Senate bills encourage retention, testing of old rape kits, DNA evidence

A couple of bills were heard in the Senate recently related to evidence retention and testing old rape kits that would help solve cold cases and exonerate innocent people who were falsely convicted.

Last week SB 1616 by Sen. Royce West, a bill originating with Dallas County DA Craig Watkins' office, passed out of the Senate Criminal Justice Committee. It would have DPS create rules that establish "statewide, uniform guidelines to be used in the collection, retention, and storage" of biological evidence. Regular readers know that the reason Dallas has seen so many DNA exonerations is that they actually kept old biological evidence when other counties destroyed it. This bill would create standards for "collection, storage, preservation, retrieval, and destruction of biological evidence," according to the bill analysis, that would force other jurisdictions to do the same. (See related coverage from the SA Express-News.)

Relatedly, yesterday the same committee heard SB 1636 by Sen. Wendy Davis, which would mandate the Department of Public Safety, if resources are available (and they are not) to eliminate the backlog of untested rape kits sitting around at police departments and crime labs around the state. The Texas Tribune's Becca Aaronson reported that:

According to a fiscal analysis of the bill, Houston, Dallas, and San Antonio alone have more than 22,000 untested rape kits.

“It sure does sound like an awful, broken system to me,” said Criminal Justice Committee Chairman Sen. John Whitmire, D-Houston, expressing concern for women who are sexually assaulted and then undergo the invasive process of submitting biological evidence, only to find out it won't be tested.

But DPS estimates it would cost Texas more than $11 million to outsource testing to crime labs with enough personnel to process all of the rape kits.

DPS last fall received a $2.4 million grant from the Department of Justice for reduction of its DNA testing backlog, including old rape kits. According to the grant request (which Grits recently obtained under the Public Information Act), there's a roughly 10-month wait at DPS labs for DNA testing. DPS received 7,076 DNA samples for testing in 2009, a 23% increase from the year before, and predicted 8,500 samples would be submitted in 2010, an additional 21% increase. That's quite a two-year growth rate, and the more DNA evidence is used for property crimes (about 35% of DPS' current backlog), the larger that number will grow The DOJ grant pays for overtime for crime lab workers to perform extra tests, which means it actually might be cheaper (and allow more tests to be performed) to outsource some of the backlog to private labs.

DPS labs can process about 518 DNA cases per month, according to their grant request. The agency has 75 DNA technicians who can each process about 16.4 samples per month. Crime lab director Pat Johnson told the Senate committee that his people were working at capacity and if they were required to test old rape kits, they would have to outsource the task at roughly $1,000 a pop.

Someone from San Antonio PD testified that forcing crime labs to test all the evidence would be a tremendous unfunded mandate. But in the discussion it became clear there are no teeth to the testing requirement - if money isn't available it won't happen, which makes the bill more of a symbolic statement than a substantive solution to rape kit backlogs.

In Fort Worth, according to testimony, police tested all their old rape kits over the last seven years and identified five serial rapists - i.e., people who were already in the federal CODIS database of DNA profiles for another rape. Nobody mentioned whether those five were already convicted, imprisoned, etc., but clearly the identification of potential serial rapists is the main benefit from testing rape kits in cases where they weren't needed as evidence in the instant case. Otherwise, law enforcement interests testified, often the rape kit only proves a sex act occurred, but cannot prove whether there was consent or speak to other issues affecting the defendant's culpability.

I was at the hearing testifying on behalf of the Innocence Project of Texas (IPOT), and suggested to the committee that they consider following the model Craig Watkins employed in Dallas, partnering with IPOT to vet cases one-by-one to determine if testing is needed instead of slogging through testing every last sample. That model would let the state get a lot more bang for the buck from the federal grant resources available to DPS and help prioritize which tests should happen first.

Speaking of which, the US Department of Justice recently gave a separate grant to the Houston PD to study causes of rape-kit backlogs, research which will hopefully help develop protocols for how to prioritize testing of old rape kits with limited resources. Once that research is done, it may suggest ways to handle large rape-kit backlogs in the absence of sufficient funds to test every sample. Too bad nobody has performed such an assessment before now.