Travis County

Agenda Item

Receive update from the DNA Working Group. (Judge Eckhardt)


Department:CC Agenda requestSponsors:
Category:General Government


  1. #7; Update; DNA Working Group

Meeting History

Feb 5, 2019 9:00 AM Video Commissioners Court Voting Session
draft Draft

Members of the Court heard from:

Roger Jefferies, County Executive, Justice and Public Safety (JPS)

John Lopez, Attorney IV, District Attorney's Office

Bradley Hargis, Deputy Director, Capital Area Private Defenders Service

Kameron Johnson, Juvenile Public Defender



Feb 5, 2019 9:00 AMVideo (Windows Media) MP4 VideoCommissioners CourtVoting Session

3:16 PMOr underfunded mandates and in what instances did we use certificate of obligation and in what instances do we use debt referenda or bonds. And also the overall cost of borrowing in those two instances, because I think that's nstructive to the point of sometimes speed will save you a lot of money if it's something that you really don't have the option not to fund, like chillers for the jail.
27 million, that's not something we do every day. But for me, it's important and it needs to get done. But i'm not sure that I feel that way about other expenditures. So I think i'd rather vote for the top ones that are mandated.
3:17 PMVery good point. all right. That passes on a 4-1. Thank you so much for all of this very deep work on what our options were here and the tipping point in savings.

