Delay in Testing Delays Justice for Victims and Wrongly Accused

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair


In a June 4, 2011 article titled “Justice Delayed in Rape Cases,” Houston Chronicle staff writer Anita Hassan reported that five years ago the Houston Police Department crime lab had more than 4,000 “rape kits” sitting untested in its “property room freezer.” Some of these cases date back to the 1990s, according to Hassan, and more of them are still sitting idle in neglect waiting to be tested. The crime lab has only tested “200 cases” over the last five years, citing “a lack of manpower” in getting the job done.


State Sen. John Whitmire, D-Houston, did not mince words with the newspaper, saying: “I’m outraged on behalf of the sexual assault victims who have had a sexual assault committed and an invasive procedure, that being the rape kit, and then learn that no one has used it in an investigation.”


HPD crime lab director Irma Rios has a long history of trying to explain away the ineptitude and incompetence of the lab (here, here, here, and here). She told the Chronicle that the snail’s pace of rape-kit testing is a “capacity issue. We need enough people to test what’s incoming on a daily basis and now we have to look at the case of old kits.”


Anytime a public official starts talking about the “lack of manpower” excuse, it’s generally a cover for incompetence. Mayor Annise Parker has either terminated or furloughed thousands of city workers and city government is finding out that it can do just as much or more with fewer workers. Official pleas of lack of resources or manpower as an excuse too often means there are too many workers who do not know how to utilize existing resources. Think about this:


The Chronicle reported that last October the HPD crime lab began using a “$1.1 million grant from the National Institute of Justice” to deal with the untested rape kit dilemma. HPD hired 10 additional staff members who had to be trained to test the evidence, Rios explained to the newspaper. “Our goal was to train them by the first quarter of this year, and we’ve already hired and trained them all,” the crime lab director said. “So we’re within our goal.”



Really! With ten new staffers and its previous staff the crime lab managed to test only a fraction of the approximately 200 cases from 2001 and 2002 with Rios saying that testing will begin soon on an additional 2,300 cases with priority being given to those cases in which the statute of limitations is nearing. Texas law provides a 10 year statute of limitation in sexual assault cases, absent any DNA from the perpetrator.


Harris County criminal defense attorneys are particularly concerned about the untested rape kit issue for two reasons. First, as criminal defense attorney Mark Hochglaube explained to the Chronicle, the backlog of untested rape kits slow the results of any kind of test from the HPD crime which can lead to delays in court proceedings. “There is no proper course of action, you just have to sit and wait,” Hochglaube told the newspaper. “It sucks to have a client sitting in jail telling you they’re innocent and asking you when they’re going to get their tests done and you don’t have an answer.” The attorney, a former prosecutor, cited one of his cases that took more than a year for the crime lab to test a rape kit.


Second, attorneys who believe their clients were wrongly convicted in sexual assault cases await test results they hope will free them. These clients were tried and convicted based solely on victim identification which is all that is needed in Texas to secure a sexual assault conviction. The New York-based Innocence Project reports that 75% of DNA exonerations involved eyewitness misidentification. According to Barry Scheck, who co-founded the Innocence Project in 1992, says that DNA exonerations generally involve sexual assault cases in which a black man is wrongfully identified of raping a white victim. It is conceivable that within the nearly 4,000 untested rape kits in the HPD crime lab lies evidence that will exonerate some wrongfully convicted defendants who have spent years in prison while the real assailant remained free to attack other victims.


The National Institute of Justice, United States Department of Justice, recently issued a report titled “The Road Ahead: Unanalyzed Evidence in Sexual Assault Cases” which was authored by Nancy Ritter. This report informs us that the untested rape kits, known as sexual assault kits (SAKs), is not a phenomenon confined to HPD’s crime lab: Dallas has 12,000 untested SAKs while Detroit and Los Angeles have 10,500 and 10,000 respectively. A survey by the NIJ found that 4 of the nation’s top ten law enforcement agencies does not “have a computerized system for tracking forensic evidence, either in their inventory or after it is sent to the crime lab.” The Los Angeles County Sheriff’s Department still uses “handwritten evidence tags and log books” to keep track of its evidence.


