Monday, July 28, 2014

Dallas man exonerated via testing rape kit backlog

While I was on vacation in Mexico last week, Texas saw its first exoneration in which the District Attorney proactively tested samples from rape kit backlogs and the exoneree had pled out, long ago served his time, and was not actively sought DNA testing. Reported Mark Berman at The Washington Post (July 25):
In 1990, Michael Phillips was convicted of raping a 16-year-old girl at a motel in Dallas, Tex., where they both lived. Phillips pleaded guilty because, he said later, his attorney told him that as a black man who had been accused of raping a white teenager, he should try to avoid a jury trial. He went to prison for a dozen years and, after his release, spent another six months in jail after failing to register as a sex offender
Now, nearly a quarter of a century after he was convicted, Phillips’s name is being cleared. And, in an unusual twist, he didn’t even realize it was happening.
Hundreds of people have been exonerated through DNA testing, with 317 such post-conviction exonerations since 1989, according to the Innocence Project. This week, the office of Craig Watkins, the Dallas County district attorney, announced that Phillips, 57, was going to join their ranks.
Phillips, though, was not aware that DNA testing was going to prove his innocence, nor was he seeking such tests or pushing for an exoneration. He is the first person exonerated by a prosecutor’s office without doing these things, according to Watkins’s office and the National Registry of Exonerations.

“This is different from other exonerations…in a very important way,” said Samuel R. Gross, editor of the National Registry of Exonerations and a law professor at the University of Michigan. “The man who was exonerated, this wasn’t on his mind. He wasn’t thinking about it, he hadn’t thought about it.”

Instead, the first he heard about it was when someone from the Conviction Integrity Unit contacted him, Gross said. That unit was established by Watkins’s office in 2007 to review and investigate claims of innocence and other old cases.
It seemed inevitable that testing rape kit backlogs would reveal some innocence cases as well as help identify assailants in under-investigated rape cases. Maybe now that Watkins has broken the ice, other DAs will feel more comfortable testing for possible exonerations as well as to identify new suspects in cold cases. Congrats and good luck to Mr. Phillips, for whom it must feel like Christmas in July.


Anonymous said...

DA Watkins has had his issues, but it is very hard not to praise him for his brave and iconoclastic work on exonerations. Hopefully other prosecutors will have the balls to follow his lead.

Not getting my hopes up.

Anonymous said...

The full exoneration report is here:

From what is discussed in the report, it may be difficult to replicate this work outside Dallas County.

Anonymous said...

The Dallas County District Attorney's Office lied to you. They lied to the Public. But they really had no choice.

Before we get all feel-goody about Watkins, let's do the math. Michael Phillips was release from prison 12 years ago. In the eyes of the State of Texas, he is a convict. He is guilty. He's already done his time. Done and over.

Then why would the crime lab perform DNA testing for this case?

In a Dallas Morning News article from June 2012 ("Missed deadline on rape-kit audits renews debate" by Tanya Eiserer), regarding the financial cost to the tax-payer associated with testing the huge backlog of untested rape kits within the Dallas County Crime Lab, chief of physical evidence for the crime lab Dr. Timothy Sliter asked "Would you want to devote money to test those cases when it’s not going to lead to a judicial conclusion?"

Mr. Philips' guilt was already a foregone judicial conclusion, since 1990.

So again, why would the crime lab perform DNA testing for this case? Why waste tax-payer money to perform DNA testing on a rape kit for which the convict has already served his time and been released (and has since given up on clearing his name)?

Because the crime lab is notorious for rampant DNA contamination, cross-contamination, and analyst-contamination.
They're notorious for uploading (illegally) incomplete DNA profiles into CODIS.
They're notorious for failing to report non-compliance to state and federal agencies.
Because the crime lab is in the middle of an audit.

There is no "systematic DNA testing project" by the District Attorney's Conviction Integrity Unit. This is just a facade presented to the public for performing the DNA testing in this case. There are tens-of-thousands of biological samples dating back to 1990 stored at the Dallas County Crime Lab that would be part of this so-called "systematic DNA testing project". At a cost of $300 per kit and the time of a highly paid county employee, it would be irresponsible to the fiduciary duty of the DA's office to pursue such costly testing.

