to the importance of testing rape kits in a timely manner in hopes of persuading City Council to allocate funding toward clearing the backlog and demonstrating survivor support.
In September, during sessions to determine the city's 2017 fiscal budget, Council approved an additional $1.4 million in funding for the lab – money to go toward hiring seven new forensic analysts and one new supervisor-level employee upon its reopening, at the time set for Feb. 2017. The additional staff should increase the number of kits lab workers are able to test each week. Prior to June's lab shutdown, analysts were testing about 40 kits per month. However, at Eloise House, the SAFE Alliance clinic where most local kits are collected, on average, one to two people are requesting new rape kits daily.
Both City Council and APD are working to ensure that pre-existing kits get tested. At least 1,000 kits from the back-backlog – that first "back" referring to untested kits that are now over one year old – have already been shipped to a contracted lab in Utah (see "The Cost of Clearing the Rape Kit Backlog," Sept. 16). The day before Council passed its expanded budget, former Austin Police Chief Art Acevedo promised to find the required funds to clear the backlog in the department's existing budget – though it remains unclear where that money will come from. On Nov. 3, Council also approved APD's proposal for a six-year partnership with Dallas County's Southwestern Institute of Forensic Sciences to help eliminate its remaining 484 untested kits. (SWIFS will continue clearing Austin's backlog after a local lab reopens. The local lab is expected to focus on newly acquired evidence.) The Department of Public Safety is in possession of evidence from an additional 112 pending cases, 104 of which contain SAFEs, while newly collected kits are currently being sent to the DPS, which has agreed to process 20 cases each month that APD officials and district prosecutors determine are in need of expedited testing.
Assistant City Manager Rey Arellano, who oversees Austin's three public safety departments, told the Chronicle that "APD's DNA laboratory is on track to reopen in the first quarter of calendar year 2017, at which time it will be certified to process DNA samples using the latest scientific techniques." He said "current DNA lab staff are being trained to the new [forensic] standards," and that "APD is in the process of hiring" a new manager and supervisor to preside over the lab's forensic division.
But advocates and city officials alike remain uncertain of APD's ability to run a well-functioning lab, as questions regarding its future – and where that future may be – have begun to circulate at City Hall.
"The more we learned, the more we realized [the lab] needed a lot of attention," City Council Member Greg Casar told the Chronicle last month, noting the "unacceptably large" backlog of sexual assault DNA evidence. "What's really important now is for the community and [city] staff to analyze what got us here in the first place and to come up with a solution."
APD's Lab or Elsewhere
On Sept. 14, just before Council approved the FY 2017 budget, Casar issued a memo to the members' online message board directing the City Manager's Office to reassess the leadership and operation structure at the crime lab. Under this guidance, ACM Arellano was to assemble a "team of experts," wrote Casar, to meet and assist Council in considering the benefits of an APD-run lab as opposed to one that would operate outside, independent of the department. That group, Arellano said, remains unassembled: "The effort to plan and scope the study will begin shortly," he told the Chronicle in October. The ACM did not respond to a follow-up email sent Nov. 16.
In June, at the time of its shutdown, APD's forensic lab was the only lab in Texas' four most populated cities to operate under the purview of a police department. County governments control the labs in Dallas and San Antonio; Dallas' runs under the medical examiner, and San Antonio's is "administratively separated" from that same office in Bexar County. Houston's lab is overseen by Mayor Sylvester Turner and a nine-member board of directors.
Officials at the city and county level and local activists remain wary of APD regaining control over the lab due to its past failures handling evidence and the effects those failures have had in criminal court cases. According to a memo Travis County Judge Sarah Eckhardt delivered to county commissioners on Nov. 15, approximately 3,600 cases that have already been tried were potentially impacted by scientific failings at the lab. Prosecutors throughout the Travis County District Attorney's Office are having trouble taking cases involving DNA evidence to court. Eckhardt estimated that 90 people currently sit in county jail cells awaiting testing for DNA evidence relevant to their case. Few people, however, were willing to render an opinion publicly regarding whether the lab should stay within APD or head elsewhere: to the county, another extension of the city, or somewhere independent altogether.
Ana Rodriguez DeFrates, co-founder of the Survivor Justice Project, an advocacy group that formed after APD announced the crime lab's closure, said that she's anticipating Arellano's review. "I read the audit issued by the Texas Forensic Science Commission, which revealed there were some serious problems with our lab meeting the latest scientific expectations," she said. "[The lab's] infrastructure doesn't have the ability to process what's coming in currently, and there are implications for what that means for sexual assault survivors specifically – though it's bigger than just sexual assault survivors. Evidence may have been compromised."
