Myths and dilemmas surrounding DNA testing backlogs

The Fair Punishment Project has a good roundup in its In Justice Today Texas newsletter of stories on Texas' efforts to reduce the so-called "rape kit backlog," and I was pleased to see among them this item identifying "5 myths" surrounding the controversy over un-tested rape kits from the co-founders of People for Enforcement of Rape Laws.

I agree with most of that commentary, but there's one other "myth" they didn't cover: That every un-tested rape kit has the potential to identify a criminal. Many times, the reason rape kits go un-tested is that the identity of the alleged assailant isn't the issue. Rather, the issue is whether a sexual act was consensual, and the existence of DNA doesn't prove culpability.

For more context, check out the lab director from the Los Angeles Sheriff's Office discussing the cost-benefit issues surrounding testing of rape-kit backlogs at a National Institute of Justice event in 2010. They spent $1.7 million to analyze their rape-kit backlog to find just two viable suspects.

In Houston, by contrast, they found many more un-solved cases when old rape kits were tested. IMO that's because HPD was doing a much poorer job of investigating sexual assaults than the Los Angeles Sheriff. This speaks to one of the main critiques of the authors of the "5 myths" article:

The failure of law enforcement to properly investigate rape is not limited to testing rape kits. Too often, investigations are closed before a kit is even taken. Investigating and solving a rape case takes actual police work. Detectives must find and interview witnesses, interview the victim, track down evidence, corroborate the account of events with both the victim and witnesses, and compare the case details to unsolved cases to try to detect patterns. Yet instead of doing this necessary legwork, police unfound, downgrade, and “disappear” rape cases. 

Take the Detroit police department, which, “under nine chiefs, both male and female, sustained a culture in which officers routinely neglected rape complaints or actively discouraged victims from seeking redress, all without fear of consequence,” according to Detroit Free Press columnist Nancy Kaffer. The department, like others, has a long history of underreporting rape. In 2001, the department admitted that the statistics it reported to the FBI for rape arrests — which were at least twice the national average throughout the 1990s — were seriously flawed.

That's a fair analysis, but it doesn't apply to every agency. The examples of HPD and the LA County Sheriff illuminate how widely that can vary from department to department. Not every agency suffers from a culture of neglected rape complaints, but when it happens, it compounds tragedy in bunches.

At one point, the National Institute of Justice had issued a grant to Houston PD (also Detroit) to develop protocols regarding when it was and wasn't appropriate to perform DNA testing on rape kits. There is a detailed website illuminating all sorts of interesting aspects about this project, but Grits has still never seen any final recommendation regarding exactly under what circumstances law enforcement should choose not to have a rape kit processed at the crime lab. (If I've just missed them, please, somebody point them out; once my job ended as the Innocence Project of Texas policy director, I stopped tracking these topics closely.)

Grits mentions this not to discourage testing of rape kits, nor to make excuses for those in the past who allowed rape cases to languish un-investigated. But because there are, in fact, viable circumstances under which the expense of rape-kit testing isn't justified - particularly in cases where the principle issue is consent, not identity - until such protocols are promulgated, law enforcement will continue to make decisions about whether to test rape kits on a case by case basis.

Better to just create a set of reasonable best practices then pressure everyone to follow them, than to insist that every rape kit be tested and backlogs always = zero. Then, police will know what's expected of them and the public will better understand why an un-tested rape kit isn't per se evidence of police negligence or incompetence.

Another question raised by such test-or-no-test protocols: Might there be rape victims who are unnecessarily subjected to invasive evidence-gathering procedures who needn't be? It's not fun to go through that (I'm told), and in cases where it's clear from the get-go it's not necessary, maybe a lot of these women needn't go through the experience in the first place. Stranger rape is pretty rare, after all. If police were trained up front when rape-kit evidence might be pertinent to an investigation and when it's unnecessary, maybe you could chip away at the number of un-tested kits from that direction.

Finally, having mused over this recent spate of reporting on the topic, Grits should point out a related, recent article from the Washington Post that raises the fraught and difficult question looming over all these rape-kit backlog debates: What happens when the results come back? Nothing simple, is the short answer.  Houston's approach seems as reasonable as any:

Houston tried a different model. A hotline was set up and publicized, so that any victim who wanted information about their old kit could ask for it. Then, police and prosecutors combed through the CODIS hits and decided which cases actually had a chance of moving forward in the criminal justice system. Victims were notified only if their cases seemed “actionable.” “What’s at stake is the well-being and mental health of sexual assault victims,” says Noël Busch-Armendariz, a researcher who was involved in Houston’s process. “You never know where people are in their lives and what support systems they have or don’t have ready for them.”

Louisville, by contrast, notified every woman on the list her kit would be tested, even if there turned out to be no one else's DNA in the sample. "In Virginia," according to the Post, "this dilemma would ultimately pit police, prosecutors, advocates and lawmakers against one another, making the situation far more complicated than they ever intended. Everyone wanted to do the right thing for victims; there was just no way to know what that was."

Ironically, for a situation in which everyone wants to "do the right thing for victims," often victims opinions in the process are either unsolicited or roundly ignored.

