
More DPS labs flawed
DNA testing woes across state
threaten thousands of cases
By STEVE McVICKER
March 27, 2004
The same problems that shut down criminal laboratories in
Houston
and McAllen have surfaced in Department of Public Safety crime labs
across the state, according to internal audits obtained by the Houston
Chronicle.
The findings about the agency charged with overseeing
the
accreditation of all municipal DNA labs could throw thousands of
criminal cases into doubt.
A state lawmaker complained that the Texas DPS "misled"
the
Legislature, and a criminal defense lawyer speaking for a statewide
organization demanded a multimillion-dollar review of convictions.
The audits, which the Chronicle obtained through open
records
requests, were conducted last year at the DPS labs in Houston, Austin,
El Paso, Garland, Lubbock, Corpus Christi, McAllen and Waco. They
revealed procedural flaws, security lapses and shoddy documentation at
several of the labs, which could result in faulty DNA profiles and
possibly send innocent people to prison or allow the guilty to escape
justice.
The findings include:
- DNA analysts who do not understand how to interpret
test results.
- The failure of analysts to run blank samples to make
sure
instruments are not contaminated with DNA residue from previous tests.
- DNA reports that do not include important
statistical probabilities.
- Possible cross-contamination of blood samples.
- A lack of lab security.
- Failure to document critical analytical procedures
at the state
lab that inputs DNA profiles into the FBI national DNA database.
"The only thing that can be done is to do the same
thing
that's being done in Houston," warned Stanley Schneider, chairman of
the Texas Criminal Defense Lawyers Association's crime lab strike
force. "We've got to get someone to go back and see if (DPS) made
mistakes. And it's going to cost millions and millions of dollars."
In response to the Chronicle's findings, the state
lawmaker
who pushed through a 2003 bill mandating tougher lab oversight last
week subpoenaed five years worth of DPS records and said he expects to
begin a new round of hearings as early as mid-April.
"I have lost confidence in DPS and their ability to
oversee
these labs," said state Rep. Kevin Bailey, D-Houston and chairman of
the House Committee on General Investigating. "Clearly we're going to
have to hold hearings and ask them to come forward and give us their
analysis of what's going on."
As part of last year's reforms, the Legislature
entrusted DPS
with overseeing the accreditation of all public DNA labs in the state
by September 2005. That includes the municipal labs, like the one
operated by the Houston Police Department, as well as the state-run
labs, which process evidence for state agencies and local cities and
counties that cannot afford their own labs.
But the revelations by the Chronicle, combined with
previously
reported problems at municipal crime labs in Houston, Bexar County and
Fort Worth -- as well as the the DPS's decision to quietly suspend
testing at its lab in McAllen for three months last summer -- have
raised questions about the quality of information that his committee
received from DPS officials and suggest that new solutions are needed.
"I personally feel that we were misled," he said.
DPS officials in an e-mail response late Friday stood
by the
quality of the work of the DNA labs, but emphasized that none of the
problems resulted in the false identification of a suspect. They
attributed many of the problems in the audit to documentation rather
than faulty lab work.
The reforms were prompted by the DNA debacle in
Houston. Last
year, the Houston Police Department and the Harris County district
attorney's office began independent retesting of almost 400 cases
involving evidence processed by the police department's DNA division.
That process continues. So far, one man, Josiah Sutton, has been
released from prison after retests excluded him as a suspect in a rape
for which he served 4 1/2 years in prison.
The City Council to date has authorized $4.6 million
for the retesting.
Perhaps the most troubling item in any of the DPS's
2003
internal audits is found in the report on its Houston laboratory. The
team of three DPS auditors found problems in interpreting DNA results
when the evidence included multiple contributors.
"The interpretation of mixtures is not fully understood
by
some of the DNA analysts," the team reported in March 2003. On Friday,
a DPS spokeswoman e-mailed that the interpretation was understood by
all but one analyst.
Schneider noted that the misinterpretation of a DNA
mixture was the key problem in the Sutton case.
"This is one of the basics of advanced DNA," Schneider
said.
"It's simple if done properly. If not, it's a problem. How can this lab
function if that's the problem?"
A forensic consultant who works in the private sector
concurred.
"Not understanding the interpretation of mixtures could
give you
a wrong result," said California-based DNA analyst Nora Rudin, who
reviewed the DPS audits at the Chronicle's request. She, too, pointed
out that it was faulty interpretation of mixtures that contributed to
the closure of HPD's DNA lab.
The Houston audit also found problems with "macro hair
examinations," the side-by-side comparisons of strands of hair, and in
some cases the local analysts mistakenly concluded that they did not
have enough hair remaining to test. Rudin noted that there have been
recent cases in which DNA tests on hair have contradicted the other
comparisons.
"If a hair has been lost," she said, a review "is
impossible."
At the DPS lab in McAllen, testing was suspended from
June 16 to
Sept. 26, 2003, after auditors cited problems. Key among them was the
allegation that the sensitivity of an instrument used to determine DNA
profiles was not established before working on evidence. The shutdown
led to a review of evidence processed by the lab in nearly 300 cases.
Although DPS officials did not inform most law enforcement officials or
any of the defendants or their attorneys about the probe, the agency
says the review turned up no mistakes.
Alejandro Madrigal, the former supervisor of the
McAllen DNA
lab who was suspended -- for administrative reasons, the DPS says --
and then demoted, maintains that none of the faults found with his lab
was as severe as the mixture interpretation problem in the Houston DPS
lab.
"Those mixtures can get kind of hairy, and if you don't
understand them, you've got a problem," Madrigal told the Chronicle
before his reinstatement. "To me, this means they need more training
(in Houston)."
Additionally, inspectors said the external vault at the
Houston DPS lab did not have a protective fence around it and that "it
can be easily approached at the rear or front without detection."
The problems extend beyond Houston and McAllen,
however.
Forensic consultant Rudin pointed to the El Paso audit, which indicates
that statistical probabilities for possible DNA matches are provided
"upon request" -- a practice she describes as highly unusual and one
that could potentially lead to inexact evidence being introduced into
criminal proceedings.
"Without a statistic, a match is meaningless," Rudin
said. "So
if they're issuing a lot of reports without statistics ... then that's
misleading."
The audits also turned up significant problems in
Abilene,
Waco, Lubbock, Garland and at two labs in Austin. The problems range
from bad methodology, storage and record-keeping to severe backlogs
that could mean some trials have to go forward before evidence testing
is complete.
Rudin also questioned the quality of the auditing. She
pointed
to an August 2003 recommendation by audit team captain C. Glen Johnson
for lab personnel to use data from another DPS facility to validate
work in the El Paso lab. Johnson did not respond to a request for
comment.
DPS officials e-mailed that they stood by that system
of inspection.
"That upset me more than anything I read," Rudin said.
"And it
was from an inspector, which tells me that the inspectors have no clue.
The whole point (of the audits) is that you're supposed to do them in
your own lab. That's what internal validation is. And that doesn't mean
within a laboratory system. It means within a physical plant."
Regardless of the severity or quantity of problems
found by
the inspectors, Rudin said, almost every audit report concludes that
the lab in question "is producing quality work."
"It's the same language every time," Rudin said. "
`It's fine.
They're doing a service. They're doing quality work.' And on every
single one of them it was so gratuitous it stopped having any meaning."
Schneider's overall assessment was more pointed.
"If crime labs were in the private sector, they'd all
be shut
down," the Houston attorney said. "Business would not tolerate this
kind of functioning."
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