Sunday, July 15, 2012

Texas crime labs ill-equipped to handle coming volume of touch-DNA cases

The lede to the Nature News blog article mentioned in the last Grits post described a fascinating occurrence of faulty forensics I hadn't heard about: "Investigators who linked DNA from Occupy Wall Street protesters to a murder scene in New York City recently admitted that they’d made a mistake. No one was locked behind bars, but all too often they are."

Yikes! Yes the DNA will always match if you're repeatedly testing your own! Further evidence, if it were needed, that sloppy lab work can lead to false accusations. (And that lab workers' DNA should be routinely collected.)

Anyway, the link about the Occupy protester leads to a related July 11 story in the New York Times describing the expansion of the use of so-called "touch DNA" by law enforcement, which included these interesting tidbits about New York City's massive, and growing DNA caseload:
The ability to analyze such samples, which are known as “touch DNA,” has allowed investigators to use DNA from scenes where bodily fluids may be absent, Dr. Prinz said. Investigators said that the more heavily the suspect was sweating, the more likely he or she was to leave a useful touch DNA sample.

In 2011, the city medical examiner’s office issued some 11,000 reports involving DNA collected from crime scenes, compared with about 3,000 in 2006, Dr. Prinz said. Reports generally correspond to a single incident, and may involve multiple samples.

Last year, about 32 percent of the incidents in which DNA was sought were property crimes, primarily burglaries and robberies, Dr. Prinz said. Homicides make up only 6 percent of the incidents from which DNA is sought, and sexual assaults are an additional 20 percent. Recovered weapons are swabbed for DNA, too, and account for about 10 percent of the caseload. The remaining cases, Dr. Prinz said, involved DNA taken directly from known suspects for comparison, as well as an assortment of missing person cases, hate crimes, arsons, and other crimes.

In 2011, the medical examiner’s office entered DNA profiles taken from about 2,050 criminal events that year into the F.B.I.’s DNA database. About 24 percent of those resulted in a match against the DNA profiles of known individuals, she said. 
DNA testing in real life is not like on CSI where the computer instantly comes up with a match. In the real world making that determination can take many hours of staff time. This source estimates 54 sequential staff hours per test in a typical rape case; more in a more complicated investigation. DPS labs can process about 518 DNA cases per month, according to a 2010 federal grant request aimed at reducing backlogs. At that time, the agency told the Justice Department, DPS had 75 DNA technicians who could each process about 16.4 samples per month. So this is a labor-intensive process for the lab workers and can't be scaled up quickly.

I don't think Texas' DNA caseloads are quite so laden presently with property-crime cases as in New York, but there's a significant, statewide push from the media and grassroots neighborhoods groups to use crime-labs that way. If they did, they'd both catch more crooks and also generate a few more false positives. But of more immediate importance, it would dramatically boost demand for DNA testing at a time when lab capacity will likely remain flat, at best. Indeed, a new fee-for-service lab in Montgomery County is unexpectedly closing.

Grits expects Texas labs to expand use of touch DNA because the public and local law enforcement will demand it. But I also expect problems to arise including utterly insufficient lab capacity, a lack of qualified, trained personnel (particularly at labs outside the main urban areas), and delays for agencies that don't use fee-for-service labs or perform the work in-house. DPS, to their credit, just finished  a major expansion of their statewide crime lab system. But that hasn't and likely won't eliminate DNA backlogs, which the agency told DOJ have reached as long as 10 months.

Texas has made enormous investments at the state and local levels to expand and professionalize its crime labs over the last seven years. But crime lab volumes are at the beginning of a scary-steep growth curve which, even after those investments, the state appears ill-equipped to handle. In the end, the expansion of DNA use to solve nonviolent crimes will likely be limited by law enforcement's willingness to pay for that service on a per-test basis, which is increasingly the only alternative for waiting months for DPS. From a politicians' perspective, that's when "tuff on crime" runs smack dab into "no new taxes."


