Dallas DNA exonerations expose evidence retention flaws

If the Dallas crime lab hadn't kept evidence from Cornelius DuPree's case 30 years ago, he wouldn't be a free man working as a legislative intern this session for state Sen. Rodney Ellis. But evidence retention issues are too often relegated to the back burner, even in the innocence reform movement.

A USA Today story by Kevin Johnson ("Storage of evidence crucial to exonerations," March 28) makes an excellent point about all the DNA exonerations out of Dallas, which has seen as many innocent men walk out of prison based on postconviction DNA testing as the rest of Texas combined: The reason isn't that Dallas convicted more innocent people than everybody else, they just saved the evidence so it was later available for testing. Reports Johnson:

In Dallas County, the wrongs are being righted because "the evidence — decades after it was collected — was there to test," District Attorney Craig Watkins says. The county has been retaining evidence for decades, some samples since 1978.

But in many places, the samples that ultimately freed DuPree, Woodard and Chatman would not have been saved. Only about half the states — including Texas — now require the automatic preservation of DNA evidence after conviction, according to The Innocence Project, which uses DNA evidence to assist inmates' claims of innocence. Sixteen states have no preservation laws.

As new cases of wrongful convictions continue to emerge based on DNA tests, the campaign for consistent preservation standards is gaining momentum across the country.

Not only did many jurisdictions not keep old evidence, in some like Bexar County, when old caches of rape kits were found, prosecutors declined to follow Watkins' lead, retesting only in cases where guilt might be proved but not vetting for possible innocence claims.

As Grits has emphasized before, the number of DNA exonerees represents just a small sample of the total number of innocent people convicted and incarcerated in Texas. After all, biological evidence exists in less than 10% of violent crimes to begin with, meaning for every DNA exoneree there are likely nine other innocent people who DNA cannot exonerate. But when you add to that Johnson's observation that most jurisdictions do not retain old biological evidence, the chance of postconviction exoneration for most innocent convicts become slim indeed. In this recent post, Grits compiled the various available estimates of actual innocence rates to guesstimate that some 2-3,000 people at any given time are locked up in TDCJ for a crime they didn't commit (estimates range from 1,200 to 5,000+).

Evidence retention issues are a red-headed stepchild to begin with. Labworkers see it as beneath them, and a hassle; district clerks are often ill-equipped for the job; and historically the evidence room is where police departments assign either the disabled or sometimes problem officers who can't be trusted on the street. Charley Wilkison of CLEAT has boasted to me that quite a few local police associations have been organized out of the evidence room because disciplined officers assigned there decided to unionize. The professionalization of evidence retention has only really begun in the last decade or two and only in the largest departments (of necessity). Wrote Johnson:

Joe Latta, executive director of the International Association for Property and Evidence, says problems with missing and mishandled evidence plague the industry.

"The vast majority (of police agencies and crime labs) have a hard time taking care of what we call 'the stuff,' " says Latta, one of 23 members of the federal panel that is developing national guidelines for evidence retention.

He says many evidence warehouses are run by police or other law enforcement officials who have no background overseeing those operations. Civilian scientists, not police, maintain the biological evidence in the Dallas lab.

"Police chase bad guys," Latta says. "We have no experience whatsoever taking care of warehouses."

Notably, one of the issues that sunk Williamson County District Attorney John Bradley's nomination in the Senate for Forensic Science Commission Chairman was his advocacy among prosecutors of securing destruction of untested biological evidence in plea agreements on the grounds that future actual innocence claims might otherwise "trump" any plea deal. That kind of gamesmanship - where prosecutors see innocence claims as an evil to be prevented rather than an opportunity to seek justice - compounds the problems created by shoddy evidence retention. For too many actors in the system, the purpose of evidence is only to secure a conviction and once that's accomplished it's no longer treated as valuable. But it was certainly valuable for Cornelius DuPree and the other exonerees cleared through DNA testing and - because of the relative rarity of biological evidence and shortcomings in evidence retention - it's clear their cases represent only the tip of the iceberg.