Silent Witness - Volume 8, Number 3, 2004

Houston, We Have A Problem … Do You?

by Marie Munier, Chief of the Trial Bureau, Harris County District Attorney’s Office 1

In November 2002, a Houston investigative reporter began a series of reports concerning irregularities and mistakes made by DNA analysts at the Houston Police Department’s (HPD) DNA lab. The initial news reports resulted in the chief of police suspending all work by the DNA section of the HPD Laboratory, participating in an independent audit of the DNA section of that lab, comparing the HPD’s procedural standards to the FBI standards, and reviewing the first seven cases highlighted in the reporter’s story. The Harris County District Attorney’s Office in Houston conducted the initial review. The district attorney’s office also hired a local, private DNA lab to review the notes and documents supporting the DNA testing on the seven cases identified by the reporter. The domino effect of the television reports, newspaper reports, and subsequent internal and external events has echoed throughout the legal and scientific community. This article examines what happened in Houston, and is intended as a wake-up call for other jurisdictions using DNA evidence.

The Problems within the Houston Police Department’s DNA Laboratory

Auditors from three separate accredited labs in Texas conducted an independent audit2 of the HPD DNA laboratory in December 2002. The audit found numerous instances of non-compliance with FBI standards regarding operations at the lab.

Here are just a few:

1. The laboratory personnel did not have the education, training and experience commensurate with the examination and testimony provided. Nor were the examiners and other personnel actively engaged in DNA analysis tested for proficiency by external testers.
   
   
2. The managerial staff of the laboratory did not have the authority and resources needed to discharge their duties and meet the requirements and standards established by the FBI. Annual audits of the laboratory were not completed and documented.
   
   
3. The DNA laboratory did not have an established, maintained, and documented quality control system for calibrating and cleaning equipment, preventing contamination, confirming findings, interpreting data or conducting administrative and technical case reviews.
   
   
4. Case notes were not adequate, nor did the laboratory have written procedures for taking and maintaining case notes to support the conclusions drawn in reports. The laboratory did not retain or return a portion of the evidence sample or extract whenever possible. The laboratory did not conduct internal reviews of all case files and reports to ensure the conclusions and supporting data were reasonable and within the constraints of scientific knowledge.

Despite these and other problems, the audit found that the scientific methods used during both the investigations into the lab and the retesting process complied with the FBI standards adopted for DNA profiling. The district attorney’s review of the seven cases identified by the investigative reporter corroborated many of these same problems, but in addition found insufficient documentation, no second person review, improper sample labeling and incorrect statistical analyses.

What Happened in Houston

In response to the independent audit and the case reviews, the media, some defense attorneys and even some members of the judiciary called for an independent review of the laboratory problems, an independent investigation of the convictions obtained, and the appointment of a special prosecutor to investigate any culpability within the district attorney’s office. News coverage and the thrust of most newspaper and television stories eroded the public’s trust in the integrity of the Houston Police Department, the district attorney’s office and the criminal justice system.

The Harris County District Attorney’s Office began to address the issues by ordering a complete review of all cases from the HPD DNA lab. Three actions were taken: (1) retesting DNA evidence that was used to convict persons; (2) identifying those cases in which DNA evidence was used to determine guilt; (3) identifying guilty people who were not prosecuted because of erroneous DNA exclusions.

The continuing and more difficult challenge is restoring the public’s trust in forensic DNA evidence and in the integrity of the criminal justice system.

The Scope of the Problem of Identifying and Reviewing the Cases

The greater Houston area has more than four million people. The district attorney’s office handles over 100,000 cases a year. The City of Houston Police Department files approximately 60% of those cases. No information concerning which cases involved HPD DNA testing (as opposed to another crime lab) was readily available. To help identify cases to be reviewed by the district attorney’s office, the HPD began to match DNA report numbers with police reports. As a result, the HPD forwarded more than 1300 offense reports, along with their corresponding HPD DNA lab reports, to the district attorney’s office.

Every capital murder case resulting in a death sentence, (even the cases that were not investigated by the Houston Police Department) was reviewed.

Next, a team of senior district attorney investigators systematically read the offense reports and identified which reports resulted in the filing of charges against one or more individuals. At the time of this writing, a list of 976 cases was compiled for review. Finally, approximately 30 prosecutors painstakingly reviewed the case files and, at times, trial transcripts to determine if the DNA evidence in the case should be retested.

The district attorneys’ criteria for determining retesting were

• was there a trial,
• was HPD DNA evidence used against the defendant in any way,
• did the defendant plead guilty or no contest, and
• was there DNA testing done that incriminated the defendant in any way?

