Future Forum: Guilt, Innocence, and the Death Penalty 
Why Can’t Steven Phillips Get a DNA Test?
In prisons all across Texas, convicted felons are asking for access to forensic evidence they insist could prove their innocence. In many cases, the requests are frivolous. But in those where legitimate questions of guilt still exist, the pursuit of justice is frequently derailed. And no one can explain why.
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Most of the time with PCR testing, thirteen loci show up, and there’s either a match or a non-match. The problems come in a third area, when only six or eight or twelve can be read, usually because the sample is a hard-to-analyze mixture, such as one with more than two profiles. Unfortunately, whether there is in fact a gray area can also be a matter of interpretation. Giles says labs have been known to “call” matches at loci when they really shouldn’t. “Sometimes the loci don’t meet the lab’s own standards for reporting, but the analyst still calls them. He’s speculating. It’s usually because of poor training.” Giles says that analysts will also force the data for other reasons. “I think analysts at some labs, without training and under a lot of pressure to get something done—to get it to the DA’s office—are really squeezing the data, rerunning the tests, saying, ‘I’ve got to get this to work. I think I can call this.’ You have to go by your protocols. You can’t be pressured.”
In criminal cases, it’s the analyst who goes to court to give testimony in front of a jury of nonscientists, and here, says Giles, who has testified some two hundred times, the expert has to be cautious. “The idea is to try to be as conservative as you can in interpretation,” he says. “If you have some loci that match but others that can’t be read, it might be best to say the suspect ‘can’t be excluded,’ which is a very conservative way of saying, ‘His type is present.’ But you have to be careful about what you say on the stand. Some analysts get caught up in being an expert and interpret everything as being clear even when it’s not. You can’t overinterpret the data.”
IF YOU WANT TO MAKE a forensic scientist wince—particularly one who has proselytized about the power and accuracy of DNA—just mention three other letters: HPD. DNA, for all the crimes it has solved, is still struggling to overcome the damage its reputation received from the Houston Police Department Crime Laboratory, which was closed in 2002. An independent audit of the lab’s DNA section had uncovered a mess, the worst investigators had ever seen: analysts who didn’t know what they were doing, supervisors who knew even less, no quality-control system, and very few standard operating procedures. Other HPD crime lab sections had issues too—there were problems in the ballistics and toxicology labs, and analysts in the controlled-substances section were actually making up results—but it was the DNA section that caused the most alarm, casting doubt on thousands of DNA tests done over the years in Harris County, which has sent more men than any other county in the U.S. to death row. Retests in cases in which DNA had played a part began almost immediately. One of the first only seemed to confirm just how screwed-up things were: Josiah Sutton, who had been convicted of rape in 1998 at age sixteen and given 25 years largely on the basis of DNA evidence, was exonerated by a new test. “Worst Crime Lab in the Country,” read the headline in the New York Times the next day.
There were a lot of reasons for the Houston crime lab disaster, but most had to do with people, not science. James Bolding, who would become the scapegoat, was a crime lab drug chemist who was given the go-ahead to start the DNA section in 1989, but he had a limited budget to pay and train analysts. Of the first five, hired by 1991, only one had taken all of the college classes necessary for a basic understanding of DNA, such as statistics, genetics, and molecular biology. Bolding himself attended two FBI courses on DNA testing but never did the sample analyses required to get full course credit. Indeed, the head of the DNA section never once actually worked on a DNA sample at the crime lab. As DNA technology changed through the nineties, the HPD’s analysts got no training in the newer methods. They were overworked and inconsistently following protocols. And they learned some bad habits. Analysts didn’t know how to handle mixtures—how to isolate and identify the sperm from a vaginal swab, for example, and then how to analyze the results. In the Sutton case, the analyst claimed to have found the suspect’s profile in a car-seat stain and also in a vaginal swab; the profile was so unique to Sutton, she wrote in her report, that it could be expected to occur in only “one out of 694,000 people among the black population.” In fact, Sutton’s profile wasn’t in the car-seat stain at all, and although it was consistent with the one found in the swab, so were the profiles of one in every 15 black men, not one in every 694,000. It was a serious statistical error.