DeFrates said she isn't yet leaning toward an independent lab or one that reopens under APD control "without more information." She awaits ACM Arellano's analysis "of whether it's more productive to go with an outside group."
Casar isn't ready to make an assessment, either. But he did acknowledge that "multiple scientific organizations have advocated for independent labs, and I take that advice very seriously. It's why we authored a place in the budget to look into this."
The "CSI" Effect
To hear the Texas Forensic Science Commission tell it, APD's troubles at the crime lab have been longstanding and severe. Its lab managers were not qualified. Analysts, the commission wrote in a lengthy audit, "struggled in responding to questions regarding foundational DNA topics." Reagent blanks had been contaminated. Quality assurance programs had been distorted. Expiration dates on enzymes had been run over; directions to "make fresh daily" had been ignored.
The biggest blunder, however, had to do with the way APD's technicians approached and analyzed the DNA evidence within their lab. Since 2010, the commission asserted, APD's lab employed one particular testing method of DNA known as "quant-based stochastic threshold," which uses a particular criteria to determine if certain DNA points should be amplified for more intensive inspection. The problem, the commission noted, was that "using quant-based ST to determine potential stochastic effects in DNA mixtures is neither scientifically valid nor supported by the forensic DNA community." Indeed, no other crime lab in Texas employs the method. The FSC noted that it was aware of "no peer-reviewed journal article citing the acceptance of quant-based ST for mixture interpretation."
One does not need a master's degree in chemistry to recognize that APD has been making harmful mistakes in its lab for the better part of the past decade. Kent Anschutz, a criminal defense attorney who previously spent 10 years working as an assistant district attorney in Travis County, told the Chronicle that he believes the crime lab's issues are the result of departmental neglect. "Probably because it's not within the traditional law enforcement 'Boys in Blue' arena," he speculated. "The lack of attention is not surprising, but ... it cannot continue. [DNA] is an integral part of crime processing."
The lull in DNA testing is already having a massive effect within the local criminal justice system. District Judge Karen Sage says the holdup on DNA testing has pushed her and her colleagues into "crisis mode."
"There are a lot of issues involved in bringing sexual assault cases to closure," noted the judge, who presides over the 299th District Court. "For us on the bench, the critical piece we're seeing is getting the DNA evidence in time. I have a lot of people in jail just because we are waiting on DNA."
Individuals interviewed for this story commonly referred to this as the "CSI effect," a nod to the rapid-fire science found on network TV crime shows. Anschutz suggested that most juries now expect to see DNA results in order to prove guilt beyond reasonable doubt. "The state is afraid to go to trial without DNA results regardless of what [they might indicate]," says Anschutz. "They don't want the defense to be able to argue 'Where's the DNA?' Attorneys are having to step and shuffle to get delays." Anschutz says he's currently working with a client who was accused of murder in Jan. 2015 and has been incarcerated at Travis County Jail for the past 22 months, on the county's dime. Together they're waiting for a return on DNA testing, the results of which could exonerate Anschutz's client.
Sage, too, knows the dangers that come with a lack of proper DNA testing. She shared a story with the Public Safety Commission on Nov. 7 about a case she oversaw this fall that involved an alleged sexual assault offender who had passed through the system with previous related charges. The alleged offender's lawyer demanded the case go to trial without the presence of DNA evidence. After the attorney raised the Sixth Amendment granting citizens the right to a speedy trial, Sage was forced to dismiss the case on lack of evidence.
"The backlog is affecting public safety," Sage told the PSC. "I can't tell you my frustration. I had a detective in the courtroom who did an amazing job, the State did everything they could, as did the defense attorney. Everyone is doing everything they can to see that justice is done right. And I couldn't do it because of the backlog."
Meanwhile, in Houston
APD's is not the first crime lab in the state to come under fire for failing to meet FSC standards. Houston's lab has a long, perhaps even messier history of poor forensic work. In March 2003 The New York Times reported that an audit conducted on the Houston lab found "technicians had misinterpreted data, were poorly trained, and kept shoddy records." That audit found that lab staff had "used up all available evidence, barring defense experts from refuting or verifying their results. Even the laboratory's building was a mess, with a leaky roof having contaminated evidence." Several months later, two grand juries opened separate investigations into the lab. At the time, legal experts told the Times that HPD's lab was the "worst in the country."