Significantly, the relative importance of that DNA evidence was not weighed. The DNA in a case with six eyewitnesses and a confession would still be retested if there was a trial or a plea involving DNA evidence that in any way incriminated the defendant.

Where Are We Now?

To date, Harris County prosecutors have reviewed 976 cases. Of that number, 377 (or 39%), including seven juvenile cases, were identified for retesting. Currently, retesting results have been received in 330 (or 87%) of the disposed cases. No person executed had HPD DNA evidence used against him or her at trial. Of the remaining cases, only one convicted man, Josiah Sutton, has been released from prison and pardoned. A review of the case revealed that an analyst’s misinterpretation of otherwise accurate DNA results resulted in his conviction. Upon retesting, using PCR-based STR testing, the science that set him free had produced the same data as the HPD technology did originally. A review of the case revealed that, after retesting, the DNA results were accurate. Problems arose, not from the science or technology of DNA testing, but rather from human error—a lab analyst misinterpreted the results from one sample, and another sample was unable to be retested.

Prosecutors are responsible for every aspect and all evidence in a prosecution, whether they knew about it at the time or not, whether they approved or not, and whether they could, realistically, remedy it or not. Ultimately, it is the prosecutor’s responsibility to ensure the integrity of the evidence and meet the burden of production. Consequently, prosecutors must understand the science and statistics of DNA. Additionally, they must know how to scrutinize the appropriate casework, notes and reports, and documentation that should exist detailing the analyst’s qualifications. Prosecutors must be familiar with the FBI’s standards for quality assurance and scientific disciplinary accreditation. Prosecutors must have ongoing communication with their lab directors and analysts. Then, prosecutors must assure the accuracy of the evidence—the availability of defense retesting. The Harris County District Attorney’s Office and the Houston Police Department took the unprecedented action of retesting every case where DNA played a part in obtaining a conviction.

How to Prevent This from Happening to You

In Texas, the Code of Criminal Procedure, Articles 28.01, 39.01 and 39.14, govern our discovery practice. In a nutshell, pretrial discovery to the state is limited to receiving the names of defense experts. The discovery afforded to defense includes names of the state’s witnesses, documents and written statements made by the defendant and the designation of the state’s experts. Depositions are permitted only for the defense and are rarely done. The courts have discretion whether or not to have any pretrial hearings, and pretrial motion practice is limited. There is no requirement to disclose any bench notes or work product of the scientific witnesses pretrial, but the opposing party may see these underlying documents at the time of cross-examination of the particular witness.

Regardless of the Criminal Procedure Rules constraints or leniency in disclosure, prosecutors should have spotted these problems and prevented this crisis. The prosecutors’ ignorance of the science of DNA and statistical analysis, quality assurance standards, proficiency testing analysts, external audits and competent case work, allowed the problems to go undetected until the media exposed them.

While criminal practitioners may truly understand how this situation could happen, can the same be said of the public? The costs of the loss of public trust will impact prosecutors deeply. The best way to restore the public’s trust is not to show them unequivocally that the science behind DNA profiling is solid, but that their prosecutors are watchdogs providing constant oversight to ensure its integrity.

Post Script

In June 2004, a Texas state district judge, Jan Krocker, requested that a court of inquiry evaluate the surrounding facts to determine if there was probable cause that the former director of the Houston Police Department’s DNA section had committed aggravated perjury. The following is language from the order issued in response. “As a matter of public policy, courts do not require performance of useless acts, nor does the law require the doing of a vain and useless thing that would be a waste of judicial resources,” state District Judge Dean Rucker of Midland wrote in his order signed July 2004.

It cannot be stated emphatically enough; “prosecutors” will be held accountable for the actions or inactions of any agency that is involved with evidence. Not only the media, but also the defense bar, the judiciary, and the people of Harris County ultimately focused their attention on their prosecutors to bear responsibility. It is very important to understand that prosecutors should not reactively respond to allegations but proactively prevent them.

1 Marie Munier has been a prosecutor in the Harris County District Attorney’s Office for over 25 years. Currently, she is the chief of the Trial Bureau supervising prosecutors in more than 20 courtrooms. At the request of Chuck Rosenthal, Harris County district attorney, she also has been responsible for the coordination and resolution of all the cases involving DNA evidence analyzed at the Houston Police Department’s DNA lab.

2 Federal Bureau of Investigations, Convicted Offender DNA Databasing Laboratories, Houston Police Department Crime Laboratory—DNA/Serology Section, December 12-13, 2002.