These are incredibly difficult questions which won't be resolved anytime soon. The USDOJ under the Trump Administration has issued a recommendation that every rape kit associated with a criminal complaint be tested, reported the Post, but law enforcement agencies on tight budgets likely will balk at truly unnecessary testing, especially if it becomes required in volume.

Your correspondent doesn't have solutions to these issues, but there's a growing urgency to confront them.

On forensic oversight, backlogs, and prospects for revenge-porn statute's constitutionality

As I head out of town again for a couple of days, here are a few items which merit Grits readers attention:

• Anthony Graves' appointment to the Houston crime lab board has been making headlines. Perhaps just as significant, his attorney Nicole Casaraz who secured his exoneration will replace Scott Hochberg as the board chair. That's an unusual profile for a crime lab, particularly one whose management was recently made independent of the police department. Congrats to both of them!
• The 5th Circuit Court of Appeals reinstated a lawsuit by two former Houston crime lab employees (from when it was run by the police department) who alleged that "Harris County prosecutors retaliated against them after they exposed problems with the city's breath-alcohol testing vans, or 'BAT vans.'"
• In San Antonio, somehow I'd missed news this spring that hundreds of DWI blood tests were mishandled in a contracted lab and the new DA couldn't use the evidence in cases. Oops.
• Dallas is beefing up staff in its sex crimes unit in anticipation of performing DNA testing on more than 4,000 backlogged DNA tests.
• Texas' much-lauded revenge porn statute appears on a collision course with recent First Amendment jurisprudence, as Mark Bennett tried to explain to legislators during session. For my part, I wish the debate weren't as facile as it has become, where valid legal criticisms are dismissed as detritus and the Lege just passes laws which poll well but cannot withstand constitutional scrutiny. We've done this a bunch in Texas now, with online solicitation, improper photography ... now we appear poised to go through the same rigmarole on revenge porn. Grits has nothing good to say about anyone who would engage in this activity, but acknowledging the legal complexity of the situation does not condone the behavior. In fact, it's how serious people go about actually solving a problem. We'll see how the courts receive the new statute; I'm not sanguine it has much chance of withstanding scrutiny, good intentions and high-toned rhetoric notwithstanding.

Testing Houston PDs rape kit backlog: Rest of state should follow suit

The Texas Observer's Emily DePrang last month had a thoughtful, lengthy article (Oct. 8) about Houston PD's effort to test thousands of backlogged rape kits and assessing related efforts in other jurisdictions. Here are a few notable excerpts:

In 2011, lawmakers passed a bill by state Sen. Wendy Davis requiring every law enforcement agency to tally and report its untested sexual assault kits. The bill also mandated that law enforcement agencies submit kits to a crime lab within 30 days. At the time, the Department of Public Safety (DPS) estimated up to 20,000 kits like Pearl’s might be warehoused all over the state. Now, that number is looking low. As of July, only 146 of Texas’s 2,647 law enforcement agencies had reported their totals, but the statewide count of untested rape kits was already nearly 19,000. 

That includes the major cities—Dallas (4,144), San Antonio (2,077), Fort Worth (1,018) and Austin (407). Houston alone contributed almost one-third of the outstanding kits. But seven of the 20 biggest cities in Texas, including Arlington, Laredo, Plano, Irving and Brownsville, have yet to report. Their tallies—along with those of the 2,500 other missing agencies of assorted sizes—will likely boost the state’s total beyond the estimated 20,000. ...

DNA testing in many places continued to outstrip growth in crime-lab capacity. Backlogs, once cleared, would quickly form again. In 2009, a CBS News investigation found that rape kits in Alabama and Illinois took, on average, six months to process. In Missouri, the wait was almost a year. 

These kits—the ones submitted by law enforcement to crime labs for analysis but not returned for more than 30 days—are what the National Institute of Justice, the research arm of the Department of Justice, considers “backlogged.”

But that’s not what happened in Texas.

Rather, most of the 19,000 kits reported (so far) never saw the inside of a lab because a sexual assault investigator made the decision not to have them tested. Victims who endure DNA collection may understandably assume it will be analyzed as part of the investigative process, but until recently, law enforcement officers could choose whether to test a kit. Often, they chose not to.

This was by no means limited to Texas. A 2011 survey by the National Institute of Justice found that, on average, nearly one in five recent unsolved rape cases nationally contain forensic evidence for which police never requested analysis.

And here's a summation of the results from Houston's testing:

All of HPD’s old rape kits have now been tested and, as of mid-August, almost 2,500 eligible DNA samples had been uploaded to CODIS. Staggeringly, 933 of those—more than one-third—were “hits,” meaning they matched a known offender already in the database.

That doesn’t mean these were all serial rapists. Authorities are required to collect DNA samples from all felons, meaning many people have CODIS offender profiles because of drug convictions or other nonviolent crimes. Also, Texas and 29 other states take DNA from anyone formally charged with—or, in some cases, merely arrested for—certain felonies, so not everyone in CODIS has been convicted of a crime. Finally, a rape kit going untested doesn’t mean the rapist went free. If police declined to test the kit because the attacker’s identity was known, a CODIS hit may just confirm they got the right guy. As of June, 83 of the CODIS hits in Houston were such arrest confirmations. HPD has also stated that none of the results suggests a wrongful conviction. 