Former Houston Mayor Annise Parker eventually decided to remove the lab from HPD's control in 2011. Three years later, it officially reopened as the Houston Forensic Science Center. In less than a year, the independent lab announced that it had tested and reviewed the city's 6,663 untested rape kits dating all the way back to the Eighties. Yet, that hasn't absolved the crime lab of all its issues. According to the Houston Chronicle and the Harris County Criminal Lawyers Association, a recent audit of the lab revealed a new layer of problems pertaining to its crime scene units and evidence collection practices. HPD senior staff as well as the Houston Police Officers Union are currently fighting to retake control of the lab. Former HPD Chief Charles McClelland told the Houston Chronicle in August that he doesn't believe HPD should have the lab.
"I don't think it would build confidence in the public's mind – absolutely not," he said. "To solve the issue is to have extremely well-trained evidence technicians that are independent of HPD."
Confidence In the Lab
Beginning in October, Austin's Public Safety Commission planned to devote a chunk of its Dec. 5 meeting to discussing whether the city should annex the crime lab from APD, thereby reinstituting it as an independent body, or keep it running within the police department. On Nov. 22, interim Chief Brian Manley delivered a letter to the commission requesting a postponement of the agenda item for "at least a month." Manley said he's been meeting with Eckhardt, Arellano, Mayor Steve Adler, District Attorney-elect Margaret Moore, certain assistant district attorneys, and members of Council offices. Together, they're "working toward hiring an outside expert to oversee this review to ensure confidence in the findings." He suggested that the PSC drop the related discussion from its Dec. 5 agenda "since all parties involved are working toward a course of action that is consistent with the PSC's direction." He also floated the idea of "using a private lab."
PSC chair Rebecca Webber agreed to remove the agenda item until the outside review has been completed. She said she applauds APD for the decision to seek external input. APD, however, will provide the commission with an update on the backlog at the Dec. 5 meeting, and the updates will continue monthly moving forward.
Daniela Nuñez, vice-chair of the commission, supports Webber's decision. In November, Nuñez told the Chronicle she believes the city should do whatever restores the public trust in how it manages important evidence. "APD failed to run a good lab," she said. "We need to explore how to solve this crisis. We all need to seek out how to have a high-functioning lab with integrity."
APD declined to comment specifically on this story, and outside of brief mentions during press conferences, hasn't spoken one way or the other about an essential need to maintain ownership. Acevedo, who left APD to lead Houston's Police Department on Nov. 30, said during a June press conference announcing the shutdown that he considered it essential for the police department to hold control of the lab. "If you don't have your own crime lab, you are not masters of your own destiny in terms of prioritizing your own cases," he said. It remains to be seen what sort of emphasis the department will put on its relationship with the lab now that Acevedo is no longer in charge.
Judge Sage said during November's PSC meeting that she's "happy to hear" the city is looking in to making the lab independent. "DNA has never been a quick process," she said. "But we're at a critical point now. Whatever resources we can put toward catching up this backlog is absolutely critical." Eckhardt agreed with Sage's assessment, and applauded the recent agreement between APD and Dallas County. "It's very gratifying to say that the city has shown a great deal of attention and a sense of urgency – appropriate to the circumstance – to this matter," she said. She told the Chronicle that she anticipates the city and county partnering to look at the short- and long-term effects of the lab's troubles, suggesting two separate lines of inquiry: "One to look back at the credibility [of already processed evidence], and one to look forward at the best practices nationwide."
Mike Levy, a longstanding member on the Public Safety Commission, said that he doesn't believe the lab should operate under the purview of APD. Instead, he believes Austin should follow in the footsteps of Dallas and San Antonio, and hand the lab over to the county, where it could conceivably operate under the Travis County Medical Examiner's Office.
"Cops shouldn't be overseeing a science effort any more than a nutritionist should be overseeing an electrician – they're two different deals," said Levy. "For the medical examiner, it's science to science."
Anschutz agreed. It makes for good television to have everyone on the same team, but scientists working within the same professional chain as detectives and district prosecutors can lead to a "significant risk of confirmation bias," he said. He referenced the 2009 National Academy of Sciences report, "Strengthening Forensic Science in the United States: A Path Forward," which recommends crime labs operate as independent entities. "It only makes sense," he said. "Obviously this has been a paradigm that some cities have moved to. Take Houston. I know, for sure, from discussions with several assistant district attorneys who are currently doing damage control in this disaster, that they agree [an independent lab] is a good direction to move in."
Casar told the Chronicle he expects a "pretty significant briefing" from Arellano early in 2017. The council member summed up the sentiment of activists and politicos in his assessment of the decisions he and his colleagues will eventually make.
"It's not that I want a lab under APD or an independent one or one under some sort of joint government structure," he said. "My goal is a swift and accurate pursuit of justice, which is why it's really important to bring all the players together to conduct a thorough investigation to figure out which will give the best results to our survivors."
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