State com­mis­sion no­ti­fied about DNA lab Com­plaints

Au­thor­i­ties say group could or­der new test­ing

Austin American-Statesman - - FRONT PAGE - By Tony Plo­het­ski and Steven Krey­tak

As lawyers and judges weighed the pos­si­ble fall­out of com­plaints about the Austin po­lice crime lab, au­thor­i­ties said Thurs­day that they are alert­ing a state com­mis­sion about the al­le­ga­tions and that the group could or­der DNA retest­ing.

Travis County District At­tor­ney Rose­mary Lehm­berg said that she is not yet pre­pared to request ad­di­tional DNA test­ing for cur­rent or pre­vi­ous cases, but that do­ing so is in the purview of the Texas Foren­sic Sci­ence Com­mis­sion.

Lehm­berg and Po­lice Chief Art Acevedo also said they will jointly request that the com­mis­sion co­or­di­nate an out­side re­view of the lab or that they will seek an in­de­pen­dent con­sul­tant them­selves.

The move comes af­ter for­mer DNA an­a­lyst Ce­cily Hamil­ton lodged nu- mer­ous al­le­ga­tions about the lab, in­clud­ing that one em­ployee helped an­other pass pro­fi­ciency tests. Po­lice of­fi­cials dur­ing the spring in­ves­ti­gated her re­port and deemed the al­le­ga­tions un­founded.

They said the lab has un­der­gone nu­mer­ous au­dits by the FBI and a na­tional crime lab as­so­ci­a­tion and that no de­fi­cien­cies were found.

Hamil­ton re­signed from the depart­ment in May.

Lehm­berg said she thinks of­fi­cials might have been re­quired by law to no­tify the state foren­sics com­mis­sion about the com­plaint.

Ac­cord­ing to state law, the com­mis­sion in­ves­ti­gates “any al­le­ga­tion of pro­fes­sional neg­li­gence or mis­con­duct that would sub­stan­tially af­fect the in­tegrity of the re­sults of a foren­sic anal­y­sis.”

State law says that the com­mis­sion can or­der “ret­ro­spec­tive re-ex­am­i­na­tions” of foren­sic ev­i­dence.

Com­mis­sion Chair­man and Wil­liamson County District At­tor­ney

John Bradley said in­for­ma­tion sent to the group likely will be re­viewed by a screen­ing com­mit­tee made up of three of the nine com­mis­sion­ers. They will rec­om­mend how to pro­ceed.

Bradley said the com­mis­sion of­ten waits on re­view­ing com­plaints un­til in­de­pen­dent re­views are com­pleted.

“In gen­eral, the com­mis­sion wants to let these other pro­cesses play out so we have the most in­for­ma­tion avail­able,” he said. “What we don’t want to do is in­ter­fere with that in­ves­ti­ga­tion.”

Bradley said most of the com­plaints the com­mis­sion re­ceives in­volve sin­gle cases in which DNA or other foren­sic ev­i­dence was used — not broad com­plaints about a lab’s op­er­a­tions.

Dur­ing a news con­fer­ence at po­lice head­quar­ters Thurs­day, Lehm­berg and Acevedo said they have con­fi­dence in the lab and staff.

“I be­lieve that when it is all said and done, there won’t be any prob­lems,” Lehm­berg said.

Pros­e­cu­tors have be­gun no­ti­fy­ing hun­dreds of de­fense attorneys in­volved in about 2,000 cases, many of which are still pend­ing, in which DNA was a key part of the ev­i­dence.

Lehm­berg said pros­e­cu­tors are par­tic­u­larly concerned about cases that have al­ready re­sulted in con­vic­tions and will no­tify in­car­cer­ated de­fen­dants through letters to state pris­ons.

“If you no­tify a de­fense lawyer who had a case that is dis­posed of, that de­fense lawyer may feel like he or she has no re­spon­si­bil­ity to do any­thing with it,” she said.

At the Black­well-Thur­man Crim­i­nal Jus­tice Cen­ter, lawyers and judges were still try­ing to gauge the ef­fect of the al­le­ga­tions.

De­fense lawyer Jon Evans said re­gard­less of whether the is­sues at the DNA lab are proved to be sig­nif­i­cant, savvy de­fense lawyers would use them to chal­lenge the re­li­a­bil­ity of DNA ev­i­dence pre­sented in fu­ture crim­i­nal tri­als.

Evans said lawyers would seize upon the al­le­ga­tions dur­ing cross-ex­am­i­na­tion of DNA an­a­lysts in an at­tempt to dis­credit their tes­ti­mony.

“Even if the sci­ence is good,” Evans said, “if the process and pro­ce­dures are bad, (ju­rors) are go­ing to doubt the re­sults.”

State District Judge Mike Lynch said he fears that sig­nif­i­cant por­tions of fu­ture tri­als could be de­voted to tes­ti­mony about the re­li­a­bil­ity of DNA re­sults.

“You are go­ing to end up do­ing two tri­als in­stead of one,” Lynch said.

Judges have wide dis­cre­tion in rul­ing whether to al­low sci­en­tific ev­i­dence at trial. When ques­tions are raised about the va­lid­ity of sci­ence, they can ex­clude cer­tain tes­ti­mony or al­low its pre­sen­ta­tion — and rely on de­fense lawyers to show any short­com­ings — and let the jury make a con­clu­sion on its va­lid­ity.

State District Judge Julie Ko­curek said her ini­tial feel- ing about any is­sues at the Austin po­lice DNA lab is that “it would go to the weight” of the tes­ti­mony and would not be sig­nif­i­cant enough to keep the tes­ti­mony from a jury.

Ko­curek said that be­cause of the re­cently dis­closed is­sues at the lab­o­ra­tory, she agreed with a de­fense request to de­lay a sex­ual as­sault trial set for next week so the lawyer could re­view the hun­dreds of pages of doc­u­ments the district at­tor­ney’s of­fice has pro­vided him re­lated to the al­le­ga­tions.

The lawyer in that case — Stephen Orr — is also seek­ing for DNA re­sults to be kept from the jury in an­other sex­ual as­sault case. That sec­ond case is set for trial July 19.

On Mon­day, state District Judge Bob Perkins will hold a hear­ing on Orr’s mo­tion.

Ko­curek said she will monitor the re­sults of that hear­ing.

John Bradley says panel will rec­om­mend next step

Rose­mary Lehm­berg DA will seek out­side probe

Art Acevedo Chief has con­fi­dence in lab, staff.

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