Another 34 kits had what are called case-to-case matches. That means the DNA found in the rape kit matched DNA already uploaded from evidence taken in a different unsolved crime—another rape kit, perhaps, or blood from a break-in—but for which there’s no suspect yet. If the offender is later convicted of any felony, his DNA will link him to the previous crimes.

That said, Houston’s recently tested kits have certainly delivered forensic evidence that could have been used sooner, as demonstrated by the 20 new arrests. Some hits have resulted in new charges but not a new arrest because the suspect was already incarcerated for a different crime

Roundup: Of atonement, prison bankers, pot and imaginary terrorists

Lots going on and I won't have time to write about all of it. Here are several items clogging my web browser that merit Grits readers attention, even if they may not make it into independent posts:

Dallas PD will move to citations for pot possession
After revamping its systems, Dallas PD will attempt for the second time to exercise authority granted them by the Legislature in 2007 to issue citations instead of arrest people for marijuana possession and a handful of other Class B misdemeanors, reported the Dallas News. The main reason is to keep police officers on the street, saving: "each officer the two to four hours squandered in driving a nonviolent misdemeanor suspect to the county jail and going through the booking rigamarole." At a House County Affairs Committee hearing in May, legislators discussed simply reducing penalties for pot possession and driving with an invalid license (DWLI) because so few departments were using this authority and local jails were still too full of petty pot offenders. MORE: From Unfair Park.

Austin to eliminate rape kit backlog
Thanks to extra staff and funding, Austin PD plans to eliminate its rape-kit backlog - which is much smaller than was Houston's - within 12 months, the chief announced.

Dallas DA's race goes negative, gets personal
The Dallas DA's race is getting ugly and personal. This is the kind of election that both makes me miss performing opposition research in campaigns and simultaneously glad to stay miles away from the process. Watkins should, and may still, win this election going away. The only things keeping it close are inexplicable, self-generated gaffes. His opponent Susan Hawk may have strayed over the line implying he was drunk at a debate. There are various means for launching an attack and that wasn't the smartest way to stage that one. But Watkins doesn't look much better. He seems bent on providing fodder for critics instead of creating an alternative narrative voters can latch onto. Such races make me miss oppo research because this is the sort of race where well-crafted negative messages could make a big difference. (Neither side seems to have that sort of professional help, judging from the predominant messages in the campaign.) It makes me glad to stay away because the whole thing is becoming highly personal and will result in grudges held by the principals for many years to come. I don't need that kind of pointless, narcissistic drama in my life.

Bexar considers expanding public defender office
In San Antonio, Bexar County officials are mulling a full-blown public defender office, expanding on the appellate and mental health public defenders operating there now. This article by Michelle Cassady discussed obstacles to creating a public defender steps the county is taking to overcome them. The reason for the move: economics. "Defendants in 64 percent of all criminal cases filed in the county last year declared themselves indigent — too poor to afford representation — and were appointed an attorney, according to county records."

Do criminal laws rob offenders of atonement?
Hanna Liebman Dershowitz, a former staffer for state Sen. Rodney Ellis and now an attorney with the Jewish Council for public affairs, had an article in the Jewish Daily Forward (Oct. 6) which opened, "We are emerging from the Day of Repentance — a time for contrition for misdeeds, focusing on self-improvement and making a fresh start. But what about people who don’t have the luxury of wiping their slates clean, even for minor transgressions? Are our laws and policies robbing millions of citizens of their own opportunities to turn toward good, to achieve the possibility of teshuvah, atonement, that we claim for ourselves each year?"

ISIS still not infiltrating the Texas border
Politicians are going to keep repeating this garbage so it's worth highlighting the factual counter whenever it's offered: The "claim that Islamic State fighters were apprehended in Texas" was “categorically false” according to the Department of Homeland Security and “not supported by any credible intelligence.” The allegations "gained widespread attention on Wednesday, especially on conservative news websites." And remarkably, "The National Republican Congressional Committee, for example, is running an ad in Arizona that claims terrorists are entering the country through the state’s southern border." Rick Perry put similar, garbage allegations on TV in 2006. It was a lie then, just like now, but that didn't make the political message any less successful. The reason politicians just make stuff up and stick to their guns in the face of all evidence is that, as often as not, it works.

'Meet the prison bankers who profit from the inmates'
The subhed is the title of a recent Time magazine article focused on the little analyzed topic of moving inmates' money.

Police and private surveillance
Every time one turns around there are new stories out that make you question the vast scope of mass public surveillance, including these developments regarding private surveillance of public spaces.

19 sex-assault indictments so far from testing Houston rape-kit backlog

The Houston Chronicle's Mike Morris brought us an update (Oct. 6) on the vetting of the Houston PD's rape kit testing backlog. The story opened:

Houston's effort to test a nearly three-decade backlog of sexual assault kits has resulted in new charges filed against 19 people, city officials said Monday, including 10 suspects identified and arrested for the first time.

One of the new suspects has been charged in connection with two assaults; another remains at large, Houston Police Department spokesman John Cannon said. The other eight suspects, he said, already are in jail on other charges and now face sexual assault charges.

City Council in 2013 paid $4.4 million to two private labs to test DNA samples from 9,750 cases, including a backlog of 6,600 rape kits dating to 1987. The labs' work is nearly done, and staff from HPD and the city's forensics lab now are entering all eligible genetic information into the Combined DNA Index System, or CODIS, a national law enforcement database.

