Feb. 14
TEXAS:
Where's Your Evidence?; Advances in forensic science have made physical
evidence increasingly crucial in criminal justice - but the practice of
preserving and maintaining that evidence is often underfunded, poorly managed,
or just plain sloppy
An evidence room in disarray. Officials asked that it not be identified.For
more than a decade, lawyers for death row inmate Hank Skinner fought
prosecutors - in Gray County and the attorney general's office - for the right
to DNA-test certain items of evidence. Skinner was convicted and sentenced to
die for the 1993 murder of his girlfriend Twila Busby and her 2 grown sons in
the home they shared in the Panhandle town of Pampa. The crime scene was bloody
- Busby was bludgeoned, her sons repeatedly stabbed - and while some DNA tests
have been performed, there was plenty of evidence that hadn't been tested,
including a sweat- and blood-stained windbreaker. The jacket is crucial,
attorney Rob Owen has argued; found next to Busby's body, the tan snap-front
jacket resembled one regularly worn by Busby's now-deceased uncle Robert
Donnell, who the defense claims was obsessed with Busby and may have been her
real killer. In short, testing the jacket might help prove Skinner's innocence
- or confirm his guilt.
On June 1, 2012, the state finally dropped its opposition to the testing. Just
two weeks later, Owen was again frustrated when the AG's Office informed him
that the windbreaker was missing. "According to the state, every other piece of
evidence in this case has been preserved," he said at the time. "It is
difficult to understand how the state has managed to maintain custody of items
as small as fingernail clippings, while apparently losing something as large as
a man's windbreaker."
No one seems to know when or how the jacket went missing. The Pampa Police
Department, which investigated the murders, originally held all of the evidence
related to the case. When the time came for Skinner to be tried, the evidence
was handed over to Gray County. Some time after Skinner was tried, the jacket
simply disappeared - and no one knows where it went, said Gary Noblett, a
41-year veteran of the Pampa PD and custodian of its evidence and property
storage. Over the years, he said, a number of law enforcement types have called
looking for it - including officials with the AG's Office. "As far as I know
of, no one's ever been able to find that thing," he said. Skinner remains on
death row as DNA testing on other items of evidence continues.
Skinner's case is not unusual. Unfortunately, missing evidence is "way more
common than you'd think," says evidence expert John Vasquez. Vasquez worked in
property and evidence management for 25 years, 1st for the military and then
for the Fort Worth and Wichita Falls PDs, before starting his own
evidence-control consulting business. More often than not, the evidence hasn't
actually been removed from a law enforcement storage facility - though scandals
involving stolen evidence are unnervingly common, as officials with the Houston
PD can readily affirm. Instead, says Vasquez, missing evidence is generally
misplaced evidence - logged into one area of a storage facility and then moved
without anyone noting the new location, or overlooked when a department's
evidence-tracking system is upgraded.
That is, perhaps, the good news - though having something and not knowing where
it is, or not being able to find it, is hardly less damaging than discovering
that an item has been stolen or destroyed outright.
Indeed, an investigation by the Chronicle into the state of criminal evidence
storage and retention in Texas reflects that while state laws firmly mandate
the preservation and maintenance of evidence that may contain biological
material, there is little consistency in how these laws are actually carried
out, including wide disparities in how evidence is packaged and maintained.
Legislation enacted in 2011 extended by decades the length of time that items
of evidence that may contain DNA must be stored, and directed a group of
stakeholders to come up with guidelines and best practices for the handling and
storage of that evidence. However, many law enforcement officials see the
legislation as merely a good first step, and moreover, an unfunded mandate.
Property and evidence technicians and managers are often poorly paid and
receive very little training, if any, on how to do their jobs, says Vasquez.
That's a combination that can quickly lead to scandal for a police department
working within a criminal justice system that increasingly relies on science to
make evidence meaningful.
As forensic science evolves and DNA testing becomes more precise, the amount of
material being collected has also increased, thrusting the maintenance of
evidence - once considered the "red-headed stepchild of law enforcement," says
Vasquez - into the legal spotlight, and expanding the need for skilled
inventory management. "We are somewhat overrun by stuff," says Belton Police
Chief Gene Ellis, a representative of the Texas Police Chiefs Association who
was among a group of stakeholders involved last year in the creation of best
practices for evidence preservation in Texas. DNA testing "has enhanced so that
we're able to process things and come up with DNA evidence where we couldn't
before."