The lab was never inspected by an outside agency, nor did it aim for voluntary accreditation, both of which are required to meet FBI standards. In 1996 a man named Lynn Jones was excluded as a rape suspect by a DNA test after spending nine months in jail waiting for the results. During that time, three confused analysts had passed the sample to one another. In response, the HPD audited the section and found little supervision and no case-management system. Still, department higher-ups did nothing to fix things, which was not surprising, given their attitude about more-obvious problems. The next year, the HPD moved into a 26-story, sixties-era downtown skyscraper with a bad roof. When it rained, water leaked onto the top floor, where several sections of the crime lab, including DNA, sat. The leaks were never patched, and in May 2001 Tropical Storm Allison poured water through the roof, soaking DNA evidence in some three dozen murder and rape cases; bloody water was seen seeping out of boxes.
Elizabeth Johnson, a molecular biologist who set up and ran the DNA lab at the Harris County Medical Examiner’s office from 1992 to 1996, was one of the HPD’s earliest critics. “It always boils down to the people,” she says. “They have to be honest and careful. At HPD, they were ignorant and incompetent. Plus, the city allowed it to go on. Nobody slapped anyone’s hands—and this was a validation to them.” She says that analysts at the crime lab had a stubborn, cop-in-a-lab-coat law-enforcement mentality. “There was this ingrained bias—‘The guy is guilty,’” she says, “and if the data was anywhere close, and sometimes even when it wasn’t close, they were going to push it through.” She saves special scorn for Bolding, who, it turned out, had a direct role in the second exoneration to come out of the HPD mess. George Rodriguez had been convicted of rape in 1987 after Bolding, then the head of the serology section, testified that blood-typing tests on crime scene semen proved another suspect in the case could not have been the donor; therefore, prosecutors said, it had to have been Rodriguez. The jury agreed and gave Rodriguez sixty years. DNA testing in 2004 of a crime scene hair incriminated that other suspect, and Rodriguez was released. A 2004 panel of experts said Bolding’s 1987 testimony contained “egregious misstatements.”
Prosecutors, judges, and defense attorneys were also to blame for the false convictions. “Everyone in the system was ignorant about DNA evidence and how to spot sloppy work,” says Marie Munier, the Harris County assistant DA in charge of all the retests. Johnson puts some of the blame on defense attorneys, who should have understood not only the basics of DNA but also the problems associated with mixtures and partial profiles and what “can’t be excluded” really meant. Sutton’s attorney, for example, didn’t object when the crime lab analyst didn’t even use statistics in her testimony but said only that Sutton’s profile could be found in three different crime scene samples. “They didn’t squawk enough,” says Johnson. “They needed to raise holy hell, and they didn’t.” Munier adds, “The prosecutor allowed it, the defense attorney didn’t say, ‘Wait a minute,’ and the judge didn’t recognize it either. It’s a failure of the entire system.”
THE DNA SECTION IS still closed, and the entire lab remains under two different investigations. The first, being conducted by the Harris County DA and the HPD, has completed 404 out of 422 DNA retests. Sutton’s was the first and so far the worst for the lab. The rest have mostly corroborated the lab’s original work: 334 have been confirmed; 34 are still being tested; 18 cannot be confirmed at present; 11 more are, in Munier’s words, “funky cases” that fit no category; and 6 have had major statistical problems, but ones that don’t put the verdict in doubt, at least not yet. The second investigation is being done by a team led by Michael Bromwich, a former Department of Justice inspector general, who finished a first phase in June. “We do not yet know,” he wrote at the end of his report, “whether the well-publicized cases of the Crime Lab’s failures are isolated analytic breakdowns or only the tip of an iceberg of widespread analytic failures, incompetence, or worse.” He hopes to find out in the second phase, in which investigators are currently analyzing, but not retesting, 2,799 cases.
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