- By Taylor Goldenstein American-Statesman Staff
As defense attorneys and prosecutors sift through cases potentially tainted by problems uncovered at the Austin Police Department’s now-shuttered DNA lab, they are sending cases to outside experts to review DNA analysis when it was critical to the outcomes.
Of the first 39 cases reviewed, at least a quarter needed more study and could see a new day in court, a top lawyer researching the cases told the American-Statesman on Tuesday.
“Our goal is that we do a thorough job of investigation and prepare cases for litigation where we deem it to be warranted,” said Lindsay Bellinger, interim director and attorney with the Capital Area Private Defender Service, a nonprofit indigent defense agency contracted by Travis County to conduct legal case reviews. “And, of course, to get justice for the folks who are impacted by it.”
Bellinger joined officials from the Travis County district attorney’s office and the Police Department on Tuesday to update the Travis County Commissioners Court about their efforts.
The quarter of the cases that the defender service is reviewing came back with results that could be beneficial to the defendants’ cases, such as a previous DNA result not excluding a person that came back inconclusive, Bellinger said. In such cases, defense attorneys could pursue negotiations with the district attorney’s office — for example, to discuss a reduced sentence — or to pursue new litigation.
The Police Department’s DNA lab shut down in 2016 after a state audit found problems with the handling and analysis of evidence. In March 2017, Austin officials moved to open a DNA lab managed by the Texas Department of Public Safety at the Police Department facility through a five-year agreement. The city also has contracted with three private labs for services.
The city of Austin and Travis County, which both relied on the Police Department lab to analyze DNA evidence for criminal cases, hired legal and scientific experts to review cases that might have been affected.
The review began in 2016 with the district attorney’s office sending legally required notifications, called Brady notices, to all defendants whose cases might be affected. Those defendants could then contact the Capital Area Private Defender Service’s Forensic Project if they wanted to have their cases reviewed.
If one is requested, the Forensic Project will conducta “materiality review” to decide whether the case’s outcome might have hinged on DNA evidence. (The Juvenile Public Defender is handling reviews of cases where the accused was between the ages of 10 and 17 years old at the time of the offense.)
Bellinger said the team has completed materiality reviews for 292 of the 565 cases for which defendants requested reviews. The team has determined that it cannot pursue 160 of the 292 cases for various reasons, including that the DNA was not found to be material to the case.
At the same time, the district attorney’s office is doing its own materiality reviews, with 647 completed so far.
After completing the materiality reviews, the Forensic Project and the district attorney’s office decide on batches of about 10 or so cases at a time to send to Bruce Budowle at the University of North Texas Health Science Center, which is contracted by the city of Austin, for scientific review of the DNA analysis.
The university began returning cases in December 2017 and has so far returned 39, and the Forensic Project is now looking into those for cases that could potentially see post-conviction litigation.
The service requested funding in the fiscal 2019 budget to hire an attorney specializing in that area of law to focus on post-conviction claims.
The UNT Health Science Center also identified issues that the Texas Forensic Science Commission did not observe during the original audit that sparked the lab’s closure, including the improper swabbing of evidence and the use of a different scientific standard for the control versus the evidence. But the center said those issues have not affected test results.
The Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania continues to work on a “root cause analysis,” or a review of the DNA lab’s processes and protocols to find the cause of the deficiencies that prompted the 2016 lab closure. It also will do a “look forward” review that will give advice on what needs to change to improve those processes and protocols.
The center should have a report on its status by February, officials said Tuesday.
A federal class action lawsuit filed in June against the city of Austin, Travis County and five city and county officials claiming they failed to properly handle sexual assault cases has caused a minor interruption to the Quattrone study, Assistant District Attorney Gregg Cox said.
The Quattrone center postponed some interviews until city and county law departments could determine how best to manage individuals who also are being interviewed as part of the lawsuit, but most have now resumed, Cox said.
County Judge Sarah Eckhardt said after the presentation Tuesday that she was glad to see those reviews moving along after some initial delays with contracting on the city’s end.
“Early on, I was fairly strident, lighting my hair on fire at the slowness of getting this project done, but we’re in the saddle now, and I very much appreciate it,” Eckhardt said.
Note: This story has been updated to reflect a more telling example of the type of case that the defender service will be reviewing futher.