Shockingly NIJ found after a survey of more than 2,000 law enforcement agencies across the country that “18 percent of unsolved sexual assaults that occurred between 2002 and 2007 contained forensic evidence that was still in police custody (not submitted to a crime lab for analysis).” These agencies explained two common reasons why such evidence was not sent to the crime lab for testing: 44 percent said evidence was not sent because no suspect had been identified while another 15 percent because analysis of the evidence had not been requested by the prosecutor.


This haphazard process can lead to disturbing outcomes. For example, according to NIJ, Dallas recently discovered 12,000 unsolved cases of sexual assault that occurred between 1981 and 1995 in which many did not even include a complete SAK. Dallas officials also cite a lack of resources to explain why many of these “cold cases” will not be tested; that only “unsolved stranger rapes” will be tested which represents approximately 20 to 25 percent of the 12,000 cases. Los Angeles officials, on the other hand, approached their newly discovered 10,000 untested sexual assault cases differently. City and law enforcement officials elected to “outsource” the cases to private labs based on the following priority criteria: 1) stranger and unknown suspect sexual assaults and cases in which the alleged perpetrator was in a position of trust; 2) acquaintance rape; 3) cases previously rejected by the district attorney’s office; and 4) cases in which there is some question about whether a crime occurred.


While lack of resources is often used as an excuse to cover incompetence, it really can be a significant reason why law enforcement crime labs lag behind in forensic testing. Take the Georgia Bureau of Investigation’s crime lab, for example. In 2008 alone the GIB lost 10 of their 22 trained professionals (four lab technicians and six DNA analysts, according to NIJ) while in 2009 the bureau lost seven of their 23 trained professionals, including five DNA analysts. These forensic scientists left for better paying jobs at the federal level, in the private sector, or in other local and state labs. A 2007 NIJ survey underscored the lack of resources issue: 90 percent of the 148 crime labs surveyed said they would not have sufficient funding to continue their operations without federal grant money.


With the HPD crime lab’s longstanding reputation for ineptitude, we suggest that HPD follow the lead of the Los Angeles police and sheriff’s departments who created “Fast Track Forensics”—a pilot study of sexual assault cases involving an unknown offender which are processed normally while a few swabs of the SAKs are taken and submitted to the U.S. Department of Justice’s lab for immediate analysis. This process takes but three days to complete and the results are then uploaded into CODIS for a DNA match search, and thus far, “there have been a number of ‘hits,’ with particularly good results from salvia testing.”


The grant money NIJ gave last October 27, 2010 to the HPD crime lab was part of the federal agency’s efforts to “identify solutions” for the backlog of untested SAKs. NIJ said that “in phase 1 of these ‘action research’ projects, [HPD’s crime lab] must “form a team to include a criminal justice researcher and representatives from the police department, crime lab, prosecutor’s office and a community-based victim services organization.”


We have no way of knowing if the HPD crime lab has yet implemented an “action research” project as mandated by NIJ as a condition of funding. Sen. Whitmire is in a position to make that determination, especially after the public shock he has expressed over the HPD crime lab backlog in SAKs. “If the city says we don’t have money, my answer to them is find the money,” he told the Chronicle. “These are not buildings and potholes and swimming pools. These are human beings who have been assaulted, and they submitted to a … very uncomfortable test, and then they found out months later—years later—that it’s never been used.”


We share the outspoken senator’s outrage just as we share attorney Hochglaube’s concern that “justice delayed is justice denied.” The HPD crime lab needs to get its head out of the “lack of resources” sand and utilized NIJ’s funding to aggressively attack the untested SAK problem. It is unconscionable that the crime lab has tested only 200 SAKs over the last five years and no more than a handful since it received the NIJ funding eight months ago.


Has the crime lab even explored the “Fast Track Forensic” program as a possible “solution,” which NIJ has mandated that the crime lab do: find solutions, not excuses. The excuse horse is dead. It’s time for the HPD crime lab to get the job done, even if that means fewer “coffee breaks” and extra hours of work. The importance and potential tragedy of untested SAKs are too great to minimize with a continued pattern of excuses.


By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization