After the Conviction
Written by Bob Galvin   

AS DNA became a staple in forensic science over the last few decades, a number of national and state organizations grew to assist with freeing wrongfully sentenced individuals using DNA evidence. Meanwhile, technology has progressed for both establishing proper chain of custody and testing for DNA samples. So far, these movements have gained traction with their goal to help the falsely accused, and technology has refined DNA processing—with astonishing speed.

The Innocence Project

The most familiar organization established to help exonerate wrongfully convicted people through DNA testing is the Innocence Project, which was founded in 1992. Since its founding, the Innocence Project has been involved in 171 of the 311 DNA exonerations nationwide—18 of which were death penalty cases. Others were helped by Innocence Network organizations, private attorneys, and pro se defendants in a few instances. The average length of time served by exonerees is 13.6 years. The Innocence Project either was the attorney of record in each case or consulted with the defendants’ attorneys. For these defendants, the organization may have been their last or only hope of gaining freedom.

Defendants initiate most of the cases the Innocence Project handles, according to Huy Dao, the organization’s case director. Yet, Dao said, “We have to turn down the vast majority of people who write to us because DNA is not going to be a factor in establishing identity, or resolving the question of guilt or innocence in a case.”

Cases involving sexual assault have been viewed as the most fruitful for having enough biological evidence to produce results. Dao notes that because DNA testing has become more refined in recent years, the Innocence Project looks at every type of case because there is potential DNA to be obtained and tested in almost any kind of case.

Long, Tedious Process

Once the Innocence Project begins pursuing evidence in a case, the process is long and tedious due to privacy issues and the wait to have evidence tested.

“Our mission statement makes this process sound simple, but it may take years to deal with the volume and quality of review for each defendant whose case might progress,” Dao said. Meanwhile, the Innocence Project is also working with the federal government and states to help bring forth policy that will prevent wrongful convictions in the first place.

State-Level Innocence Inquiry Commission

Today, the Innocence Project is not the only player in its niche. In 2006, for example, the North Carolina Innocence Inquiry Commission was founded. The Commission, which began operation in 2007, grew out of the creation of an earlier commission by North Carolina Supreme Court Justice I. Beverly Lake to study wrongful convictions and how to prevent and rectify them. This led to today’s Innocence Inquiry Commission aimed at investigating cases of people in North Carolina who claim they are innocent after being accused of a crime.

“We’re the only Commission of our kind,” said Kendra Montgomery-Blinn, the commission’s executive director. “We are a neutral state agency that investigates and evaluates innocence claims. We only handle post-conviction cases.”

Rigid Evidence Collection, Chain of Custody

The Innocence Inquiry Commission is state funded and has received a federal grant for DNA testing. As a state agency, the Commission has statutory power, giving it the appropriate resources to investigate the case. Sharon Stellato, the Commission’s associate director, explains, “In cases that involve physical evidence, we first determine what was originally collected and then work with law enforcement agencies to determine what has been preserved and what can be tested.”

The Commission operates its own evidence room that contains more than 100 items, including buccal swabs from people pertinent to the investigation. “We must follow the same chain of custody as any law enforcement agency, and only keep evidence that comes from other agencies for as long as the case is active,” Stellato said.

A Model for Other States

What impact is the Innocence Inquiry Commission’s work having so far? There have been four exonerations, and numerous other convictions have been confirmed. The Commission works closely with government agencies to locate and test physical evidence. Cases come via direct contact from claimants, or they can be referred to the Commission by another state agency, including a district attorney or a law enforcement agency, noted Stellato. Once the Commission reviews a claim and determines that it meets statutory criteria, it contacts the original investigative agencies to obtain files and evidence. The Commission staff presents a case investigation to the commissioners who determine if there is sufficient evidence of actual innocence to merit judicial review. If so, the case is sent back to open court for a full hearing.

Montgomery-Blinn thinks the Innocence Inquiry Commission is a good model for the entire United States. Many other states already are working to create similar commissions to review their innocence claims.

Another organization is the Arizona Justice Project that has operated since 1998. The group helps overturn—and prevent—wrongful convictions in Arizona, and provides legal representation to inmates who believe they are innocent. The Arizona Justice Project also works to achieve policy reform to strengthen the criminal justice system towards minimizing the chance that wrongful convictions will occur in the first place.