3:17 PMWork.
Thank you.
Next, let's take up number 7. seven is to receive an update from the dna working group.
3:18 PMGood afternoon, y'all. it's good to see you.
Good afternoon.
This is another area where we've had a lot of people from a broad cross section working for some time to correct an implosion and build a better way forward. Good
Good afternoon, roger jeffries, county executive justice and public safety, here with some members of the dna working group. We'd hike like to give you an update.
Good afternoon, cameron johnson, juvenile public defender.
Scott, attorney with the juvenile public defender's office.
John, da's office.
Dana, the forensic science bureau, city of austin pd.
I'm stacy, director of the forensic project at caps.
3:19 PMBradley, deputy director of caps.
You recall from our previous presentations to you, we had five tasks in our project plan. One was the materiality review of past convictions. Two the retroactive scientific case reviews with the university of north texas. The interim solution was all the resources that were put together to continue dna testing in the community on an interim basis. The root cause analysis, which we hired quattrone to take a look at what happened to the dna lab and make recommendations. Finally, you appointed a dna advisory panel. The members of that include, just as a reminder, gary, mike, anna, and john mccormick. Today we're going to give you an update on tasks one and two, the materiality review and retroactive scientific case reviews, and also on the root cause analysis, task number 4. I'm going to ask john lopez if he would kick off that discussion.
3:20 PMOkay, so, during the course of this project, we have been engaged in doing independent reviews of cases that were impacted by the dna lab. The ones that c. A. P. S. Has been working on, we received a sons response from our brady notices that we sent out, and that's 600. On our part, the da's office, we decided we wanted to look at a little over 1800 cases touched by the lab from its inception. As we do our independent reviews we get together -- roger, do you want to hit that -- and worked to develop a list of cases to second to the university of north texas for reanalysis. We've tried to prioritize cases where the person is in custody, where based on their review, they feel like these are the ones that are the highest priority. Once we agree on those, we're sending them about ten at a time and they're being sent from apd. They receive the entire case file, which includes the bench notes, the photographs of the evidence, all the original data from the machines, and those are sent to the center for human identification at the university of north texas. They will look at the raw data and conduct their own reinterpretation. They look at the work that was done, look at the data, and send us back a report. And so that's been the process to this point. In terms of our reviews, we're looking at 1833 cases that we've identified. Of those we've gotten through about 884 so far. Of those, we've identified about 180 where we think dna May have affected the outcome. So just my process, I look at the case, I look at the evidence and I just ask if the dna was not here, would the person still have been convicted. If the answer is yes, then I set it over here. If the answer is no, then I put it in our list. If it's maybe I put it on the side of no, i'm erring on the side of let's review it if it's close.
3:22 PMFirst i'd like to start by introducing stacy lieberman, who you all just met, our new director. As you probably recall, having updates or hearing about, we conducted a nationwide search and selected stacy to head up this project for us after an interim director had filled the former director's position for some time. Stacy comes to us with extensive experience in post-conviction litigation and she's just starting to sink her teeth into the project, so we really think it's going to lead to an improved project for c. A. P. S. So we're looking forward to that. I want to introduce you to stacy and let you know a little bit about her background. So, as john was saying, there are over 600 cases that are under review. These are the clients that responded to us. 50% of the cases have undergone some level of materiality review. It's a process where we begin with the discovery from the state and conth continue through with communicating with the client and independent investigation because of the responsibility that we're charged with, our ethical obligations are a little different than the state. The state is able to confine their initial review, in most situations, to the case file, where we start with the case file but we do have to do a little bit beyond the case file depending on what we're seeing in the case file. So we're just beginning the litigation stages where cases are being developed for possible writ, and the writ is the process by which we will hope to correct any inaccuracies, any convictions that shouldn't be as they were. That's the legal process that an appellate action will undertake. If you hear us refer to writs, that's what that process is, is that legal process.
3:24 PMSo far we've sent 56 cases to unt for review and received results on 53 of those. They get the entire lab file. They are again reviewing the original notes. It's important to know they are not actually doing any testing of physical evidence. So they are just basing their review on the data that was originally generated. And in each case that we send, there are often multiple pieces of evidence that they're reviewing. This is reflected in the results we get back. Roger, the next slide. For each item of evidence for which we send them data, unt sends in their report either that they concur with the original results, they May agree that the person could not be excluded as a contributor to the sample but they recalculate the statistics. What that means is the way dna results are reported, there's first an initial question of can this person be excluded as contributing to this sample. If they cannot be excluded then the next part of the analysis is to determine what is the probability that somebody else could have contribute