Lost and Improperly Destroyed Evidence Thwarts Post-Conviction DNA Testing

by Matt Clarke

While crime labs across the country have been in the news for improper testing of forensic evidence in criminal cases, the problem with misplaced and improperly destroyed evidence is much more widespread.

Not just crime labs, but local police departments and sheriff’s offices often store evidence in a haphazard fashion that makes retrieving it virtually impossible. Joseph Latta, executive director of the International Association for Property and Evidence, who retired after 31 years as a Burbank, California police officer, said there is “no consistency anywhere you look.” This is because it is police officials who are in charge of evidence and the police are trained to “chase bad guys,” not to store evidence used in criminal prosecutions.

“It doesn’t matter whether you’re in Houston or Corpus Christi, Albuquerque or L.A.,” Latta said. “We may end up with the stuff, but we don’t know how to take care of it.”

Opening most police evidence rooms makes “you just want to cry,” stated Rebecca Brown, an Innocence Project policy advisor who is working with Latta and others in a U.S. Department of Justice-funded group to develop a set of national standards for evidence handling and storage. “Evidence rooms have often been ... I wouldn’t say forgotten, but not resource-heavy,” she said. For example, Brown noted that Texas “does have good statutes but the question is how [the statutes are] being translated into practice.”

John Vasquez worked in evidence and property management for 25 years, including stints with the military and police departments in Fort Worth and Wichita Falls, Texas, before starting his own evidence-control consulting business. He noted that property and evidence managers and technicians are often minimally trained on how to handle and store evidence, and are poorly paid. According to Vasquez, the loss or improper destruction of evidence is “way more common than you think.”

Texas death row prisoner Henry W. Skinner knows that all too well. His attorneys fought prosecutors for over a decade, seeking to have DNA testing performed on evidence in his 1993 triple-homicide case. When a court finally agreed to allow the testing of a bloody windbreaker recovered from the crime scene that looked like one belonging to a relative of the victims, prosecutors announced it could not be found.

“According to the state, every other piece of evidence in this case has been preserved,” said Skinner’s attorney, Rob Owen. “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.”

DNA tests were conducted on other pieces of evidence in the case, none of which were as critical as the windbreaker. In July 2014, a state district court held that Skinner still would have been convicted based on the DNA test results. He remains on death row.

Vasquez said it is common for evidence to be logged into one area of a storage facility then moved to another area without the change of location being logged, or simply overlooked when a facility’s tracking system is upgraded. This means that the evidence remains at the storage facility but cannot be found, which can be just as harmful to a defendant trying to prove their innocence than if the evidence had been destroyed.

North Carolina prisoner Joseph Sledge, 70, was released from prison in February 2015 after serving 36 years for a 1978 double murder. For decades he had sought DNA testing of the crime scene evidence, but it could not be located. Then, in 2012, while cleaning an evidence vault, a clerk climbed a ladder and found an envelope on a high shelf that contained forensic evidence from Sledge’s trial; DNA testing of the evidence led to his exoneration.

“I understand the shelf was high, but there was a ladder,” remarked one of his attorneys, Christine Mumma.

There are also situations where law enforcement agencies have evidence in criminal cases and know where it is, but simply don’t test it. According to the U.S. Department of Justice an estimated 400,000 rape kits in police evidence rooms nationwide have not been tested, often due to insufficient funding. Some are over 20 years old. The Obama administration has proposed a 2015 fiscal year budget that includes $41 million for testing rape kits.

“DNA analysis has been revolutionary in helping to catch criminals and prevent crimes from occurring in the first place, but this evidence does us no good if it remains untested and sits on the shelf in a lab somewhere,” stated U.S. Rep. Steve Cohen.

Following a series of DNA exonerations in Texas, in 2011 the state legislature enacted laws extending the length of time that biological evidence must be preserved and instructing a group of stakeholders to develop guidelines and best practices for the handling and storage of evidence. Unfortunately, many Texas law enforcement officials view the legislation as an unfunded mandate, and implementation is spotty.

The Austin police department maintains a 62,000-square-foot warehouse that cost about $3.2 million to purchase and renovate, according to evidence manager James Gibbons. It stores around 600,000 items and receives approximately 60,000 new pieces of evidence each year. The annual operating budget for the facility, which is a model example of proper evidence storage, is close to $1.1 million.

At the other end of the spectrum is the disorder described by Vasquez, which is the norm for most law enforcement agencies: evidence tossed haphazardly into a closet with no written system for tracking where it is or what case it relates to. Vasquez said he had seen a hand grenade stored in a glass jar in a locker accessible to county jail prisoners, a human skull stored without packaging or identifying paperwork, and leaking boxes of corrosive chemicals that damaged other boxes of evidence.

Ed Harris, the Austin police department’s chief of field support operations, said that when he first toured the evidence facility over a decade ago there were rubber trash cans full of confiscated firearms in the basement and some evidence was stored in a metal cage located in a corner of the department’s outdoor garage.

“We had stuff everywhere. We were like a lot of agencies,” Harris stated. “I fought like hell to get where we are. I knew it was a ticking time bomb, and we had to take care of it before it went off.”

Although Austin’s progress is laudable, it is the exception rather than the rule. When Gregg County Commissioner Darryl Primo investigated his county’s handling of evidence, he discovered there were no written policies. Taking the initiative to call the district attorney, sheriff and district clerk, Primo found that evidence was stored in various locations, including “a locker in the sheriff’s office, in a closet” and a small refrigerator in the district clerk’s office – which was accessible to court employees and also held their food and drinks. Primo tried to get the evidence storage more organized but was ignored until he went to a local newspaper.

Meanwhile, former Dallas County District Attorney Craig Watkins was known for his willingness to use DNA testing of preserved evidence to evaluate prisoners’ claims of innocence. Since 2001, his policies resulted in the release of 24 prisoners.

“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 since caught up,” said Watkins. He suspects the motive for keeping the evidence was to “protect the conviction,” though it can also exonerate the innocent. Evidence does both, and that is the point.

“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,” Watkins noted. Therefore, “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.”

This is especially true given that DNA science has progressed to the point where forensic analysis of “touch DNA” can identify a person who merely handles an object.

Sources: Austin Chronicle, www.newsobserver.com, www.businesssinsider.com, Huffington Post

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