Tracking DNA Evidence

Evidence integrity begins at the source, so it is paramount that reliable evidence management systems and lab testing are in place. These components are crucial, particularly with the increased emphasis on establishing proper chain of custody for DNA samples.

John San Agustin, inspector for the El Paso County (Colorado) Sheriff’s Office, explained, “By having some type of automated software or evidence management system in place, this allows you to track the chain of custody. With this technology, we’re able to see when that piece of evidence was collected, where it was collected from, where it was placed in an evidence storage facility, and whether or not it was properly stored.”

Such automated technology tells evidence and law enforcement personnel what needs to be tested, but may also indicate specific items that still must be collected from an investigative standpoint. San Agustin points to the EvidenceOnQ evidence management program from FileOnQ as one he has observed in use that is able to create solid chain of custody. “This program allows you to look at specific items that may have better value, and helps you determine which items to send to the lab immediately for analysis,” San Agustin said.

The Supreme Court and DNA

Years-old crimes linked to newly identified suspects demonstrate how important testing rape-kit evidence has become. Such testing can take habitual rapists off the streets, preventing other people from being assaulted. Rape kits’ contents may vary, but often include bags and sheets for evidence collection, swabs for collecting bodily fluids, blood collection devices, combs for collecting hair and fiber collection, and glass slides.

The DNA evidence collected in those rape kits becomes even more valuable as local and national DNA databases continue to grow. Forensic DNA testing was given a boost this past June when the Supreme Court ruled that it is constitutional for police to take DNA samples from individuals arrested but not convicted of violent crimes without obtaining a warrant for the DNA sample. The court argued this action is valid since swabbing for DNA is a reasonable search that is part of the booking procedure when someone is arrested.

Electronic Tracking Speeds Up Rape Kit Testing

Darrell Allen, property room supervisor for the San Antonio (Texas) Police Department, recalls that his property room contained about 12,000 rape kits when he joined the department in 2005. But with a manual evidence tracking system, there was no efficient way of inventorying those items.

“Before we installed this evidence management software, accomplishing such an inventory would have been impossible because evidence was coming in so fast we could not inventory it fast enough to get an accurate count,” Allen said. “Also, with the manual evidence tracking system, property could be removed and replaced back to its place during the inventory process!”

He said that the evidence tracking software, EvidenceOnQ, solved that problem, giving the San Antonio Police Department a reliable way of tracking the 1.4 million pieces of property in its evidence room. This includes tracking whether or not a kit has been tested, recording when a kit is tested, and the ability to flag new kits to ensure they are tested within the timeframe mandated by law.

Testing Bottlenecks Cause Huge Backlogs

Timely testing comes in lockstep with properly storing, preserving and establishing chain of custody for DNA, especially in older cases. This goes to the heart of why groups like the Innocence Project exist, since many of the victims they try to help face the death penalty.

It’s a concern to Joe Latta, executive director of the International Association for Property and Evidence, Inc. (IAPE). “The evidence custodian should look through all evidence to see if any is linked to crimes or sexual assault cases,” Latta said. Even so, Latta concedes, “The crime lab may not have the capability of testing. Every lab is going to be different.”

The International Association of Chiefs of Police agrees with Latta, and expresses concern over the backlog of evidence that most agencies must handle. John Firman, director of IACP’s Research Center, notes that his organization wants more federal money provided to alleviate the backlog and give more resources to crime labs to process evidence such as DNA. To let this problem persist, Firman said, is “irreconcilable with good law enforcement investigative practices.”

New Methods Test DNA within Hours

Some help is on the horizon for crime labs nearly buckling under huge DNA testing workloads. For example, Rapid DNA, which translates to nearly real-time DNA analysis, can yield results in as little as 60 minutes and requires minimal operator training. The goal is for Rapid DNA to dramatically and quickly aid investigations. Promptly analyzed samples could be checked against databases for unsolved crime scene profiles and databases of known offender/arrestee profiles, thus aiding investigators in establishing stronger leads.

The Arizona Department of Public Safety’s crime lab is testing a product called RapidHIT 200, that can deliver DNA test results in less than two hours.

