Nearly 1,400 DNA cases may have been improperly analyzed by APD lab

FILE - Blood samples being tested at APD's DNA lab. (KXAN File Photo)
FILE - Blood samples being tested at APD's DNA lab. (KXAN File Photo)

AUSTIN (KXAN) — It has been more than two months since the Austin Police Department’s DNA lab was shut down after concerns of improperly trained staff and evidence verification.

The Travis County District Attorney has sent hundreds of letters to defense attorneys to let them know about the problem. The Travis County Commissioners Tuesday approved a $150,000 grant that could be used to help defendants retest DNA samples related to their case.

DNA analysis is an important part of the criminal justice process used in cases such as sexual assaults and murders. The FBI tells labs to follow the federally mandated procedures in calculating cases with DNA mixtures.

Backlog of untested rape kits at Austin Police Headquarters
Backlog of untested rape kits at Austin Police Headquarters

An audit conducted by the Texas Forensic Science Commission determined the lab did not have enough properly trained staff. The report also indicated the lab was not up to date on standard protocols. The audit, which was conducted over a 3-day period in May and June, focused on the lab’s DNA analysis assessment and a review of the lab’s forensic biology operations.

Since 2010, the lab had been using a testing standard that is “neither scientifically valid nor supported by the forensic DNA community,” according to the report. The Scientific Working Group on DNA Analysis Methods (SWGDAM) recommended in 2010 that DNA labs implement a dual threshold when testing evidence, APD’s lab only used one.

The Travis County DA’s Office has identified, so far, nearly 1,400 DNA cases since the mid-1980s that might have been compromised by how the APD lab was testing and analyzing DNA mixtures. The DA’s Office says some of the cases resulted in convictions and some in deferred adjudications.

A spokesperson for the DA’s Office says they’re working closely with the Capital Area Private Defender Service (CAPDS) to inform every defendant whose case might potentially be impacted by the DNA developments. Every defendant who is contacted can request that their DNA results be re-calculated. The department “anticipates” that most defendants will seek to have their convictions set aside.

After considering new DNA statistics and other evidence, the court will have the final say on what will happen in the case.

With the lab shut down, officials are hoping the grant discussed on Tuesday will help fund a new program that reviews these cases and provides some oversight. Sam Bassett, a Criminal Defense Lawyer, says money to fund forensic science is a good thing when you have someone’s life a stake.

“If there’s not enough money, then you have the risk people will be wrongfully convicted. You have the risk that people who are actually guilty will not be in the system not found not located,” said Basset. “And you have the torture that victims’ families go through waiting for somebody to be prosecuted for hurting their loved one.”

Stephen L. Michalewicz: Convicted murderer up for DNA retesting

The State v. Steven Michalewicz is only one of the nearly 1,400 DNA cases wherein the defendant is seeking DNA retesting.

Michalewicz was convicted in the 1988 cold case murder of Debra Guess. She was found murdered inside her South Austin home in February 1988. According to police, Michalewicz was arrested, but the charges were dismissed a year after her death.

It wasn’t until 2000 that charges were refiled against Michalewicz because of new DNA evidence. It’s this DNA evidence that is now in question.

The Travis County District Attorney’s Office sent Michalewicz this letter. It states, in part:

“I am writing to notify you that the above criminal case might possibly be impacted by recent scientific developments relating to DNA evidence.”

Michalewicz is maintaining his innocence.

KXAN spoke with his defense attorney, Sam Bassett, who said, in general, “DNA testing and analysis is important to determine if the defendant is the actual guilty party in any offense.”

Bassett said in order to effectively test DNA, investments must be made.

“I think that forensic science is advancing at such a rapid pace that the governmental leaders need to understand and the public needs to understand that criminal justice through forensic science is going to cost money and we need to dedicate the right amount of money to take advantage of the advances in science.”

Meanwhile, Austin victim advocacy groups like SAFE Alliance, Stop Abuse For Everyone, are fighting for changes in the way Austin handles sexual assault and DNA kits.

During Thursday’s Austin City Council meeting, SAFE Alliance plans to push for two amendments in next year’s city budget that would reopen the Austin Police Department DNA crime lab:

  • PS1.07 would provide $500,000 for the outsourcing of 500 kits
  • PS1.04 would provide $1.4 million for seven analysts and one supervisor

“It will help the judicial process to resume full operation,” explained sexual assault advocate, Jacquelyn Chorush. “Right now, the process in our city is broken because a very key part of that process currently doesn’t even exist.”

The organization is seeking the public’s support for their cause here: http://www.safeaustin.org/2016/08/20/tell-council-member-reopen-apds-dna-lab/

“We need to make sure that we can provide survivors with a sense of closure as soon as possible so that they can continue with their lives and heal,” added Chorush.

Texas Forensic Commission Review

After its July meeting, the Texas Forensic Commission issued a comprehensive report consisting of 415 pages on APD’s DNA Lab. During the audit, the team observed that “analysts lacked understanding regarding important quality assurance procedures.” The Commission determined that a refresher training in basic molecular biology, forensic genetics and statistics will be critical in moving the laboratory forward.

In order to move forward and reopen the lab, the Commission recommended a long list of items the APD DNA Lab will need to do. Some of the biggest items revolve around hiring qualified staff. The Commissions says the department should conduct a national search for a permanent Technical Leader and that person should have at least a Master’s degree in biology, chemistry or forensic science. Every analyst in the APD DNA Lab should also go through a new training program and competency test.

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