TEXAS FORENSIC SCIENCE COMMISSION Justice Through Science

TEXAS FORENSIC SCIENCE COMMISSION Justice Through Science FINAL AUDIT REPORT FOR AUSTIN POLICE DEPARTMENT FORENSIC SERVICES DIVISION DNA SECTION JULY 8, 2016 TABLE OF CONTENTS SUMMARY OF APPLICABLE STATUTORY AUTHORITY…………………………………1 Legislative Background and Jurisdiction………………………………………………….1 Investigative Jurisdiction.........................................................................................1 Accreditation Jurisdiction………………………………………………………....2 Important Limitations on the Commission’s Authority…………………………...2 BACKGROUND………………………………………………………………………………….3 DNA Mixture Interpretation Basics………………………………………………………3 The Technical Issue in a Nutshell………………………………………………………...7 Commission Statewide Review: Training, Protocol and Case Sample Reviews…......…10 ISSUES SPECIFIC TO THE APD DNA LAB………………………………………………….12 Observations Related to DNA Mixture Interpretation…………………………………...12 Establishment & Continuation of Quantification-Based Stochastic Threshold….12 Validation Studies Lacked Data to Support Quant-Based Threshold……………14 CPI Decisions Driven by the Known Profile (Suspect or Victim)………………15 Unclear Use of Protocol Deviation………………………………………………16 Significance of Observations Related to DNA Mixture Interpretation………….17 Contamination Events……………………………………………………………………18 Use of AP Reagent Outside Manufacturer’s Instructions………………………………..22 Leadership and Training Issues………………………………………………………….23 RELIANCE ON ACCREDITATION AND SWGDAM………………………………………..26 RECOMMENDATIONS………………………………………………………………………..29 RECOGNITION………………………………………………………………………………...32 I. SUMMARY OF APPLICABLE STATUTORY AUTHORITY A. Legislative Background and Jurisdiction The Texas Legislature created the Texas Forensic Science Commission (“Commission”) during the 79th Legislative Session by passing House Bill 1068 (the “Act”). The Act amended the Texas Code of Criminal Procedure to add Article 38.01, which describes the composition and authority of the Commission.1 During the 83rd and 84th Sessions, the Legislature further amended the Code of Criminal Procedure to clarify the Commission’s jurisdictional authority.2 The Commission has nine members appointed by the Governor of Texas. Seven commissioners are scientists and two are attorneys (one prosecutor nominated by the Texas District and County Attorney’s Association, and one defense attorney nominated by the Texas Criminal Defense Lawyer’s Association). The Commission’s Presiding Officer is Dr. Vincent J.M. Di Maio, as designated by the Governor. 1. Investigative Jurisdiction Texas law requires the Commission to “investigate, in a timely manner, any allegation of professional negligence or professional misconduct that would substantially affect the integrity of the results of a forensic analysis conducted by an accredited laboratory, facility or entity.”3 The Act also requires the Commission to: (1) implement a reporting system through which accredited laboratories, facilities or entities may report professional negligence or professional 1 th See Act of May 30, 2005, 79 Leg., R.S., ch. 1224, § 1, 2005. 2 rd th See Acts 2013, 83 Leg., ch. 782 (S.B.1238), §§ 1 to 4, eff. June 14, 2013; Acts 2015, 84 Leg., ch. 1276 (S.B.1287), §§ 1 to 7, eff. September 1, 2015, (except TEX. CODE CRIM. PROC. art. 38.01 § 4-a(b) which takes effect January 1, 2019). 3 TEX. CODE CRIM. PROC. art. 38.01 § 4(a)(3). misconduct; and (2) require all laboratories, facilities or entities that conduct forensic analyses to report professional negligence or misconduct to the Commission.4 2. Accreditation Jurisdiction The Commission is charged with accrediting crime laboratories that conduct forensic analyses of physical evidence for use in criminal proceedings.5 The Commission’s decision to recognize a particular laboratory as accredited is based upon the laboratory’s accreditation status with certain approved national accrediting bodies.6 Texas law exempts some forensic disciplines from the accreditation requirement—either by statute, by administrative rule, or by determination of the Commission.7 Unless a forensic analysis is accredited or falls under an exemption, the evidence is not admissible in a criminal action in Texas courts.8 3. Important Limitations on the Commission’s Authority The Commission’s authority contains important statutory limitations. For example, no finding by the Commission constitutes a comment upon the guilt or innocence of any individual.9 The Commission’s written reports are not admissible in civil or criminal actions.10 The Commission also does not have the authority to issue fines or administrative penalties against any individual, laboratory or entity. The information the Commission receives during the course of any investigation is dependent upon the willingness of stakeholders to submit relevant documents and respond to questions posed. The information gathered in this report has not been 4 Id. at §§ 4(a)(1) and 4(a)(2). 