Other Evidence May be a Focal Point

San Agustin, the El Paso County Sheriff’s Office inspector, warns against making DNA the only evidence to consider in crime cases.

“DNA is something you have to be extremely careful with because it’s not the end-all,” San Agustin said. “You have to also question whether it was handled properly when the case actually happened.”

DNA as evidence is relatively new, San Agustin continued. Testing has been around for only a few decades.

Another concern is the tendency to want to test every piece of evidence for DNA. “What they’re missing is, first, asking whether or not the case is a DNA case,” San Agustin said. “Not every case is.”

Latta agreed with San Agustin’s assessment, but has a slightly different view on DNA testing. “You could have a rape, but not have a sexual assault kit,” Latta offered. “You may just have clothing, but nobody measures that. There could be other pieces of evidence even more valuable than the sexual assault kit.”

The emphasis on DNA and ensuring that it is tested is well founded, said Latta. “It’s probably the most important evidence in a property room,” he said. “You’ve got guns, money, and narcotics, which are the fruits of the crime. But it’s that DNA evidence, and testing it, that solves the crime.”

To that point, Latta is heartily in favor of automating the chain of custody for DNA samples. “The software can catalog the biological evidence so that we can get a better grasp of what’s actually in the property room and make sure it’s tested before the statutes of limitations expire,” Latta said. He added that states are placing longer statutes of limitations on any item collected that may have biological evidence.

Automation Speeds Tracking

While DNA is not the only type of evidence that property rooms handle, its elevated status has definitely helped drive the effort among law enforcement agencies to automate their evidence tracking process. David Reeves, property and evidence technician with the Spartanburg (South Carolina) Public Safety Department, uses the Evidence Tracker software from Tracker Products. “Our evidence tracking is all automated, which means that the moment the officer drops off evidence and it is entered into the software, it is tracked,” said Reeves. “Whereas before, the officer would sign in and date it. There was a lapse of time in the chain of custody process. Now there isn’t.”

Auditing evidence inventory is another key aspect. Reeves reports that it took three and a half days to perform an audit with his manual system. Now, using the new software, a 10 percent audit in his property room, which takes in 37,000 items a year, only requires half of a day.

Software Captures Evidence History

Evidence management software also is helpful for capturing a history on evidence. Using the QueTel evidence management software, Mike Owen, evidence technician with the Vernon (Texas) Police Department, says, “If I want to do a history search on an evidence item, QueTel tells me everything that has gone on with that one piece of evidence—when it was placed in the system, where it was placed, who checked it out and why, when it was released, and who signed for it.”

Handbook on Property Room Best Practices

The issue of evidence management is so important that in April 2013, a large panel of evidence experts published The Biological Evidence Preservation Handbook—Best Practices for Evidence Handlers. The handbook gives guidelines set forth by the National Institute of Standards and Technology (NIST). In particular, the handbook cites deficits in identification of evidence as a central issue. To correct this problem, the handbook recommends automated identification technologies to enhance chain-of-custody tracking, to facilitate inventories, and allow for efficient retrieval of evidence.

While some agencies have software for this purpose, the handbook states such software in some cases does not track the return of evidence once signed out. To correct this, the handbook suggests agencies look for an evidence management system that can produce customizable “tickler files”—notifications that a checked-out item is due for return.

Such automated capabilities could be invaluable for DNA samples captured from old cases. Allen from the San Antonio Police Department agreed, and even presented a scenario that shows how crucial careful DNA sample collection and preservation can be: “Let’s say you have a serial rapist or mass murderer, and because the evidence room in a law enforcement agency was unable to efficiently collect, store, transport, and provide chain of custody for the evidence, now you have a criminal on the street,” Allen said. “If just one of these cases is mishandled and gets in the media, it will take years to recoup your department’s reputation.”

About the Author

This e-mail address is being protected from spam bots, you need JavaScript enabled to view it is a freelance writer who covers topics related to law enforcement and the technology of crime scene and crash scene reconstruction.

Next >

Item of Interest

The language barrier between English-speaking investigators and Spanish-speaking witnesses is a growing problem. (Updated 28 February 2011)