So far, DNA from 1,031 of those cases has produced "hits," meaning a suspect's DNA already was in the database in connection with an earlier crime. In the vast majority of cases reviewed to date, officials said the suspects are known to police, having been arrested, convicted or detained at some point.

HPD Assistant Chief Matt Slinkard said the reviews have confirmed police arrested the right person in 58 sexual assault cases, but officials did not release details Monday about these cases or the 19 suspects hit with new charges. The Houston Chronicle reported in April the testing had identified at least one serial rapist already in jail on other charges.

Some have criticized this process, often anonymously, as wasteful given the bang for the buck. For those critics: Explain in the comments how many sexual assault cases would be enough to justify the expense?

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.

Houston PD finds thousands more untested rape kits

The Houston Police Department not only has thousands of untested rape kits stored at the crime lab, until recently nobody could even accurately guesstimate how many there were, with about 3,000 more found as a result of research funded by a federal grant, reports the Houston Chronicle ("Crime lab finds another 3,000-plus untested rape kits," Aug, 10):

For years, the Houston Police Department has conceded about 4,000 rape kits — all untested — are stored in a property room freezer, but a recent inventory shows there are potentially thousands more containing never-examined evidence from sexual assault cases.

"I think that's a disgrace and a disservice to women and the victims," said Johnny Mata, an activist with the Greater Houston Coalition for Justice. "What's happening right now is not acceptable"

According to department officials and figures compiled for a grant awarded to HPD from the National Institute of Justice this year, more than 3,000 kits stored in air-conditioned sections of the property room may not have been tested in addition to the 4,220 untested kits in a property room freezer. The estimate of additional kits is based on a random sampling.

The backlog is slowly growing every year: "The HPD crime lab, which receives about 1,000 DNA requests for testing per year, is testing about 30 to 40 cases per month in its own facility. The lab also is sending 75 sexual assault kits for testing to three laboratories every 60 days, Rios said." Add it up, that means HPD isn't reducing its backlog but instead it's organically growing somewhere at the rate of 130 kits per year. And that was before somebody found 3,000 rape kits they didn't know existed.

HPD had resisted the analysis of why its rape kit backlog grew so large, but if that analysis hadn't been done they'd have never identified the additional rape kits, so in retrospect it's hard to argue with the research. Former chief and current city councilmember said grant money should be spent on testing kits instead of studying reasons for the backlog, but the reason for the study is that law enforcement insists some of the kits don't "need" to be tested when, for example, they already have other evidence sufficient to secure a conviction.

I'm worried, though, that crime lab director Irma Rios appears to be resisting the idea of an independent regional crime lab. At the end of the story, she urged the city council to fund her crime lab independently. Unspoken but clear as a bell was the message, "I don't want HPD's crime lab merged with a regional county entity." Reported the Chron's Anita Hassan:

Rios said she hopes the Harris County Institute of Forensic Science, formerly the medical examiner's office, will be able to help reduce the backlog.

On Tuesday, Harris County Commissioners Court approved a revised pilot program that would allow the institute to process up to 150 DNA cases as well as 435 DWI cases requiring blood-alcohol testing in its first year. The program awaits approval by city officials.

The recent grant money of about $1 million, Rios said, will be used to study factors that have prevented the crime lab from testing thousands of rape kits. A previous $1.1 million federal grant awarded to HPD last year will be used to complete processing on 2,300 untested kits in the property room freezeer

Rios, however, worries that grants may dry up.

"What I prefer is that (the crime lab) is city-funded permanently," Rios said. "It is a stable form of budgeting."

The string of seemingly incompetent episodes at the HPD crime lab just continues to grow like a bad sitcom, even years after the initial problems were discovered. Certainly C.O. Bradford - who was chief when the crime lab scandal broke - has little credibility arguing grant money shouldn't be spent on investigating failures at the crime lab. And Rios' comments let me know that there is institutional resistance from HPD over the whole regional crime lab idea. These are the same folks who've been telling us for years, "Move along, nothing to see here," and now it turns out they don't even know how many rape kits were or weren't tested? Yikes!

See related Grits posts: 

• 'The DNA's over there, right next to the jelly: The problems with the preservation of evidence in Texas'
• Senate bills encourage retention, testing of old DNA evidence
• DNA could solve burlgaries if crime labs were bigger, better, more trustworthy 
• Backlog of DNA cases complicates Houston crime lab's bias problems
• Large backlogs for DPS forensics testing
• Unanalyzed evidence held by law enforcement agencies
• Test possible innocence cases among Bexar DNA cache
• The coming fight over independent crime labs

An argument for testing rape kit backlogs

Reports KHOU-TV out of Houston, "An inmate serving time in the Texas Department of Criminal Justice for burglary and injury to a child was linked to an unsolved sexual assault of a woman in 2008, according to the Harris County District Attorney’s office." The rape kit wasn't immediately processed following the rape in 2008 because police had no suspect to try to match it to, but when they ran it through CODIS three years later they got a hit.

The state estimates that some 22,000 untested rape kits are sitting around in evidence rooms in just the Houston, Dallas and San Antonio Police Departments alone. This is the second time in a month that Houston police have solved a cold rape case by testing rape kits that have been languishing in storage for years.