5 TEX. CODE CRIM. PROC. art. 38.01 § 4-d(b). 6 See 37 TEX. ADMIN. CODE Pt. 15 § 651.4 7 See TEX. CODE CRIM. PROC. art. 38.35 § (a)(4); 37 TEX. ADMIN. CODE §§ 651.5 - 651.7; and TEX. CODE CRIM. PROC. art. 38.01 § 4-d(c). 8 See TEX. CODE CRIM. PROC. art. 38.35 § (d)(1). 9 See TEX. CODE CRIM. PROC. 38.01 at § 4(g). 10 Id. at § 11. 2 subjected to the standards for admission of evidence in a courtroom. For example, no individual testified under oath, was limited by either the Texas or Federal Rules of Evidence (e.g., against the admission of hearsay) or was subjected to cross-examination under a judge’s supervision. II. BACKGROUND This report contains observations and recommendations of the Commission regarding the Austin Police Department Forensic Science Division’s DNA Section (“APD DNA Lab”) resulting from a May 2016 site audit conducted by the Commission and the American Society of Crime Laboratory Directors/Laboratory Accreditation Board (“ASCLD/LAB”). Lynn Garcia, the Commission’s General Counsel and Dr. Bruce Budowle, Director of the University of North Texas Health Science Center’s Center for Human Identification represented the Commission at the audit. (See Budowle CV at Exhibit A.) D. Jody Koehler, an ASCLD/LAB Assessor and the Manager of the DNA Section of the Department of Public Safety’s Austin Laboratory represented ASCLD/LAB. (See Koehler CV at Exhibit B.) Because many of the issues identified during the audit stemmed from a broader statewide review of DNA mixture interpretation protocols and casework conducted by the Commission in December 2015, this report begins with basic educational information on DNA mixtures. It also provides historical background on developments statewide from May 2015 to the present before addressing the particular issues of concern in the APD DNA Lab. A. DNA Mixture Interpretation Basics The purpose of this section is to educate the criminal justice community (including non- scientists) on issues in DNA mixture interpretation. It favors simplicity over comprehensive technical and scientific detail. For a more thorough and scientifically rigorous explanation of 3 various considerations in DNA mixture interpretation, the Commission commends the reader’s attention to the Reading List attached to this report as Exhibit C. When a laboratory analyzes crime scene evidence to determine whether any DNA is present and whether it can be linked to a particular individual, it typically answers four important questions: 1. Is biological evidence present? 2. Could human DNA be extracted from the evidence? 3. If so, are the data of sufficient quality to enable reliable interpretation regarding who may have contributed, or who did not contribute the DNA to that piece of evidence? 4. If the known person cannot be excluded, what statistical significance can be placed on the possibility he or she actually contributed the DNA to that piece of evidence? Depending on the case facts, the answer to the third and fourth questions may be critical to a jury’s perception of innocence or guilt. For example, in a sexual assault where the assailant is unknown to the victim and little other physical evidence exists, the laboratory’s conclusions regarding the relative strength of an association are extremely important. If the laboratory issues a report stating that 1 in 364 quadrillion people would be expected to have the same DNA profile as reported for a particular piece of evidence, such a massive statistic exceeding the inverse of the world’s population provides a strong signal to the jury that it was most likely the suspect who contributed the DNA. But what about a statistic of 1 in 3,640 or 1 in 364 or 1 in 36? A prosecutor could attempt to use any of these statistics to persuade the jury that the suspect contributed the DNA to the evidence. However, as the statistical strength of the “match” decreases, the jury may be left with a weaker and weaker impression of whether the suspect’s DNA is the only explanation for the evidence. Supportable statistics that do not overstate the strength of the evidentiary data are critical to the fair administration of justice. Historically, the 4 forensic DNA community has taken the view that understating the evidentiary data is acceptable and indeed preferable to overstating the significance of the results. Notwithstanding this cautionary position, laboratories should strive not to ignore meaningful evidentiary data when available and considered reliable and suitable for inclusion. Laboratories calculate DNA statistics using commonly accepted statistical methods.11 A laboratory selects which statistical method to use based on its analysts’ ability

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