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Advances in DNA Testing Could Put Thousands of Texas Cases in Legal Limbo

Five days after a Houston woman was raped by two men, she was driving down the street when she spotted 16-year-old Josiah Sutton. She thought she recognized his hat, and then immediately identified him as one of her attackers. Claiming his innocence, Sutton obligingly provided investigators blood and saliva samples — but months later, in July 1999, that DNA evidence would be the linchpin in his conviction.

The Houston Crime Lab, after looking at a mixed-DNA sample from semen in the woman's car, had concluded that the chances were 1 in 674,000 that another black person shared Sutton's DNA pattern. An analyst told jurors that “no two persons will have the same DNA except in the case of identical twins.” The message to jurors was unambiguous: DNA testing proved that Sutton committed the crime.

Except that it didn't. Sutton was exonerated in 2003, pardoned by Gov. Rick Perry and compensated $118,000 after a more sophisticated test revealed that, actually, the DNA profile examined could have belonged to as many as 1 in 16 black men.

Now, following a new advancement in mixed-DNA testing, Texas might begin seeing a wave of narratives like Sutton's sprout up in coming months and years.

Forensic science experts now worry that analysts may have been wrongly interpreting mixed-DNA test results like Sutton's for years, potentially leading to an untold number of wrongful convictions that, unlike Sutton's, haven't been caught. Already, the number of defendants affected is staggering: The Texas Department of Public Safety has identified almost 25,000 cases involving mixed DNA since 1999, the year today's standard technology was first used, that may need to be retested if the cases ended in convictions. These 25,000 cases do not include cases from many other local, non-DPS crime labs like Houston's.

And when those new test results come back, some of them could be dramatic. Previously, a prosecutor or expert witness may have told the jury that the odds are 1 in over a billion that the DNA in question belonged to someone other than the defendant; now, with the new method, that stat is more like 1 in less than 100. Which means that a growing mountain of defendants may be entitled to a retrial, if those previous faulty stats were used to convict them.

“We have to start identifying the cases and whittling the case list down,” Lynn Robitaille Garcia, general counsel at the Texas Forensic Science Commission, said during the group's meeting last week. “We have a duty to correct this.”

During the meeting, forensic experts and prosecutors discussed how they should even begin this massive undertaking. They agreed the first step would be to review DNA testing protocols at every crime lab in the state to make sure that, at least right now, all current cases are being tested correctly. But as for the thousands of cases that have already been adjudicated, Garcia said they may have to ask the governor for financial help. “There is no question that this cannot be done without additional resources,” she said.

Galveston County District Attorney Jack Roady said he has put all mixed-DNA cases pending trial on hold in order to send them back to the lab for retesting. A few weeks ago, Roady was among the first in the state to begin receiving the new test results; in one murder case, the likelihood that the DNA belonged to someone other than the defendant dropped from 1 in 1.4 billion to 1 in 38. (The case was not dependent on DNA, however, because defense attorneys argued he acted in self-defense.) “That was the first evidence that we had — and a lot of people across the state had — that this was a significant issue,” Roady told the Houston Press.

Given Galveston County's smaller size, the commission called it a “guinea pig" tasked with finding the fastest method of identifying which of its 1,000 retroactive mixed-DNA cases resulted in convictions. Larger jurisdictions, like Harris County, could then adopt that method. Inger Chandler with the Harris County District Attorney's Office's conviction integrity unit expects that at least a few thousand cases since 1999 will be affected, though prosecutors don't yet have a comprehensive list. More than five hundred such cases, however, are pending trial, and Chandler says her office has already individually notified all those defendants about the new testing. “We already knew that manual labor would be a part of this,” she said. “Once we say, 'This was done wrong,' every single defendant affected is entitled to know.”

Chandler is part of a statewide panel that the FSC has given three core tasks. After figuring out which of the 25,000 or more mixed-DNA cases resulted in convictions, they'll have to find a way to notify all those defendants. Then they'll have to help all of those defendants find lawyers to file writs; and then they'll have to make sure there are enough resources to prepare prosecutors to handle the cascade of appeals. This is a case in which, for once, defense attorneys, prosecutors, forensic scientists, innocence projects and the courts are all working toward the same goal.

During an interview with the Press, Chandler said that, on a daily basis, she's constantly conflicted about where to begin attacking the problem. Should they immediately start reinterpreting every case involving mixed DNA that has ever been tested? Should they wait until defendants respond to the notifications and ask for a new test themselves? “How do we proceed from here?” she said. “It's so intimidating to wrap your mind around how you can accomplish everything that needs to be done efficiently and effectively and fairly. Because at the end of the day, if even one person was wrongfully convicted based on mixture evidence, that is a horrible travesty.”

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