Without sufficient understanding of the critical role that the proper
preservation of evidence now plays - not only in convicting the guilty, but
also in freeing the innocent - the system is in serious trouble, officials
warn. "Evidence has been one of the biggest issues we're dealing with in law
enforcement," says Tony Widner, chief of the Graham PD, a small department
south of Wichita Falls. "You're not just talking about the credibility of the
department; you're talking about a victim seeing justice."
Everything ... and the Kitchen Sink
In legislation alone, Texas is actually "one of the leading states" when it
comes to property and evidence-related procedures, says Vasquez, former
president of the Texas Association of Property and Evidence Inventory
Technicians, which advocates for training for evidence technicians. "Texas is
pretty much at the forefront." Gayla Robison, who serves as TAPEIT secretary
and oversees property and evidence for the Burleson PD, agrees; it's far worse
in Arkansas or New Mexico, she says, where there are few evidence laws. Yet law
enforcement agencies are tasked with keeping safe enormous quantities of
material evidence.
Across Texas, municipal police departments and sheriff's offices are the
primary repositories for all kinds of items - from a bloody shirt collected by
detectives in a murder investigation to marijuana grow-lights, plants, and cash
seized in a narcotics raid; from a wallet found on the sidewalk to the personal
belongings of county jail inmates; from vials of blood extracted from drunken
driving suspects to sexual assault examination kits collected from alleged rape
victims. Each item must be maintained in the same condition as it is brought in
until the law says it can be disposed of. Texas statutes cover it all: when and
how to destroy drug evidence, what procedures need to be followed before
abandoned property can be auctioned off, how long materials that may contain
biological evidence must be kept.
Texas has one of the nation's strongest laws covering the retention of evidence
that might contain biological material. In 2011, after a number of DNA
exonerations, lawmakers expanded the definition of "biological material" to
include any item that contains blood, semen, hair, saliva, skin tissue,
fingernail scrapings, bone, bodily fluids, or "any other identifiable
biological material" that may exonerate or incriminate a person suspected of a
crime. Lawmakers further required that evidence in all unsolved felony cases be
retained for at least 40 years, or kept until an inmate is executed, dies,
completes the adjudicated sentence, is released on parole, or completes
probation. The law requires all parties to receive notice of any planned
destruction, and that process can be halted by the defendant, prosecutor,
defense attorney, or court.
To address the added costs, lawmakers designated the Texas Department of Public
Safety the depository for all biological evidence for counties with populations
under 100,000. But that was all they did to ease significant operational and
financial burdens that now fall on the more than 2,000 law enforcement agencies
across the state, including roughly 800 local police departments. More evidence
will have to be saved for far longer periods of time - in part because the law
doesn't limit the retention of biological materials to those collected in
connection with violent felonies, but rather requires keeping material
collected in every felony case.
The new law "creates opportunities to solve many cases," notes Belton Police
Chief Ellis, but it also raises questions. For example, should a letter that
likely has a person's DNA on it be kept as evidence in connection with a felony
fraud case? he asks. "If you follow the letter of the law, you're going to need
to retain that."
Lawmakers and law enforcers are trying to anticipate scientific developments
and guarantee that evidence will be around for coming advances - as with the
extraction of so-called "touch DNA." That, says Vasquez, is a fancy name for
the shedding of skin cells onto objects merely touched or picked up - like a
salt shaker on a table. DNA remains on nearly every item a person comes into
contact with, and DNA scientists are steadily perfecting the ability to extract
individual DNA profiles from a pool of donors - perhaps being able to isolate
the DNA of one person from among many who have touched a restaurant salt shaker
over the course of a day. When that evidence is readily accepted by courts, the
realm of potential evidence will increase exponentially. "[T]his philosophy has
never changed: When a detective gets on a crime scene, [he] has to think like
[a] suspect," Vasquez explained during a meeting with Robison, Mansfield PD
evidence manager Vincent Hunter, and the Chronicle. "What has changed is
thinking about it in a way of his touching something. Is there evidence there?