The real reason -- The Dallas County Crime Lab was being audited for past shoddy work, and during the audit...serendipitously discovered Mr. Bank's DNA --not Mr. Phillip's DNA -- within this rape kit. (This is to assume that Mr. Bank's DNA wasn't cross-contaminated with the biological material in the crime lab -- a whole other very real possibility. Mr. Banks, while in prison, denied the rape but the DA's Office considers him guilty anyway.)

This is why the crime lab was performing DNA testing for this case. It's being audited. The crime lab had been sitting on the biological evidence since 1990, but didn't get around to DNA testing until 2011 -- after Mr. Phillips had served his time (and thus allowing Mr. Banks to roam freely, committing more crimes -- assuming he is the actual rapist, that is.)

This is one of the reasons Dallas County has the highest number of exonerations in the U.S. The forensics is atrocious. And the DA usurps control of the crime lab when it serves his purpose.

And this, ladies and gentlemen, is how Dallas County District Attorney Craig Watkins spins a news story away from the incompetency of his crime lab toward self-promotion.

First of its kind.

Of course, you could always ask the DA's Office for more details regarding this so-called "systematic DNA testing."

And count the seconds of the uncomfortable pause before the stuttering and backpeddling begin.

Anonymous said...

09:17 PM said "
This is one of the reasons Dallas County has the highest number of exonerations in the U.S. The forensics is atrocious. And the DA usurps control of the crime lab when it serves his purpose."

Actually, the reason why Dallas has had more exonerations is because they saved evidence that could later be tested for DNA whereas most everywhere else in the country destroyed the evidence after conviction and appeals or even when there was a guilty plea. Houston would be the world's leader in exonerations had they bothered to save evidence. Imagine the thousands railroaded and framed by the likes of Johnny Holmes and Chuck Rosenthal.

Thomas R. Griffith said...

Grits, welcome (back) to America. Hope you enjoyed some R & R.

I'd like to 2nd that - "Congrats and good luck to Mr. Phillips."

12 times $80,000 equals $960,000 plus, plus.

Anyone care to name the DA & ADA of Record, the Arresting Officers, the Detectives, the Defense Team, the Exhibits Clerk? Or, are we satisfied with just knowing the name & color of the falsely arrested & wrongfully convicted & current DA? Thanks.

Anonymous said...

Assuming Craig Watkins knew the law, and knew that the statute of limitations had expired for pressing criminal charges against the real rapist, what was Craig Watkins hoping to achieve (besides wasting money on seemingly random DNA testing)?

And really, the DA's Office can just declare Mr. Banks guilty...without a confession, without a trial, without confrontation of his accussors?
Go back to laws school, Mr. Prosecutor. You're not part of a star chamber.

Anonymous said...

10:42 -

It is my understanding that Texas law specifically allows that when there is a DNA match to a convicted offender in an old rape case that is past the statute of limitations, there will be a note added to the convicted offender's criminal history file. I would suppose that the convicted offender could appeal this administrative action if he wanted. Or he could certainly sue, which would trigger a court review.

Anonymous said...

"Dallas man exonerated via testing rape kit backlog"

A small point, perhaps, but from the reports that are out there on this case, the testing had nothing to do with processing backlogged rape kits. The case was fully adjudicated, and would not have been worked if the concern was just eliminating a testing backlog. Going forward, cases like these will not be identified in standard projects to reduce testing backlogs. It will take a different sort of effort with a different focus.

Anonymous said...

Something to think about.

The topic regarding - Backlogged Rape Test Kits either in Houston, Dallas or, Bumfuck Egypt, should have women in general pissed off enough to protest. Seems like Wendy Davis would take a stand for women since she has the floor for the time being. At least she learned how to say 'Texas' instead of 'Taxess' and showed an interest for the 'chidren'.

To this day, no one has bothered to voice any opposition to simply testing & forgetting. Sad, Sad, Sad.

No one has. If anyone can disprove it, go for it,(blogging doesn't count) until then, the females of Texas are either: too busy working and dealing with their immediate problems or, FBing to find extra time to protest about rapists getting away with raping. When there is a rash of men getting raped by women, I'll bet not one single Test Kit get's shelved. Rape on you rapist, no one is going to test shit any time soon unless they are forced to. and that ain't happning. Spell and grammar check that and you get a brownie point.

Anonymous said...

Only 7 DNA tests were performed.

606 sexual assault kits remained untested.


Anonymous said...

To 8:40 PM -

You appear to have inadvertently missed some important details of the study design and results.

You may want to re-read the exoneration report for this case (at a bit more closely.