See related Grits posts:

• Cold case solved in Houston by testing DNA from rape kit backlog
• Bills encourage testing, proper retention of rape kits and other biological evidence
• The DNA's over there, right next to the jelly
• Bill would probe rate kit backlogs, encourage testing
• Senate bills encourage retention, testing of old rape kits, DNA evidence
• Houston gets DOJ grant to analyze why rape kits went untested
• Backlog of DNA cases complicates Houston crime lab's bias problems
• Large backlogs for DPS forensics testing
• Unanalyzed evidence held by law enforcement agencies
• Test possible innocence cases among Bexar DNA cache
• Reducing forensic backlogs a source of rare agreement at hearing
• Security theater vs. crime fighting reality in an era of tight budgets
• Pilot collaboration on DNA testing could presage regional Harris County crime lab

Cold case solved in Houston via testing rape kit from HPD backlog

The Houston Chronicle has a story today ("Evidence in teen's 1995 rape leads to new charges," July 13) about a cold rape kase solved by testing a previously untested rape kit among the sizable backlog possessed by the county, making may people wonder if other rapists may have avoided prosecution because of the backlog, which stretches back literally for decades. The article by Anita Hassan opens:

In August 1995, a 16-year-old Houston girl was awakened in the middle of the night by a strange man standing in her bedroom doorway.

He walked over and put a pillow over her head. As she wept, he raped her, ordering her not to make a sound or he would kill her. Then he stole some money and left.

After calling police, the teen underwent a sexual assault examination. That rape kit evidence was placed in the Houston Police Department property room — and that's where it sat, untested for 12 years.

Last month, after a Houston Police Department investigator re-examined the case and requested the evidence be tested, the identity of the alleged rapist was uncovered: Roland Ali Westbrooks, 36, convicted and sentenced in 1997 for raping another Houston woman.

Westbrooks, serving a 28-year sentence in a Texas prison after pleading guilty to the 1997 rape charge, was charged Monday with aggravated sexual assault of the 16-year-old, according to court records.

This is the first such case to come to light since the Houston Chronicle reported last month that almost 4,000 sexual assault kits — some dating to the 1990s — sit in an HPD property room freezer awaiting testing.

HPD crime lab officials have said the slow process in testing the evidence is due to a lack of resources. In the past, HPD officials have declined to comment how the evidence is being processed by their crime lab personnel in cases that are considered to be active investigations.

State Sen. John Whitmire, D-Houston, on Tuesday said the Westbrooks case is an example of how the backlog of untested evidence by HPD's crime lab can and has delayed justice for rape victims.

"What if they (HPD) had done their proper test in 1995?" said Whitmire, who has spoken on the issues concerning untested sexual assault evidence for years. "Maybe the 1995 (case) would have been solved in a timely manner and the 1997 (case) would have never occurred."

After HPD submitted the sample for testing to the Department of Public Safety, it took nine months for a DPS crime lab to get around to testing it. That really is too long and speaks to a general lack of capacity and an overwhelmed crime lab system.

Sen. Whitmire said at the end of the article that "There may be thousands of other scenarios like this one," but that may be overstating things. According to testimony give to support a bill last session by state Sen. Wendy Davis that encourages testing rape kit backlogs, when Tarrant County tested their entire backlog they identified five serial rapists by matching the results to CODIS. All the others were inconclusive or didn't  result in a match. According to the Texas Observer, "the state estimates some 22,000 untested kits are collecting dust on shelves in Dallas, Houston and San Antonio law enforcement offices alone." My own belief is that a thorough vetting of those cases would reveal additional innocent people falsely convicted as well as guilty people never identified.

There are several separate but related dynamics at play right now concerning untested rape kits in Texas. For starters, Sen. Royce West's SB 1616 will require new rules to be established at DPS about biological evidence retention, storage, etc., that will apply to counties with populations of 100,000 or greater beginning January 2013. Simultaneously, Sen. Wendy Davis' SB 1636 encourages DNA testing of backlogged rape kits and requires law enforcement agencies by October 15 to "submit to DPS a list of the agency's active criminal cases for which sexual assault evidence has not yet been submitted for laboratory analysis." Meanwhile, in Houston their much berated crime lab has received a grant to analyze their rape kit backlog to determine why those particular cases were never tested and to recommend criteria for how to determine whether testing is needed. In just a couple of years, we'll know a lot more about rape kit backlogs and will have new rules in place governing biological evidence preservation in larger jurisdictions.

So we're in an incredibly dynamic period in Texas regarding retention and testing of biological evidence, with a lot of folks presently thinking about the problem. But most suggested solutions require money nobody immediately has to hand. This cold case solved in Houston is a fine thing, but for that outcome to be replicated, testing old rape kits will need to become a greater priority that supersedes competing demands. At least until 2013 when the Lege meets again and likely not even then, state general fund revenue won't be available to tackle rape kit backlogs, leaving grants from the Governor or the feds, or else local expenditures, as the only way to address the situation in the near term.