We always taught officers, 'Bring us everything and the kitchen sink, and we'll
go from there.'" Robison laughed wryly; she's had an officer bring in a kitchen
sink, she said. So has Hunter. "They are literally bringing in kitchen sinks,"
Vasquez said.
Generously, only 7% of what is brought in as evidence is actually used in
court, but all of the items collected by police are regulated by retention
laws, so the cost to individual departments adds up. The Austin Police
Department, for example, maintains a roughly 62,000-square-foot evidence
warehouse (purchased and outfitted for roughly $3.2 million, says APD's
evidence manager James Gibbens) where it stores an estimated 600,000 items,
with approximately 60,000 items brought to the unit each year, at an annual
cost of about $1.1 million.
Disorder Is the Norm
State lawmakers have done much to beef up evidence retention requirements - but
they've done very little to ensure that the laws are followed with any
consistency. For example, they haven't provided financial assistance to train
evidence technicians or to provide for proper long-term storage. The 2011 law
also directed a group of stakeholders to develop best practices for collection,
retention, and retrieval of evidence, but they remain suggestions, and without
financial incentive it is difficult to ensure those practices are followed. The
sizes and budgets of law enforcement agencies vary wildly across the state: APD
has a vast warehouse, tightly maintained and managed, but that's not the norm.
According to Vasquez, the norm for most agencies is, at best, disorder.
And then there's the really bad: He's seen chemicals seized from a meth lab
stored in cardboard stacked atop other boxes of evidence and leaking a
corrosive brew; he's seen a human skull stored without packaging or any
identifying information; he's seen a grenade, stored in a glass jar and kept in
a locker easily accessible to county jail inmates; and he's seen boxes of
evidence quite literally pitched into a closet, without regard to how the
agency might later locate any individual items.
Lawmakers have so far failed to pass legislation that TAPEIT has spent a decade
advocating: one code for all the laws governing evidence destruction.
Currently, those laws are spread throughout different government codes. "How do
you know what to do with found property, if you don't know to look in the [Code
of Criminal Procedure] chapter on 'Search Warrants'?" Vasquez asks. If the
state won't consolidate evidence and property laws into one place, won't
require training or certification for evidence technicians, and won't provide a
pool of money to help law enforcement agencies comply with best practices,
serious problems - lost or stolen property, or the untimely and improper
destruction of evidence - remain quite likely. If the state wants to
standardize procedures, that's great, Vasquez, Robison, and Hunter agree, but
they each insisted that to get it right, "you need to train the end users."
That's not happening, not only in Texas, but across the country, says Joseph
Latta, a retired 31-year veteran of the Burbank, Calif., PD who serves as
executive director of the International Association for Property and Evidence.
There's "no consistency, anywhere you look," he says. This isn't particularly
surprising, he notes, since police officers are, by and large, in charge of
evidence: "In the police department, we chase bad guys; we don't take care of
stuff," he says. "It doesn't matter whether you're in Houston or Corpus
Christi, Albuquerque or L.A. We may end up with the stuff, but we don't know
how to take care of it."
Open any number of evidence rooms across the country and "you just want to
cry," says Rebecca Brown, a policy advocate at the Innocence Project who was
among the stakeholders tapped to develop Texas' new best practices and who,
along with Latta, has been part of a U.S. Department of Justice-funded group
working on a set of national standards. "Evidence rooms have often been ... I
wouldn't say forgotten, but not [a] resource-heavy" focus for law enforcement,
she says. Texas "does have good statutes," she says, "but the question is how
[they're] being translated" into practice.
Unfortunately, says Latta, there is often little focus on implementation unless
and until a department faces scandal - which, he notes, happens almost daily
somewhere in the U.S. "It's unfortunate," he says, "but [the evidence room]
doesn't get to [be] the top [priority] without a problem."
Remember Goliad
That was certainly the case in Houston, where years of neglect and
mismanagement routinely put the HPD's evidence operation in the headlines. No
one understands this better than HPD Capt. Charlie Vazquez, who oversees the 44
people in the department's property division. On average, the HPD takes in
65,000 items per year and stores nearly 400,000 at any given time - not
including narcotics evidence, which is kept at a separate facility. "We made
mistakes so bad they actually made a movie out of us," Vazquez says. Indeed,
that 1981 made-for-TV movie (The Killing of Randy Webster) starred Hal Holbrook
as the father of 17-year-old Randy Webster, killed in 1977 by a Houston cop who
said the teen threatened him with a gun. As it turned out, the gun found next
to Webster's body had been taken into evidence by the HPD in the 60s and had
long been recorded as destroyed; the weapon had instead been taken from
evidence and was ultimately used as a throwdown in the Webster shooting.