that sample. And so when we talk about statistics that's what we're talking about. In some cases they agree the person should not have been excluded but recalculate the statistics. Sometimes it's higher, sometimes it's lower. And then the other instances, in some cases they May say the results are inconclusive. Apd May have said this person cannot be excluded and unt will say no, based on our review, this should have been inconclusive. Okay. So, of the results that we have received, there have been 11 writ applications filed by capds and that was something where we agreed to temporarily stay cases and it had to do with technical issues in terms of timelines that are in place in the federal writ system. So those are filed, but they're kind of temporarily on hold while c. A. P. S. Continues their investigation. And the reason why this is important is because under texas writ law, you pretty much just get one shot. So if they think there's dna issues for which they want to do a writ, they also have to investigate any other potential claim that could be included in that writ, otherwise it would be waived. And so it's a bit more work once they decide that they want to pursue a writ on a particular case. That's part of why it's taking so long, is because they're having to really dig deep into the entire record. In some cases they're talking to witnesses and they're doing a lot of extra work to make sure that they're not missing any potential ground to not waive that on behalf of the client.
3:27 PMJohn, could I just take this moment to punctuate how straightfextraordinary that is, that prosecution and defense in the guise of capds are working together on agreed writs, and working through all of the possible issues with the case as not to disadvantage the defendant in the writ process. This is an extraordinary circumstance. I would be curious to know if something like this has -- when and under what circumstances this has occurred in other places in the united states. You don't have to answer that.
3:28 PMWe're not aware of any. [ laughing ]
But it does point to how our community has come to rely very heavily on prosecution to do defense-related justice initiatives. And I think that speaks well for our community, that our prosecution, traditionally, for decades has believed very fervently in the idea that justice must be served, that that's its goal, not convictions.
The fact that the prosecution and part of the defense team are working together, my question is how has the civil rights community weighed into this part of the process? Or how has it been briefed and how has it responded or had a chance to yet?
3:29 PMIn the form of the advisory committee, i'm assuming that's what you mean, we've had the opportunity to meet with them quarterly. Our last meeting with the advisory group, they were included in the audience with the working group to hear the presentation by quatron, quatron came to town and gave us a presentation. We keep them informed of all the information the working group puts out and invite them to provide input to the extent they would like to. For example, we did forward this to them prior to presenting it to you all and invited them to participate in this presentation.
So they had an opportunity to look at the materiality reviews and give you some feedback before we brought it here?
The presentation materials. Are you talking about information on specific cases?
3:30 PMThe interest was that the civil rights community also have -- be involved in the process particularly the materiality reviews because the last meeting that I participated in, there were several key points and questions brought up by the community that were going to be involved. And my interest is that we incorporated those elements into the evaluation and worked through them together so that whatever we come up with is -- includes those issues.
Early on, commissioner, around the time you are referring to, we had a series of open houses and we did some community outreach around that time to make sure that the materiality review that we were designing and how we were going to work with our clients addressed some of those concerns. I don't know if every concern has been addressed, if there are ones brought to anyone, we are open to that. I know that we've continued to meet with them through the advisory group. But to your point out the materiality reviews were couldn't, that was something we met early on about because I know there were concern about that.
3:31 PMAs the process goes forward, because a lot happens between a quarterly meeting.
And the whole issue in my mind was integrating them into the system so that we are having these conversations so they are just not responding to a document, but there is conversation going on and those ideas and concepts being incorporated as well.
I wanted to point out from the results we received from -- to date, we have not received any cases where the original report indicated that the person could not be excluded and the reinterpretation says they should have been excluded. So in dna world they don't talk about including people, but they talk about whether or not they can be excluded. This is about as close as I can come to saying I don't think we've come across a says that's been reviewed by unt where it looks like this was the completely wrong person, if that makes any sense. That was one of our biggest concerns is did we get somebody in there who did no do this. At least as far as the dna results have said there haven't been any who have said --
3:32 PMThe first case for the tipoff for the d. A. 's case to ray the flog is a cause of probable -- where the description of the assailant was so radically different from the defendant produced, correct?
3:33 PMYes. in every case they are looking for any evidence or anything in the report that would indicate the possibility of contaminations. That's part of their analysis.
I suppose the good news is although the case that broke open this problem was bad, it May have been an outlier of bad that nevertheless opened up a much needed investigation.
