Travis County and the city of Austin will be forced to spend up to $14 million, according to some estimates, to review and reopen thousands of DNA samples from the shuttered Austin police crime lab — an unexpected cost so high it could result in a significant hike to taxpayers, the American-Statesman has learned.
Officials are still trying to estimate how much it will take to ensure that faulty lab work has not resulted in wrongful convictions and that forensic analysis in pending cases is accurate.
The revelations about the expenses are the latest unwelcome surprise concerning the lab that centers on its troubled DNA unit. Those issues have ranged from lab staff not using commonly accepted national practices to a supervisor’s decision to keep mum about a freezer housing hundreds of vials of DNA evidence that sat broken for eight days, potentially damaging the samples. The lab closed six months ago and its future remains uncertain.
Travis County Judge Sarah Eckhardt warned of an untold financial fallout from the problems. Costs are “definitely going to come out of property taxes, so we either increase taxes or we cut something else because the DNA lab over at APD imploded,” she told the Statesman.
The exact amount needed for the reviews and possible retesting is unclear. So far, the county has received a range of estimates from the nonprofit Capital Area Private Defender Service, an indigent defense agency, to conduct “post-conviction case reviews” of evidence the lab’s staff analyzed during a 12-year span starting in 2004.
According to records obtained by the Statesman, models for such reviews involve varying levels of expert input and use of appellate attorneys. The most expensive carries a $14.4 million estimated price tag while the least expensive is about $6 million.
Officials said under some models, not every DNA sample would be retested. Instead, attorneys would review several thousand cases and decide which call for further inquiry.
“I expect it to be a very large number,” Eckhardt said of the expense. “There’s no doubt about it … The downstream costs of this are mostly in the county’s column, and we’re going to need the city’s assistance with this.”
The costs of the reviews do not include millions in additional dollars it could take to get the lab reopened should officials choose to do so in 2017 — an issue that is the focus of a debate among politicians and members of Austin’s criminal justice community.
The Statesman reported in October that some local officials and defense attorneys are urging the city to consider doing what other major U.S. cities have done by removing the lab from the police department purview and possibly having it run by a private entity. And a recent email to other city and county officials from all criminal judges in Travis County requests making the lab independent.
Historically, the county-funded District Attorney’s office has paid for DNA retesting, but because of the scope of the issues — and the fact that the problems arose in a city-operated facility — officials are trying to determine whether the costs should be shared.
Austin Mayor Steve Adler said he also has concerns about the cost to ensure DNA samples are properly reexamined, but said he also understands the necessity.
“I think we’re still at the stage where we have to figure out how best to do the backwards look, what it is we need to learn and need to know, and decide what is the way collectively we should all be moving forward,” Adler said. “I’m concerned about the cost as well, but at this point, we don’t know the full extent of what that might be.”
The lab’s operations erupted as an issue about five months ago when city officials closed it days before receiving an alarming report from the Texas Forensic Science Commission. The audit cited staff training and said workers were using incorrect methods when they examined DNA samples, frequently key evidence in violent crimes such as homicides and sexual assaults.
Former police Chief Art Acevedo summed it up in a recent interview, saying “our scientists decided to go onto an island themselves.”
The condemnation by the commission caused alarm in every tier of the criminal justice system and raised concerns about the quality of evidence in thousands of cases. It could take months or years to determine whether faulty lab work led to false convictions or will cause pending cases to crumble.
“Potentially thousands of affected individuals are currently incarcerated in Texas state prisons, and hundreds more have felony records that affect their ability to get jobs and to vote,” the Capital Area Private Defender Service wrote in its cost analysis to the county.
Defense attorneys estimate there were 4,000 to 5,000 people convicted using evidence processed in the Austin lab, but prosecutors estimate it’s closer to 3,600 people. Testing on those cases takes up to $6,000 each.
During a November county commissioners court meeting, the executive director of the nonprofit criminal defense group said financial considerations involve both the future and the past.
“If this were just a forward-looking problem, it would probably be easily managed because all we would have to do is develop a set of procedures that corrected the problems that exist now and move forward, dealing with the pending cases we have and any future cases we have,” executive director Ira Davis said. “But it’s a backward-looking problem too. … It may be the case that we have to look backward all the way to the beginnings of that lab” in 2004.
More costs, and questions
According to the organization, county officials could assign an attorney to each case that used DNA evidence analyzed by the lab to review it and “file appropriate motions” for a minimum cost of $13.2 million. Or it could choose a more expensive option in which attorneys would do a deeper review of cases using two attorneys from the outset to learn which might have potential issues — for $14.4 million.
The last option — at a cost of $6 million — would involve the county or city hiring new lawyers to handle the cases instead of using outside attorneys.
“As stakeholders in this issue, we have to strategically plan for the future,” said Trudy Strassburger, deputy director of the defender service. “We have given the city and county a number of options each with its own set of benefits and drawbacks.”
In addition to retesting, city and county officials will likely contend with costs related to a review of lab staff missteps to prevent them from happening again. The total for that work isn’t yet known.
They are currently drafting a joint agreement to hire a person, or a team of people, who can conclude what steps need to be taken to ensure that the lab meets scientific standards when it reopens and help the DA’s office figure out which previous Travis County convictions hinged on DNA evidence. There is not yet an estimated cost for that work, which is largely now being done by county prosecutors.
The county’s Commissioners Court and Austin City Council are expected to vote on the tentative agreement by the end of the year. Eckhardt said the Texas Forensic Science Commission is also working with county and city officials to draft a scope of work for that team.
The county and city are also looking into hiring a person or group who can evaluate whether the lab should reopen under the same structure it had before or whether it would be best to restructure it, such as opening an independent lab or placing the lab under the purview of the medical examiner’s office.
They do not have a cost estimate for that work either.
“The good news is that, by hiring an expert or a team of experts to do this analysis as a holistic effort, this is way cheaper than handling it on a case-by-case basis,” Eckhardt said.
Adler said, “At this point, we’re concerned about what we have to do to serve justice.”