Yet it wasn't until 2007, after HPD acknowledged that some 30 firearms had been
stolen from evidence over the course of six months and likely returned to the
streets, that officials made the move to upgrade the department's evidence
operations. Security at the decrepit facility, used continuously since 1902,
says Vazquez, was lax at best; 2 years and some $14 million later, HPD moved
its operations into a state-of-the-art warehouse facility. In 2011, Vazquez was
tapped to take over the division, and he has earnestly vowed that the
department will not repeat the mistakes of the past - a point he has impressed
upon HPD command staff. "When I was put over here, I was trying to point out
... just how important this operation is. I went through all of the [scandals]
- the missing weapons, missing DNA," and then, he said, he offered up a lesson
in Texas history. Remember the massacre at Goliad? he asked the HPD brass. In
that case, Mexican President Santa Anna ordered the execution of more than 300
captured Texas soldiers; the slaughter horrified the country, and just a month
later, during the decisive Battle of San Jacinto, after which Texas gained
independence from Mexico, troops rallied with battle cries that included
"Remember Goliad!" Vazquez paused and looked at the command staff: "I said, 'We
need to remember Goliad as well,'" he said, putting up a photo of 1103 Goliad
Street in Houston, the site of the department's century-old evidence facility.
"Just like people came from Ohio, Tennessee, and New York [to fight at San
Jacinto], I need people - [command staff], homicide, patrol - to fight for
property," he told his colleagues. "Otherwise you're back to where you were."
And, frankly, going backward in a time of fast technological advancement is not
an option, Vazquez says. Every item of evidence must be carefully considered
and painstakingly tracked. "Instead of just being a fork, now it's a fork with
possible DNA on it," he says, meaning it may have to be retained for decades -
as well-preserved and easily retrieved in 30 years as it is the day it's
brought in. With this level of heightened scrutiny comes the need for more
thorough and carefully implemented policies; other than a jail, notes Belton's
Chief Ellis, a department's evidence operation is the "largest liability in an
organization."
That is indeed the case, says Ed Harris, APD's chief of field support
operations. Harris remembers well the day he first toured the department's
evidence storage facilities more than a decade ago. There were guns dumped in
rubber trash cans in the basement of the department's Downtown headquarters,
and evidence was locked inside a simple metal cage erected in a corner of the
HQ's outdoor garage. "Oh my God, what have I gotten myself into?" he recalls
thinking after the tour. "We had stuff everywhere. We were just like a lot of
agencies." For years he fought to get the situation cleaned up, and, in 2010,
the department finally moved its operation into its new facility. There are
secured vaults for guns and money and drugs, 2 commercial refrigeration units
for all manner of biological material, and aisles and aisles of blue plastic
tubs and white bankers' boxes branded with bar codes that help to track the
evidence stored inside. Applicants for Austin evidence jobs are vetted as
rigorously as police cadets; it slows down the process but ensures integrity,
says manager Gibbens. "I fought like hell to get where we are," Harris says. "I
knew it was a ticking time bomb, and we had to take care of it before it went
off."
Hillsboro Police Chief Tony Cain understands that intimately. Some eight years
ago, Cain's property manager stole money from evidence; she said she intended
to pay it back before anyone knew it was gone. She was fired. And Cain's "heart
was broken, not only from the criminal side of it, but also that this person
who we really trusted would steal from us," says the 18-year veteran. The
incident made Cain realize that he needed tighter security and better training
for employees handling evidence. "Probably most departments our size don't put
the same resources towards this, but we know the importance of it," he says.
And whenever the opportunity presents itself, he lets other Texas chiefs know
exactly how high the stakes are. "What makes it so important is that it's the
glue that binds us with the community. It's about trust," he says. "You do a
good job of catching the crook, but because of the system it sometimes takes [a
long time] to get adjudicated." Evidence is what makes that happen, he says.