That's good news. I don't know if you all recall that it was a sexual assault case, I believe, and the assailant was described as being of run race and the defendant produced was an individual of a different race and a different height than described by the victim.
Okay. of the -- in 23 of the cases, unt has said at least one item should have been inconclusive as opposed to to the person not being able to be excluded. But it's difficult to draw any broader conclusions because each case has different evidence, in some cases there might have been multiple pieces of evidence and one of them was inconclusive, but the other ones they concurred with the results. Or it could be a case where the dna was inconclusive, but there was also other evidence presented or available. So we are looking at all of these cases and based on the results that have come back, like I said, caps has filed 11 potential writ applications and as they -- once they finished their investigation, we're going to sit down and try to determine which ones we can agree to a resolution on and which ones we'll just proceed with the normal writ process.
3:34 PMOver the public course of this process, we've talked about the impact the dna closure had on the adult criminal justice system, it also had an impact on the juvenile justice system and we've asked cameron to give you an update on the materiality reviews his office is conducting.
3:35 PMWe came a little late into the process, but what we've done is that we've taken on the role to look at every case identified as a juvenile case. When I say juvenile case, those cases that occurred when the individual was between the ages of 10 and 17. When we look at those cases, some of the cases at the time they were brought forward, the individual May have been over the age of 17, particularly example we call those delayed outcry cases on cases of sexual assault. So the case we're actually looking at now is we've identified individuals between the ages of 16 to 35. And we've identified, we've whittled it down to about 107 cases. What we've done is is that we have actually -- we are professionalling protocols we wanted to make them the gold standard. We started with the total number of case that the district attorney's office identified, so that 1800 cases, and actually we actually started with actually even more, I think it was about 2400 cases that included some of the cases we were already taking a look at that were from department of public safety from a different forensic interview. So we went and we mainly tried to take a comparison, we looked at the date of the offense and looked at the age of the individual. And so to make sure that we were not missing any individuals. So after doing that, we have gotten down to 107 cases that were from the austin police department laboratory during the time that they were open. What we've done is we've decided we're going to look at every single one of those cases. When I say every single one, represented by our office, but even if they were not we are taking a look at all those cases. I've taken the position that when we're talking about a materiality review, the first thing I have to do is we have to do as an office is to look at the case and just do some factual background to make a determination as what do we think. Did the dna have any impact on this case. For example, there May have been dna, but by the time we did the case is that dna was not introduced or it was not relevant to the case. In a juvenile world, we move a whole lot faster than on the adult side. 90s typical that we've had -- for exe handled a murder case within 90 days from the date it occurred all the way to its completion. So there is sometimes where there would be -- dna results were not back and that was because we felt they were not relevant to the actual specific facts of the case. So what we're doing is we have a expansive review of our case reviews and so what we -- for example, we're just looking at -- we're looking at the information and we are also working in conjunction with the state's office and they've been very helpful in giving us information and providing that. So we're looking at their file. We're looking at the defense file. We're also looking at the court's file. We're looking at any and everything that we can find to be able to make a determination is that did dna have an effect on this case. We are also able to do a more expansive scientific review in our office, and that's, you know, greatly -- we have a great advantage of having scott rupligger as part of our team. He is essentially a sign advertises. He's worked -- scientist. He's worked on cases in new york as well as here. What we've been doing, we are able to take the lab reports, lab files and even make a more thorough determination as to whether or not the dna had some affect on the case. And that May also involve us, you know, we are using our investigative team. We May go out and find the individuals where they are, you know, who were involved, for example if someone is in prison as a result of this, you know, we're reaching out to them, talking with them. And we are also looking at the cases that we've represented over the years where there was some dna issues or concerns that we had that didn't result in a finding of guilt and trial. For example, you have those few cases where it's like hey, individuals identified as being responsible through a dna, we had some concerns, and we did some independent testing, you know, during the process. And, you know, those cases came back and we were able to exclude some of those individuals. What do we do on those case that maybe did or did not happen on some of these type cases. In addition to that, wherever we can find information, transcripts, reviews and that's the other collateral interviews. So where are we now? Of those 107 cases, we've actually been able to close some of the cases. We've done a thorough review of the case, looked at it and made a determination that dna didn't impact the case. In a sense that it -- we've got the results we wanted to be looking at. We've got another -- the vast majority of the cases are still in review. That means we are either reaching out to the attorneys who handled the case, we're still needing to get back dna, laboratory