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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With the bloody, waterlogged boxes and all the other terrible things that went on at the HPD crime lab, one might assume that there should have been a lot more Suttons found in the retests. Perhaps this is evidence of DNA’s inherent soundness, even when processed by a bunch of overworked, poorly paid biology majors. Indeed, studies done on DNA have found that simple negligence won’t contaminate a sample; for that to happen, analysts have to do really stupid things, such as spray a mist of foreign DNA into an open test tube. Giles agrees that the science of forensic DNA testing itself is sturdy—“Most of the mistakes seen to date have been really big ones, sloppy ones like switching samples”—though he’s not so certain there won’t be more bad news out of the HPD. Neither is Bromwich. In a November interview, he told me, “The book’s not closed yet. We’re in the middle of reviewing the retests, as well as many other DNA cases, and we don’t know yet whether there will be any other cases like Sutton’s. We won’t know until our case reviews are complete.” That should be sometime this year.
Plenty of the state’s crime labs (there are 56—13 run by the Department of Public Safety, plus other city, county, and private labs) have had similar problems as the HPD’s, and most were also the result of incompetence and poor training. In a 2002 Fort Worth case reminiscent of the HPD case of Lynn Jones, a man named Jonathan Byner was arrested for rape and sat in jail for eighteen months awaiting DNA tests from the city police department’s lab. They didn’t come until the sample was sent to the Tarrant County Medical Examiner’s office, where, three days before his trial, they proved he didn’t do it. The reason for the wait: The police department’s lab had been closed after a 2002 retest raised questions about an analyst’s work. Audits done between 1999 and 2003 at DPS labs, which do about half of all forensic testing in Texas, found many of the same problems the HPD had had, from analysts who didn’t know how to interpret mixtures to analysts who didn’t know they should do tests on blank control samples to detect contamination. The worst non-HPD screwup by far is the case of Brandon Moon, who was convicted of rape in El Paso in 1988 based on an ID from the victim and faulty serology tests done on evidence that had been sitting in a police officer’s car for two days in the West Texas heat. In 1996 a DPS analyst reviewing the evidence wrote an internal memo in which she raised serious doubts about the serology test results; she also requested that blood be taken for DNA testing. Her concerns were ignored. When Moon finally did get a DNA test, in 2004, it showed he was not the rapist. He had spent seventeen years in prison for a crime he didn’t commit.
Sutton, Jones, Moon—time and again over forensic DNA testing’s short lifetime, the serious problems in DNA labs have proven to be problems of human error. The technology itself has only gotten more and more accurate and probative, to the point where police are now using DNA to solve burglaries, and crime scene evidence from all felonies, not just murders and sexual assaults, is entered into CODIS. In 2001 the Texas Legislature finally took notice of what a powerful tool DNA was, passing Chapter 64. Then, in 2003, it passed a law requiring that all state crime labs be accredited by September 1, 2005, at least if they wanted evidence from that field to be usable in court. Accreditation requires that labs meet basic standards for equipment, procedures, analysts, and supervisors and then undergo yearly internal inspections and external ones every five years. It won’t solve every problem; as University of California, Irvine, professor of criminology William Thompson points out, the organizations that do the accrediting are not government groups but professional associations, or, in his words, “old boys’ networks.” Bromwich is more sanguine: “Accreditation is an important threshold, a baseline. It doesn’t tell you as much as you want to know about the quality or accuracy of work done, but it’s a necessary and important first step.”
Or, as Irma Rios, a nineteen-year DPS veteran hired to oversee the HPD lab in 2003, says, “It’s a beginning.” In May every section of the crime lab except for DNA was accredited, and she thinks the DNA section will follow soon. And she says she and the department are determined to make things right again: “If somebody should be in prison who isn’t, we want to help put him there. And if anybody has been wronged, we want to make it right. ”
DON UMPHREY IS AN associate professor of advertising at Southern Methodist University. A religious man and a recovering alcoholic (sober 32 years), he spends time helping others with, in his words, “aspects of Christian recovery.” In 1992 Umphrey was preaching with his church group at the Coffield Unit, in Tennessee Colony, when he met Steven Phillips. The inmate later wrote to the professor, and they began a correspondence. When Phillips got out in 1996, Umphrey helped him get a job, and they became friends. “We hung out together,” remembers Umphrey. “We’d go to church together, go bowling. I treated him as a peer. He’s got a lot of interesting ideas.” Umphrey introduced Phillips to a friend who got him to go to a couple of Sex Addicts Anonymous meetings, but Phillips, who at the time didn’t think he had a real problem, quit. Not long after that, he was arrested for trying to peek into an apartment, and he was sent back to prison. Umphrey has stayed in touch, even if he is occasionally wearied by his friend. After Judge Nancarrow turned down Phillips’s request for DNA testing, Umphrey even offered to pay for it (the judge said no). Umphrey knows his friend is a sex offender. He doesn’t think he’s a rapist, but he also admits that he isn’t sure. “Either he did it or he didn’t do it,” Umphrey says. “But let’s find out.”
In order to qualify for post-conviction DNA testing under Chapter 64, a case must meet two criteria: First, identity must be an actual issue (if, for example, as in many rape cases, the victim knew the suspect, it isn’t), and second, a positive DNA test would have had to have made a difference at trial. When Chapter 64 first became law, in 2001, it was given a restrictive reading by the superconservative Texas Court of Criminal Appeals (CCA), which in the 2002 Kutzner decision wrote that inmates had to “show [that] a reasonable probability exists that exculpatory DNA results would prove their innocence.” In other words, in order to get tests to prove one’s innocence, first one had to prove one’s innocence. In response, the Legislature amended Chapter 64 in 2003, taking out the statute’s “reasonable probability” language. An inmate no longer has to prove his innocence; he just has to prove that if he’d had a favorable DNA test (one that excluded him), there’s a 51 percent chance that he wouldn’t have been convicted. Still, defense attorneys complain that some courts continue to apply the tougher Kutzner standard. “Kutzner should no longer be good law,” says Philip Wischkaemper, a lawyer with the Texas Criminal Defense Lawyers Association. Lawyers have other Chapter 64 complaints: There are no deadlines, so motions like Phillips’s can languish for years. There is no remedy given if the findings are favorable. And, if you’ve had testing once, it’s almost impossible to get it again. Bob Wicoff, an attorney for Josiah Sutton, says that because the wrongly convicted rapist had already had a test back in 1998, he would have almost certainly been turned down under Chapter 64: “If it hadn’t been for the media and the retesting program, he’d still be in jail.”
In the spring of 2001 hundreds of inmates, some of whom had found out about Chapter 64 from signs in prison libraries, filed for DNA testing. Many wrote obviously frivolous requests—for example, an HIV-positive inmate who wanted to find out if he’d gotten the disease from the woman he had raped. Other motions were made by inmates for whom the courts said it wouldn’t have made any difference: A death row inmate whose DNA had been found in a hair clutched in the victim’s hand was not now entitled to testing on the blood found under her fingernails. For some, there was nothing to test; evidence collected had been discarded long ago. Phillips was one of the lucky ones. He requested “testing on any and all biological evidence involved,” having no idea whether any DNA from his case still existed. It did.
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