See related Grits posts:

• Bills encourage testing, proper retention of rape kits and other biological evidence
• The DNA's over there, right next to the jelly
• Bill would probe rate kit backlogs, encourage testing
• Senate bills encourage retention, testing of old rape kits, DNA evidence
• Houston gets DOJ grant to analyze why rape kits went untested
• Backlog of DNA cases complicates Houston crime lab's bias problems
• Large backlogs for DPS forensics testing
• Unanalyzed evidence held by law enforcement agencies
• Test possible innocence cases among Bexar DNA cache
• Reducing forensic backlogs a source of rare agreement at hearing
• Security theater vs. crime fighting reality in an era of tight budgets
• Pilot collaboration on DNA testing could presage regional Harris County crime lab

Pilot collaboration on DNA testing could presage regional Harris County crime lab

The Harris County Commissioners Court is throwing the City of Houston a lifeline when it comes to processing backlogged rape kits, proposing a pilot program that could end up having such evidence tested at a county-run crime lab. Reports the Houston Chronicle ("Harris County lab could help relieve HPD crime lab," June 21):

Harris County Commissioner Steve Radack said he would like city officials to move quicker on developing a regional crime lab and treat DNA testing as a priority. 

"I think it's time for the city to take its head out of its holster and understand the horrible problem that is present in the city and for that matter in the region when it comes to having the ability to quickly process evidence such as rape kits that, at this time, the city at times takes years to process," he said. "Victims of crimes deserve more than the city is willing to offer."

Voters already approved bonds to construct a new lab, reports the Chronicle: "In 2007, Harris County voters approved $80 million in bond funds for the building of a new forensics facility, allowing officials to begin developing plans to expand the institute, formerly the medical examiner's office." However, the county anticipates having sufficient facilities by next year to handle all of HPD's DNA testing. Until then, the pilot would start small, but the aim would be consolidating DNA testing in the Harris County lab down the line:

Harris County officials are forging ahead with plans for a regional crime laboratory beginning with a pilot program that would allow their lab to take on some of the Houston Police Department's DNA testing.

Under the proposed pilot program, which is set to go for approval before Commissioner's Court on Tuesday morning, the Harris County Institute of Forensic Sciences would receive, process and report on HPD sexual assault cases requiring DNA testing. The caseload would be limited to 25 cases for every two months of the program's duration.

Unlike the HPD crime lab, which has thousands of sexual assault cases awaiting testing, the county lab has no backlog, according to officials. If the program succeeds, it could spur steps to allow the county to take on all of HPD's DNA testing needs.

"The integration of the city's DNA caseload with ours will be the first step, a first building block for future incremental expansion," the institute's Chief Medical Examiner Dr. Luis Sanchez said in a prepared statement.

The HPD crime lab has been so dysfunctional for so long, this is surely a good, if minimalist first step and I hope the city goes along with it. Whether bureaucratic turf fights or feuds over funding keep a full merger from eventually happening is anybody's guess, but particularly given the City of Houston's current budget crisis, it seems unlikely HPD will solve the problem on its own without such regional collaboration.

See related Grits posts:

• Houston gets DOJ grant to analyze why rape kits went untested
• Houston crime lab only reported prosecution friendly evidence
• Test possible innocence cases among Bexar DNA cache
• Crime lab workers suffer from "team spirit" mentality
• Reducing forensic backlogs a source of rare agreement at hearing
• Security theater vs. crime fighting reality in an era of tight budgets
• Chron: Cops shouldn't run Houston crime lab
• Make crime labs independent from law enforcement
• Texas' latest DNA exoneration implicates Houston crime lab
• More falsified results from Houston crime lab
• Keystone Kops at the crime lab
• CSI-Houston would be dark comedy
• Forensic backlogs force tough choices
• The coming fight over independent crime labs
• Backlog of DNA cases complicates Houston crime labs bias problems
• DNA could solve burglaries if crime labs were bigger, better, more trustworthy

Bills encourage testing, proper retention of rape kits and other biological evidence

I noticed a couple of recent stories about SB 1636 by Sen.Wendy Davis requiring data collection and reporting on untested rape kits and testing as many as possible, resources permitting. (See here and here.) Another bill, SB 1616 by Sen. Royce West, would create new standards for preservation of biological evidence via DPS rules. Both passed during the regular legislative session and have been sent to the Governor. Between the two bills and ongoing federally funded research on rape kit backlogs in Houston, perhaps over time fewer rape kits and other biological evidence will be lost or go untested. Readers will recall that the main reason so many DNA exonerations have come out of Dallas is that they were one of the few jurisdictions to actually keep old DNA evidence.

Speaking of which, I also noticed this recent video from the Tyler Telegraph of the Smith County Sheriff's Office evidence room, where toward the end we see stacks of unrefrigerated rape kits and DNA samples kept in a shabby looking storage room. One imagines (or at least hopes) they may need to upgrade their methods of storing biological evidence once new research and rulemaking can definitively establish best practices on the subject.