results and things of that nature. Because what we are wanting to do is to be able to before we actually select cases that will be sent to unt for further testing is that we want to have a pretty good idea of what we're looking for. We're not only looking for cases where individuals are in custody or in a penitentiary, we're looking for individuals that have some sort of collateral or direct impact of consequences. For example, on a sexual assault cases, they May have completed their term of confinement, they May have completed their term of probation, they May be under still some sort of registration, for example, being on the sex offender registry list, you know. Or they May still have these cases on their record. So we're looking at all of them and then we are prioritizing them on -- we're trying to identify those cases we feel as though the greatest issues of them because we want to be able to reach out to all of those cases. So what do we have? We -- based on what we're doing is my expectation is that by the end of this fiscal year, we should have, of all the cases we're looking at, we should have completed the file review as well as the scientific review. The cases that we identify or send off for additional testing, the expectation is that, you know, within the next fiscal year, 2019 and 2020, we should be able to identify and get all those cases set. What we are also doing is is that we have the resources and we have the expertise is that we are going to be doing the -- the appellate review on all of the cases. That's important because the juvenile cases have a completely different appellate process than adult cases. It's very, very unique and it's highly, highly specialized, but we're going to be -- we've done those before, we've done juvenile writ cases and we're going to be doing all of those in house. And once we identify those cases and we already started. One thing that's different from adult cases is that we don't have the restriction that we have to identify every single issue before we can go in and file an appeal on the case or do a writ. It's sort of like if we identify an issue that they say dna was done improperly, we're going to be reaching out to the state, you know, john and his team and being able to see if we can agree on a process, you know, that this case needs to come back and we need to take a look at it. If not, we're able to go forward and litigate those cases in the courts. The other thing we've been doing is because it's so unique and highly specialized have already been keeping our juvenile judge, Judge Hurley, abreast of this whole process and what we'll be doing. Because, again, our goal is to be able to create a protocol and a structure that is truly going to be the gold standard so that we can -- if that needs to be duplicated, we'll have a process in place to being able to do. One of the things we've also been doing, we've been operating independently, but working with all the stakeholders. Like I have reached out individually to the -- for example, the civil rights community, i've been working individually with individuals on the advisory board, been working with them and being able to talk to them so we can have some sort of community involvement and being able to address these issues. And it's been very, very, I think very effective because this is -- this is new, as Judge Eckhardt stated. And, you know, i'm really proud of travis county and the collaborative effort that we're being able to do and we're hoping that we are going to be able to continue in this and develop some protocols that are going to be duplicated in other parts of the country.
3:46 PMWe wanted to give you a quick update on task number 4, which is the look forward, look backward, the root cause analysis. As you recall the city actually penned a contract with quatron, out of the pennsylvania school of law. I think it was late last spring, they've begun their work and this is a map of their work that they are doing and it reads almost like a backward s. Where we are is at that red circle, there's still interviewing athe -- the quatron staff and the subject matter experts are conducting interviews of the various stakeholders that had something to do with the dna lab and its closure. I think they have scheduled 45 interviews. They've completed 24 of those. They plan to complete those in march. They are also doing a scan across the country of dna labs, best practices, various models that they can -- cog information back to the working group for working with them to develop recommendations. You can see what the next tasks are, to analyze interviews, prepare draft of the contributing factors to what they believe went wrong with the -- with the lab, and then to draft potential interventions for the work consider.
3:48 PMAll of this work is so super important, and again, I can't stress how unusual but very gratifying it is to see law enforcement and prosecution and the scientific community and the judiciary all working together. We also have a very unusual -- an unintended control group, control rat x and y in that we have a juvenile public defender in this circumstance and a managed assigned counsel on the adult system. So this is very, very interesting work to me. I am very, very committed to seeing what the quatron study reveals. This is a city contract looking at what is a -- I don't think that -- I want to be delicate in what I say because this is a really good partnership. I don't think there is any disagreement that the source problem was in dna analysis. Is that fair to say? The course issue is in the dna analysis?
3:49 PMI think that's fair. yeah.
So it was appropriate that the city is paying for the study since that's the locust -- the location of that.
Just to clarify, we've got an agreement with the city where we're splitting the costs with them.
3:50 PMOh, that's right.
They are splitting capds, we're splitting quatron.
That's right. that's right. Thank you for that reminder.
So you don't have to be as delicate. [laughter]