Page 6:
"In operation, that has meant that we considered cases in which (1) SWIFS had biological samples from a rape investigation in Dallas County that were not previously tested for DNA; (2) the biological samples tested positive for the presence of sperm or seminal fluid or both; (3) a defendant was arrested for the crime; (4) the defendant was convicted of rape or any related offense; (5) the identity of the assailant was in question in the court proceedings; and (5) the biological evidence at SWIFS is an “unmixed sample.”"

Page 9-10
"In 181 of the 787 reported rapes with testable rape kits a defendant was identified and arrested, a clearance rate of 23%.

In 94 of the 181 cases with arrested defendants, 52%, a criminal conviction was obtained. Twenty-eight of the 94 convicted defendants went to trial, and 66 pled guilty. (Of the 87 defendants who were not convicted, five were acquitted at trial; in other 83 cases charges were dismissed at one stage or another of the proceedings.)

The 94 Dallas County rapes with convicted defendants and testable biological evidence were reviewed individually to determine if they were eligible for DNA testing under the project. Ultimately 11 cases were selected for DNA testing, 12% of those screened. The remaining 83 cases were rejected for one of the following reasons, which we have already discussed:

One case was rejected because we had too little information to evaluate it.

10 cases – 11% of the total of 94 – were rejected because the perpetrator was believed to be a serial rapist.

12 cases, 13%, were rejected for lack of “unmixed biological samples.”

60 cases, 64% of the 94 cases screened, were rejected because we determined that the attacker’s “identity was not in question” in the prosecution.

In 7 of the 11 cases identified as suitable for DNA testing, the defendant had pled guilty; in 4 the case went to trial. In four of these 11 cases (two guilty pleas and two trials) DNA testing had already been done, and in each it confirmed the guilt of the defendant. That left 7 cases in which new DNA tests were conducted.

In one case no male DNA was found in the biological sample. In four cases (three guilty pleas and one trial) the testing confirmed the defendant’s guilt. In one case a male DNA profile was obtained but we could not determine whether it came from the defendant because we have no comparison sample or DNA profile and the defendant is not available to provide one. And in one case the DNA testing exonerated the defendant – the case of Michael Phillips."

It seems pretty obvious that there was a systematic screening process, and that the process was designed to identify cases where new DNA testing could possible change the judicial conclusion.

It should be noted that the criteria used to screen these cases are essentially the same criteria used by innocence projects to screen cases for acceptance, which isn't surprising since two of the lawyers involved with the case review have experience with innocence projects.

Anonymous said...

anon 6:51-

Nope. Read all that. But thanks for the cut-n-paste.

It seems like the DA's "systematic DNA process" purposely left out the unresolved 606 sexual assault kits still in possession by the State.

Moreover, the CIU has been around since Watkin's took office in 2007. And if the CIU was worth a crap, it would have undertook this "systematic DNA testing" 7 years ago and without the input or push of Professor Samuel Gross of the University of Michigan Law School and his esteemed colleagues. If Mr. Gross hadn't presented the idea, this testing would not have occurred. Never.

Not that this "systematic DNA testing" was occurring at a great pace. As was gloriously mentioned within the report, the unashamed scientists at SWIFS were never gonna let some outsiders into their crime lab to point out their inadequacies, to point out the rampant DNA contaminations. Quote: "Dr. Sliter rejected the idea of organizing the work as short-term push and attempting to obtain external funding to hire additional employees to do the searches and tests on an expedited schedule. Instead, the work was performed by regular staff using the laboratory’s standard methodologies for processing cold cases and post-conviction testing requests..."

Did you get that? His strategy was to go as slow as possible and forgo any potential grant money that could possibly facilitate the search and testing. God forbid that we find more wrongfully convicted in a timely fashion.

"...a project that has required a great deal of patience, trial and error..."

For Christ's sake, it's only DNA testing - a half-day of prep-time and another half-day to scrutinize the data. This is a daily routine. If Watkins was presenting a criminal trial next week, you know the crime lab could squeeze out the data for the DA.

For the math majors out there, the project was started in 2009 -- so it only took 5 years to get 7 DNA test done. Whoopee.

Let's not pretend that this was a proactive, "systematic DNA testing" project lead by Watkins and Dallas Crime Lab. Where are the other 606 DNA tests? Why wasn't this done sooner?

Anonymous said...

9:09PM -

Yes, you definitely need to re-read the report.