Anonymous said...

Grits, thank you for touching on this very important topic. I frequenly disagree with much of your commentary, but in this instance you are absolutely correct. I've commented before that I think advances in forensic technology are rapidly outpacing the level of available funding for such technology.

At the same time, you have people like Court of Criminal Appeals Justice Keasler making statements in a recent case (Skinner, perhaps?) to the effect that prosecutors "should be testing everything." While that may sound great in principal, who's going to pay for it?

And while it may be a good idea to "test everything" in a death penalty case, the fact of the matter is that jurors know that touch DNA testing is available and they are coming to EXPECT it in EVERY case. It's not uncommon these days for the lack of DNA testing to be a major defensive issue in garden variety drug, weapon or burglary cases. It's quite simple for defense attorneys to argue that testing SHOULD have been done. That's actually a pretty effective argument to a jury that is being asked to send a defendant to prison for any length of time.

Beyond the issue of whether or not law enforcement is willing to pay for testing, is the issue of when an indigent defendant might be entitled to request that DNA testing be done. Most defendants (again, see Skinner) have nothing to lose by seeking to have DNA testing done. Even in cases where they know they're guilty, they might get lucky with a DNA test and find some third party's DNA at a crime scene. Who pays for that testing? Is the existence of untested forensic or biological evidnence always potentially exculpatory such that it implicates the Brady rule? If prosecutors disclose the existence of testable forensic evidence (which they probably should) you know that 99.9% of the time the defense is going to want it tested.

Some of these questions might be more easily dealt with in large metropolitan counties which fund their own crime labs. But what about smaller counties that have to rely exclusively on DPS for their lab testing? For the reasons you noted, there are already DPS backlogs in testing and it's bound to become worse.

Ultimately, this will be an issue that legislature is going to have to deal with. The technology is there. The public knows it. Juries typically want as much evidence as they can get before they feel comfortable returning a guilty verdict which may result in significant punishment. And both law enforcement and the defense are going to want to have the testing done. It's all about the money.

Anonymous said...

There is another big problem with "touch" DNA -- it leads to the filing of a large number of fairly useless charges that are not proveable in court. The local practice on these property DNA crimes is that the police collect a sample, and if it matches someone they say "case solved" and call it a win.

They then forward the DNA report to the prosecutor. There is usually *zero* other evidence or investigation. The police usually don't even screen the DNA against owners (as an example, DNA recovered from a stolen car back in 2010. In 2012 they get a hit from a recently arrested/tested person, charges are filed. The defense attorney has to point out that there was a hit because it was the owner's DNA). Similarly with fingerprints, when the cops find a print they write 'solved', the young ADA gets a file with nothing but a fingerprint -- and since there is no evidence about when/how the print got there, there is no criminal case - just a bunch of wasted money and time. Only rarely are we seeing 'touch' evidence corroborated by *anything*, heck the police appear to have a secretary who merely types up a form when they get a 'hit.'

The prosecution can try and armtwist a plea (usually depending on how hardworking the defense attorney is) or fold multiple charges into one plea deal (most crooks will gladly plead to things they didn't do if it means a good deal). In the end, it doesn't seem to be doing nearly as much for crime prevention as promised.

Anonymous said...

Interesting to know Anon 0909.

For some time now no inmate in the TDCJ system gets out without having to submit to a DNA sample. Everytime our unit submitted a sample that drew a hit when they put it in the crime database we would get an email saying; "congradulations to the
unit, a DNA sample you sent in month? solved the following crime". It's disapointing to hear that for the most part, that was not ture.

Anonymous said...

Everyone is so focused on getting "touch" DNA but when its the only evidence against someone what does it really mean ?? That someone at some point touched something. Then begins the process or putting together a case around the touch DNA. To me seems like its a whole lot of waste of time and money. I can understand DNA and rapes. But property crimes? Any smart State Attorney would decline a case that revovles around touch DNA