- Tony Plohetski American-Statesman Staff, KVUE News
When a freezer housing hundreds of DNA samples at the Austin police crime lab broke down this spring, officials were unsure whether heat had damaged critical evidence in pending cases.
Because they had no way of knowing, according to a memo obtained by the American-Statesman and KVUE-TV, they decided to keep mum. They alerted no one outside the lab — not investigators, prosecutors, defense attorneys or judges.
“If, in the future, the laboratory determines that a sample has been affected by this incident, the customer will be notified,” interim DNA technical leader Diana Morales wrote in a March 16 letter to her bosses in the department.
Two months later, the Austin Police Department shuttered the DNA lab, citing multiple issues raised by the Texas Forensic Science Commission that focused primarily on scientific measurements and staff training.
But the freezer memo has only recently emerged — through the work of an outside nonprofit — and is deepening concerns in the criminal justice community about the lab’s operation in recent years.
Officials and defense attorneys say the issue is emblematic of a larger lapse in lab management — and they bluntly question, based on the response to the malfunction, whether the staff can be trusted to handle sensitive evidence. They said the memo reflects possible incompetence or, at a minimum, too casual an attitude in handling forensic samples that can tilt the scales of justice.
“This raised serious concerns at the district attorney’s office about APD’s recognition of their responsibility to the DA’s office and to the justice system in general with regard to incidents that affect the quality of the evidence,” Travis County District Attorney-elect Margaret Moore told the Statesman.
“It added to the already existing concern raised by the Forensic Science Commission report,” Moore said. “It is an important factor as we begin a community deliberation about how to resolve existing issues and move forward.”
Interim Police Chief Brian Manley said Thursday that lab staff documented the issue but did not understand the necessity to alert others in the criminal justice system.
“I would say that we had a need to notify them and we failed in that,” Manley said.
Months after the freezer malfunction, officials said it is still unclear how the incident affected hundreds of samples inside.
The memo also describes a breakdown in the response after the equipment stopped cooling. The lab subscribes to a service that is supposed to alert the staff when a freezer gets too warm, but, because that system failed, officials said the samples were at an improper temperature for eight days — instead of a few hours.
“The ability to have proper monitoring systems in place to realize those issues quickly is critical to our operation,” Morales wrote.
Revelations about the department’s handling of the broken freezer come after months of intense scrutiny of the crime lab that has included several outside audits and the lab’s temporary closure. Officials are currently considering whether the center should be operated independently of the Police Department, potentially by an organization with more experience in managing such facilities.
In one of its biggest findings, the state commission said lab staffers hadn’t been following the proper methodology in analyzing DNA, and they had continued to defend their own method when they were asked about it. Last week, the Statesman reported that prosecutors were about a third of the way through sorting all of the Police Department’s forensic investigations since 2004 — when experts said the department’s procedures might have been compromised — to determine how many resulted in trials and convictions.
On the day before his departure to become Houston’s police chief, former Austin Police Chief Art Acevedo also cited fixing the lab’s problems as one of his biggest unmet goals. Acevedo said he had hoped to have the commission’s issues addressed and the facility running again before leaving.
According to the recently obtained memo, hundreds of DNA samples were in the freezer. Proper temperature is necessary “to prevent decomposition and sample degradation,” it said.
The memo said Morales learned about the issue after an analyst reported that the equipment, which is supposed to remain between minus 5 and minus 25 degrees Celsius (23 degrees Fahrenheit to minus 13 F), was “very warm.” Morales wrote that she confirmed the out-of-range temperature and immediately notified maintenance, which discovered a refrigerant leak.
She wrote that it is impossible, based on the number of samples inside the freezer during those eight days, to know whether any of them were compromised during the malfunction.
“All the evidence currently being housed in (the freezer) will continue to be maintained according to its retention time,” Morales wrote. “The freezer will be under increased monitoring.”
Trudy Strassburger, deputy director of Capital Area Private Defender Service — a nonprofit helping indigent defendants and which is working to better understand the significance of the lab issues — said she learned of the memo in late October as part of her review of the lab. She then alerted county prosecutors.
“The failure to notify is a clear violation of the duty to disclose to the defense information about evidence that could be compromised in a criminal case,” Strassburger said.
County prosecutors have now included the letter in information they provide to defense attorneys about cases they are handling that involve DNA.
Austin defense attorneys said they also are concerned after learning about the freezer matter.
“The No. 1 problem for reliable samples is how they were stored and how they are managed,” said attorney Ariel Payan, who has helped coordinate training sessions for his colleagues about DNA issues. “I’m a little shocked that they would not notify the defense community or even prosecutors that this is a concern.”