"The evidence part is not the fun part; the fun part is arresting people. But
the evidence is about following rules and getting the community to trust us to
get them justice. If we don't do the dirty work, justice can't be done."
Regulating a Hodgepodge
For Cornelius Dupree, it took more than 30 years for justice to open his Texas
prison cell. In 1980, Dupree was sentenced to 75 years in prison for a rape and
robbery he did not commit. It wasn't until 2011 that he was finally exonerated
- precisely because Dallas County had maintained for more than 3 decades the
evidence that would set him free. Indeed, with 24 DNA exonerations since 2001,
Dallas County has freed the most wrongfully incarcerated men in the state that
leads the nation in exonerations. But exactly why Dallas saved all that
evidence, decades before there were any legal requirements to do so, is
something of a mystery. Certainly, in that regard Dallas is a state, and
perhaps a national, standout: nowhere else in the state does there exist such a
comprehensive library of evidence. And District Attorney Craig Watkins has been
widely applauded as a prosecutor unafraid to use that evidence to uncover past
mistakes. But even Watkins isn't entirely sure how or why he's been fortunate
enough to have the evidence in order to set right so many wrongs. "I don't
believe that when Dallas stored this evidence they thought of DNA advancing to
this level, but for whatever reason, we stored it and science has caught up,"
he says. Watkins suspects that the motive for keeping the evidence wasn't so
that the county would be able to review its own work for error, but so that it
could "protect the conviction."
Of course, evidence does both - and that's the point, he says. "We're
responsible for some of the most important acts forced upon human beings - the
taking of freedom or, in the worst cases in Texas, the taking of life." And
being sure evidence is protected is key to fostering certainty within the
criminal justice system, he says. "When the determination is made [that] there
may be mistakes in the process, we don't want to destroy our ability at some
future date to right that process." Watkins says the story of Dallas'
exonerations should serve as a cautionary tale for the rest of the state - and
that his county's experiences demonstrate the need for mandatory, standardized
evidence-handling policies throughout the state. "I think that's critical. You
go from one county to the next, and you have different policies," he says, and
there's "no excuse" at this point not to ensure compliance by all law
enforcement agencies. "Dallas is positioned to redefine prosecution because we
have the old evidence and we [are] able to advocate - and we will - for
statewide standards" and policies, not only for storage, but also for training
for employees tasked with ensuring evidence is properly retained and easily
retrieved.
That is music to Gregg County Commissioner Darryl Primo's ears; in his county -
as in many others - there are no written policies about who handles evidence,
or where or how it should be stored. An 18-year official in the Northeast Texas
county that includes the city of Longview, Primo has become passionate about
the problems of evidence storage and retention, an interest prompted by the
growing number of exonerees in Dallas County. The more he read about it, the
more he wondered whether his own county would be able to put its hands on key
evidence if the need arose to revisit a prosecution. He decided to find out; he
made calls across the county, to the D.A., to the sheriff, to the district
clerk. Did anyone have a policy in place regarding the storage and retention of
evidence? No, he was told. Well, then who was responsible for keeping evidence
in criminal cases, he wondered. The county had evidence stored in any number of
locations - "a locker at the sheriff's office, in a closet" for some items, he
says; biological evidence, he learned, was being stored in a small dorm fridge
kept by the district clerk. The materials were stored next to Cokes and candy
bars, and the refrigerator was accessible to all employees. Primo was stunned.
"It was a little old dorm fridge in her office," he recalls. "A defense lawyer
would disqualify that evidence in a heartbeat." The clerk has since moved
evidence to a locked refrigerator - but only after Primo made a stink about the
situation to a local newspaper. "She had no idea that if the evidence gets
contaminated that it is not admissible in court," he says, that she was
"sealing the fate of anyone who might need that evidence."
Primo has been pushing local officials - including judges, the sheriff, and the
D.A. - to take seriously the need to develop stringent polices about how
evidence will be handled and who will be responsible. So far he hasn't had much
success, he says. The county's "never had an incident" that would warrant that,
he says he's been told. In July 2012, he penned a letter to the county's 5
criminal court judges, again suggesting that the county "adopt a written policy
to govern" storage and preservation of criminal case evidence. To date he
hasn't gotten a single response. "I was very surprised," he says. "You would
think they'd care."