See related Grits posts:

• The DNA's over there, right next to the jelly
• Bill would probe rate kit backlogs, encourage testing
• Senate bills encourage retention, testing of old rape kits, DNA evidence
• Houston gets DOJ grant to analyze why rape kits went untested
• Test possible innocence cases among Bexar DNA cache
• Reducing forensic backlogs a source of rare agreement at hearing
• Security theater vs. crime fighting reality in an era of tight budgets

Bill would probe rape kit backlogs, encourage testing

We should have a lot more information about backlogs of untested rape kits at Texas police departments this fall thanks to a bill by Sen. Wendy Davis that passed the Lege this week and is headed to the Governor. Reports Alexa Garcia-Ditta at the Texas Observer:

Almost immediately after a woman is raped, she must endure the invasive and often humiliating process through which evidence is collected. In most cases, an investigator swabs the inside of her vagina to collect DNA for a rape kit that will help identify her assailant. Imagine, then, if that evidence was never even examined, and police stash away the untested rape kit on a shelf, never to be thought about again.

Tens of thousands of women in Texas know exactly what that’s like—having undergone the rape kit collection process only to see the evidence go untested. In fact, the state estimates some 22,000 untested kits are collecting dust on shelves in Dallas, Houston and San Antonio law enforcement offices alone.

A bill by Sen. Wendy Davis, D-Fort Worth, aims to address this significant backlog of untested rape kits. Senate Bill 1636, sponsored in the House by Rep. Ruth McClendon, D-San Antonio, passed in both chambers and will soon head to Gov. Rick Perry’s desk.

The bill requires agencies to take inventory of all untested rape kits in their offices by this coming October. If the agencies don’t have the funds or personnel to test the evidence themselves, they must send their kits to the Department of Public Safety for testing. Also, local law enforcement agencies must send new rape kits to crime labs within 30 days of collecting the evidence, and then the crime labs have to test the evidence within three months.

Texas' latest DNA exoneree misidentified by juveniles in photo spread

Texas' latest DNA exoneree is Johnny Pinchback, yet another out of Dallas County. An email from my employers at the Innocence Project of Texas informs us that "We have some exciting information to share.  As many of you may know, the Dallas Co. DA's office has agreed that DNA evidence has proven Johnny Pinchback's innocence. Mr. Pinchback was convicted of aggravated sexual assault in 1984 and spent over 26 years in prison.  His hearing will take place tomorrow morning at the Dallas Criminal District Court #2 at 9AM.  IPOT will also be releasing a press release later this afternoon that I will forward to everyone.  Congratulations to everyone involved in this case!" According to a hot off the presses release from the Dallas DA's office,

A writ hearing on actual innocence has been scheduled for the court to enter findings on the post-conviction DNA test results of Johnny Pinchback.  Prosecutors from the Dallas County District Attorney’s (DA) Conviction Integrity Unit will ask the judge for a favorable finding of actual innocence for Johnny Pinchback.  Mr. Pinchback was granted post-conviction forensic DNA testing under Chapter 64 of the Texas Code of Criminal Procedure.  The hearing will take place on Thursday, May 12, 2011, at 9:00 a.m. CST in Criminal District Court 2, Judge Don Adams presiding.

While Pinchback, now 55, pled not guilty to both crimes, he was convicted by a jury on October 5, 1984, of aggravated sexual assault and sentenced to 99 years in prison. He has served 27 years of that sentence.  Pinchback will be the 26th exoneree overall and the 22nd cleared by DNA in Dallas County since a law (article 64.01) was passed in 2001 allowing convicted inmates to request post-conviction DNA testing.

This is another instance where the Dallas DA's office worked effectively with the Innocence Project of Texas to facilitate testing, a partnership which, despite rocky moments, has been really effective at identifying and processing potentially valid innocence claims. Even really old ones like Mr. Pinchback's who was misidentified by two teenage girls from  photo spreads, according to the Dallas DA's office, as the stranger who attacked and raped them. Nearly three decades later, though, Pinchback's DNA didn't match the rape-kit sample. Makes you wonder how many other innocent people, and guilty ones, might be identified if the tens of thousands of backlogged rape kits were ever finally tested?

This case is almost a poster child for SBs 1616 and 1636 by Senators West and Davis respectively, both of which have passed the Senate and await the judgment of a lately-tempestuous House. And of course it's another great example of the need for eyewitness ID reform (HB 215).  If there was ever an argument for improving eyewitness ID procedures, proper maintenance of biological evidence, and reducing the backlog of untested rape kits, Mr Pinchback's example seems to scream out for such reforms.

MORE: From the Dallas Observer and the Austin Chronicle.

AND MORE: From AP:

an investigation initiated by the Innocence Project of Texas led to tests on body hair cuttings from one of the victims that showed the DNA of another man.


Natalie Roetzel, the chief attorney for the nonprofit organization, said Pinchback got a break because such cuttings don't always yield evidence of DNA and no other material from the rape kit could be located.

"We got very lucky that they were able to find seminal fluid on the cuttings, which is rare," she said.


Roetzel said Pinchback's belief in his innocence was noticed in prison by another man who felt the same about his own Dallas County aggravated sexual assault conviction. That man, Charles Chatman, was exonerated in 2008 and then began lobbying the Innocence Project of Texas on Pinchback's behalf, she said.

"He was persistent in calling me and saying, 'Look at Johnny's case,'" Roetzel said.

She said Chatman has purchased a suit for Pinchback to wear at the hearing.

Roetzel said the excitement Pinchback feels about his pending release is tempered by the notion that he was wrongfully imprisoned for so long.

"He's obviously very excited," she said. "But he's also calm, because he's known for 27 years he's not the man who did these crimes."

