By Chris Lane
By Jeff Balke
By Aaron Reiss
By Angelica Leicht
By Dianna Wray
By Aaron Reiss
By Camilo Smith
By Craig Malisow
The justice system, the public has been forced to recognize, makes mistakes. And lawmakers, judges and attorneys in some parts of the country are trying to correct them. New York and Illinois passed the first laws allowing inmates to petition for DNA examinations of relevant biological evidence that was not tested at the time of trial. Arizona, Florida, Oklahoma and Tennessee recently followed suit. And in Austin, District Attorney Ronnie Earle has created a panel of lawyers and police officers to review 400 murder and rape cases tried before 1996, when DNA testing entered more widespread use.
Meanwhile, it's business as usual in Harris County, where the government is throwing the baby out with the bathwater. Area defense attorneys say their clients may not be able to take advantage of new DNA technology because the biological evidence from the crime no longer exists. "There have been cases where I've specifically gone and looked for the evidence to do DNA testing and it has been destroyed by the state," says Randy Schaffer, the attorney who helped free Butler, Byrd and Robinson.
The worst part: It's perfectly legal. Semen, swabs, bloody clothing, urine, rape kits -- all the biological evidence from these pre-DNA sexual assault cases went to the storage facilities of the district clerk's office after trial. According to state law, the clerk's office is required to keep evidence for only two years after final convictions in noncapital felonies where a defendant receives a sentence of more than five years. In the case of a felony or misdemeanor with a term of less than five years, evidence can be destroyed on the first anniversary of the conviction. This doesn't sit well with criminal defense attorneys. Kevin Byrd was convicted in 1985, but DNA testing didn't prove his innocence until 12 years later.
Criminal courts manager Crystal Milner says the district clerk's office doesn't dispose of evidence immediately upon its legal destruction date but when storage space becomes an issue. "There's not a problem with space" right now, she says, "but we do try to -- every couple of years -- destroy evidence." Last year, according to Milner, her office destroyed 1,060 pounds of evidence in October and 1,680 pounds in December.
When the office sees the need for housekeeping, the exhibits clerk compiles an inventory of evidence that is eligible for destruction. This inventory is sent to the district attorney's office for approval. Prosecutors may request that the evidence from certain cases be kept in storage past their legal retention periods, but D.A.-elect Chuck Rosenthal says there is no specific plan in place to save biological evidence from pre-DNA-era trials. The chief prosecutor in the convicting court makes the call on a case-by-case basis. Trial bureau chief Keno Henderson can think of no example in which the D.A.'s office made efforts to save untested biological evidence.
Defense attorneys are not given notice of the destruction of evidence in their clients' cases.
"What they're doing is legal," but "that's hardly the issue," says defense attorney Keith Hampton. "Is this going to serve the purposes of ensuring the reliability of verdicts and avoiding miscarriages of justice in the future?" In his role as legislative committee chair of the Texas Criminal Defense Lawyers Association, Hampton is working with the staff of state Senator Rodney Ellis to hammer out a bill on postconviction DNA testing to be presented to the Texas legislature in the upcoming session. "We're going to require that the D.A.'s preserve all DNA and biological evidence until a convicted person is no longer incarcerated," says Ellis.
"Philosophically, I don't have any problem with the stuff being retained. It becomes a practical problem," says District Attorney Johnny Holmes, who retires at the end of the year. "Ultimately it's the taxpayers' burden. There's got to be a significant fiscal note on that legislation."
Holmes agrees, though, that some evidence in pre-DNA cases should be saved despite the cost. "Where there are samples available that if tested could show whether or not a person is guilty or innocent but we didn't have it available at trial time because of the fact that there was no DNA testing available," Holmes says, "I don't think that should be destroyed." But it's not as if the D.A. kept a close eye on the matter. "I've never sat down with anybody and talked about what we're talking about," he says. "That kind of grunt work was left to the supervisors."
Hampton, on the other hand, thinks that grunt work is very important. "If they're destroying evidence, that ought to send cold chills down the back of anybody who appreciates the unexpectedly high numbers of innocent people who are probably in prisons and jails," he says. "DNA is the Hope Diamond of evidence. That's the stuff you don't throw away."