Primo doesn't think his county's experience is unique. "We're all over the
map," he says. "It's the law in the state of Texas that counties keep ...
evidence. That's the law legislators have passed ... but who is to keep it or
how it is to be kept is a hodgepodge." Responses to an informal questionnaire
emailed to Texas sheriffs and to the state's district and county clerks by the
Chronicle confirmed wide disparities in the way evidence is handled and stored.
Many clerks said they did not have any policies governing the storage of
criminal evidence, and many said those duties are handled by someone else in
the county. While many sheriffs responded that they do refrigerate biological
evidence, for example, many also responded that they do not segregate drugs
from other stored evidence. Primo believes strongly that the state must step in
and require that policies be written and standards be followed. Funding the
enterprise can be accomplished with an extra fee on court filings, he suggests.
"Nobody foresaw this coming," he says of the DNA revolution. "We can't undo
what we did in the past, but we can take steps now to ensure this stuff is
protected from now on for someone 20 years down the road."
Setting Things Right
The crime scene inside room 126 of the Sand and Sage motel in Odessa revealed
the aftermath of the violent and bloody death of Father Patrick Ryan, a
well-liked Catholic priest stationed in the tiny Panhandle town of Denver City.
2 years after the 1981 murder, James Harry Reyos, who was friendly with Ryan
and says he'd had a sexual encounter with the priest days before he was
murdered, was sentenced to 38 years in prison for Ryan's killing. Reyos is
adamant that he is innocent, and virtually everyone who knows the case well
agrees. Importantly, Reyos had a solid alibi for the time of the murder that
included a speeding ticket issued to him in New Mexico, hundreds of miles from
the scene of the crime. Unfortunately, Reyos, an alcoholic who has expressed
deep shame over his homosexuality - and the unexpected sexual encounter he had
with Ryan - later told law enforcement officials while in a drunken stupor that
he was "responsible" for the crime. That was considered a confession and was
apparently enough for jurors to ignore other concrete details that point to
Reyos' innocence. Reyos has long tried to clear his name and has had champions
along the way - notably both from law enforcement and from famed and
now-deceased Dallas Morning News investigative reporter Howard Swindle - thus
far without success.
Had the crime happened in Dallas County instead of Ector County, there is good
reason to believe that the quest to clear Reyos would already have been
successful. Ryan was found inside the motel room naked and badly beaten, his
hands bound tightly with a white sock. There was blood spatter and bloody
fingerprints throughout the motel room, open beer cans on a dresser, and
discarded cigarette butts littering the floor - all of it evidence that today
might be subjected to DNA testing that could definitively reveal the identity
of his killer. Unfortunately, none of that evidence still exists; Ector County
discarded it long ago, officials there told us in 2005. (See "Who Killed Father
Ryan?," June 17, 2005.)
Of course, it is hard to know exactly how many people may be serving sentences
for crimes they did not commit - and that worries Primo, as he struggles to get
his county to enact policies that might prevent that outcome. "The issue
becomes, how many other cases could have, or would have, been resolved in a
more just manner if the evidence had been retained?" he wonders. To think that
the state could be preventing miscarriages of justice but simply isn't because
of a lack of will or even a minimal amount of funding for training and
preservation, disturbs Primo. "To a person sitting in a jail cell who knows
they're innocent who wants testing, to find out that the county hasn't cared
about that evidence ... that's really sad."
Indeed, UT law professor Bill Allison knows well the power of long-held
evidence; he represented Michael Morton back in 1986 after Morton was accused -
falsely - of murdering his wife Christine at their home in Williamson County, a
crime for which Morton spent nearly 25 years behind bars before finally being
exonerated in 2012, thanks to DNA testing of evidence that had until recently
been ignored by the state. "We ought to be looking 5 to 10 years down the
road," toward scientific advancements and should be working toward them, he
says. "We ought to know what's coming." Dallas D.A. Watkins agrees. "Out of an
abundance of caution," he says, Texas needs to act now to ensure compliance
with evidence laws and to mandate proper training for all in law enforcement
who handle evidence. "Science will progress, and science allows us not only to
find mistakes that were made in the past and to make them right, but also to go
forward to ensure that we don't repeat these mistakes in the future."
(source: Austin Chronicle)
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