Houston gets DOJ grant to analyze why old rape kits went untested

According to this press release, the US Department of Justice has approved grants to fund studies of rape-kit testing backlogs in Houston and Wayne County, Michigan.

The Department of Justice today announced the first research grants awarded to address untested sexual assault kits (SAK), also known as rape kits.  Wayne County, Mich., was awarded $200,000 and the City of Houston, Texas, received $176,000 in Fiscal Year (FY) 2010 funding.  The funding enables researchers and practitioners to collaboratively review and inventory SAKs to determine why they were not sent to the lab.

These two grants, to be administered by the National Institute of Justice (NIJ), are part one of a planned two-phase project to identify underlying reasons why SAK evidence is not tested and to develop practices to improve the criminal justice response to sexual assault.

"These research projects will enable us to better understand what happens to sexual assault evidence, why it might not be analyzed, and what we need to do to fix the problem.  When sexual assault kits go untested, it can result in significant and unnecessary delays in justice for sexual assault victims," said NIJ Director John Laub.

In Phase I, for which this FY 2010 funding was awarded, researchers will team up with representatives from the police department, crime lab, prosecutor's office and community-based victim services organizations in Wayne County and Houston.  The teams will develop a strategy to tackle their problems, with special emphasis on how and when to notify victims when their SAK (which may be years old) is going to be tested.

In Phase II of the project, NIJ seeks to provide additional funds to help the two jurisdictions implement their strategies and evaluate their effectiveness.  NIJ anticipates that these two projects will produce transportable lessons and strategies for other jurisdictions experiencing similar problems.

This is potentially quite significant research with important, practical applications, providing (one hopes) heretofore hidden insight into the types of cases that make up rape-kit backlogs which are now so prevalent in large jurisdictions. Last year the Texas Department of Public Safety received $2.4 million in federal grants to eliminate its backlog of untested rape kits, a project for which Tarrant County also received funds in 2010. As I read this press release, though, Phase One of the newly announced grant will simply catalog and analyze why rape kits weren't tested.

That should provide missing data to help inform recent debates about how jurisdictions like Houston, San Antonio and others should handle large backlogs of untested rape kits. The problem is no-doubt a national one. According to this report from NIJ (pdf) published in February, "A nationwide sample of more than 2,000 agencies found that in 2007, 14 percent of unsolved homicide cases (an estimated 3,975 cases) and 18 percent of unsolved rape cases (an estimated 27,595 cases) contained forensic evidence that was not submitted by law enforcement agencies to a crime laboratory for analysis." The issue is even worse looking beyond violent crimes: "Results also indicated that 23 percent of all unsolved property crimes (an estimated 5,126,719 cases) contained unanalyzed forensic evidence."

Some prosecutors argue there's little need for testing old rape kits. For example, former sex-crimes prosecutor Wendy Murphy writing on February 9 in Women's E-News made the controversial claim that "as many as 90 percent of the kits contain evidence that is, at most, irrelevant." She also said subjecting rape kits to DNA testing may violate victims' privacy (though the violations seems minimal compared to the process of actually taking the sample, which of course requires consent). Calling Murphy's view "completely irresponsible," another former sex-crimes prosecutor, Linda Farstein, fired back in The Daily Beast to argue that the growing backlog contributes to a "cold case crisis," and that testing every rape kit would catch serial rapists who couldn't otherwise be identified. Another rebuttal to Murphy's piece criticized backlogs from the perspective of victims for whom the process of rape examination is invasive and victims shouldn't be subjected to it for no reason. Further, added foundation analyst Sarah Tofte, testing "rape-kit evidence in non-stranger rape cases can identify serial rapists, including serial acquaintance rapists, affirm a victim's version of events, discredit the assailant and exonerate innocent defendants."

Either way, testing everything would be incredibly expensive. According to the February NIJ report, the federal government spent more than $394 million from 2004-10 to reduce rape kit backlogs at state and local crime labs, funding testing for 172,761 rape kits at a gross cost of $2,285 per kit. At that rate, and in the current budget environment given competing priorities, testing every old kit in every jurisdiction while keeping up with ongoing demand may simply not be practical.

In Dallas, District Attorney Craig Watkins famously teamed up with the Innocence Project of Texas to vet old cases where biological evidence was available for testing, usually from a rape kit, a process which cleared innocent people but also resulted in the identification and prosecution of guilty people who thought they'd gotten away with their crimes. Watkins' approach has the benefit of evaluating every case where old DNA evidence exists - both for possible innocence cases and to seek convictions (or at least, in very old cases, to identify the culprit) where the science of the day was inadequate to do so. I've always thought that was a particularly clever model, evaluating each case on the merits but avoiding the extra expense and problems associated with testing everything, every time.

For now, though, such debates remain largely speculative because, in truth, nobody really knows what the results might be if every rape kit were tested, why they weren't tested, or whether the results would be probative if they were. The NIJ report from February cited above found that "More research is needed to completely understand how law enforcement agencies decide to submit or not submit evidence to a laboratory, what proportion of open cases could benefit from forensic testing and how cases should be prioritized for testing." One hopes that's something this research in Houston and Michigan will help determine, filling in many of the blanks for the first time with data instead of supposition. And I'm glad to hear they're funding the project in H-Town, whose long-troubled crime labs could use all the outside help they can get.