I don't want to put my thumb on the scale of what I -- what of what quatron is going to come out with regard to recommendations, but this is a scientific endeavor, the analysis of forensic scientific evidence. It is, after all, forensic scientific evidence. So I want us to stay open to what quatron brings to us with regard to best practices on forensics. We have really struggled in this community with the forensic sciences. We continue to struggle in this community with the forensic sciences and how they should be managed. We are not alone in the nation in how we struggle with the -- the data revolution in the criminal justice context. So stay tuned.
3:51 PMJudge?
Yes, ma'am. I am so sorry, brigid, why see you on my screen so thank you for speaking up because i'm looking at numbers.
That's quite all right. could I just ask for kind of a summary recap of what you are seeing in terms of the cases that are being reviewed and the ones that you have either identified or put in the maybe pile that would need to be -- I term is, re-examined, brought back to court, but ones where clearly the problems with the dna process May have resulted in some injustice? Can you give us kind of a summary? I thought I recalled reviewing 800 and finding 160-some, if you can give a summary statement of where this review stands.
3:52 PMThe type of cases --
Yeah, you said you were putting them into piles. One was clearly there's a problem, one was maybe there's a problem. What's the general sense of what we're finding? I thought somebody described going through a stack of 800-some cases and identifying 160-some that were either questionable or clearly there was a problem.
Well, the cases that -- that was -- the numbers were about 180 in a little over 800 cases where we think dna May have played a role. And actually the more I have been reviewing the reports that have come back from unt, if I were to go back I May reallot. As we get records back from unt with analysis, i'm learning more about the types of cases where the dna results are likely to change. For example, there are a lot of cases where the dna evidence involves a single source. On those cases, the doctor has basic confirmed those results. And so if I were to go back and look at the cases now, some that I looked at six months ago, I May reevaluate based on what I know know about the types of dna evidence likely to be changed by the reviews.
3:53 PMDo you have any on what% might come out of this review, reexamine the case, 60%, 40%, or is it too early to give any indication?
3:54 PMIt's kind of early. the issue is because a lot of these cases involve more than just the dna evidence. The difficulty is sitting down and trying to evaluate exactly how to weigh the nondna evidence. And I think, you know, we May agree on some and we May disagree on some, but at this point it's just too early to say. It's hard to generalize because each case is so unique in terms of the changes made to the dna evidence, the original strength of the evidence as well as other nondna evidence that was available.
When do you think you will be able to get a solid handle on where this all stands?
Well, as of right now we've got the 11 cases that caps has identified as ones they want to file a writ. Of those there's one for sure i'm willing to agree on. The others are ones that we May need to discuss because the evidence May have changed, but it doesn't clearly state that the person wouldn't have been convicted. It May have made the case a little weaker. Trying to determine what the right results should be in that situation is what we need to discuss next. That's on our plate going forward.
3:55 PMI'm trying to get the big picture sort of when do you think you'll complete this process? Not just the 11 cases, but the whole review.
Well, I guess as we send cases to unt, those results have been coming back slower. It May take a couple more years depending on how many additional cases we identify that need to be sent. And how long it takes unt to get results back to us. So our initial estimate was about ten per month, but that has not been the rate at which we've been getting them.
3:56 PMJudge, I don't know where we -- where we fit this in, but I think there will be value in having us look widely at how we can have a better for instancic operation here in this -- forensic operation that can handle this stuff accurately and timely.
Absolutely, and that's what i'm looking to that quatron analysis, the look-back as well as the look-forward recommendations for our consideration. I'm just asking everyone to stay open to what the possibilities are. Let's just stay open. Let stay open to what those possibilities are, what their price tag is, what kind of reorganization might come from that. There will be -- there will be some very interesting conversations to come. Some very interesting conversations to come. But we are engaged in a very meaningful revisioning of our criminal justice system in travis county. We are -- we are on the very edge of this movement. And I appreciate y'all's willingness to be out there beyond the barricades where everyone is shooting at you from all directions. I know what that feels like to have victim advocates shooting at you as well as defense advocates shooting at you. It's a difficult place to be, but if they are shooting at you from all directions, you are probably in the right place. So in terms of really genuine reform. So thank you. Any other questions?
3:57 PMThank you.
3:58 PMSo stay tuned. that quatron report is going to come back and then we're going to be back on a bucking bronco, I believe. But during this time where you all are really -- I really appreciate the league he will beagle looking at all this and our citizens advisory group which has some technical expertise, because not just your regular citizen can sit on those quarterly meetings and get procedurely what our options are. Big thanks go out to our stakeholder group for sticking with us on this.

3:58 PMThank you.
Thank you.
Thanks so much. a couple of other items before we go into executive session. First on the local behavioral health authority, where we are on that is I did some -- just a quick update. We don't have a local behavioral health authority, but we have a local mental health authority. Integral care does convene the samso of a significant number of of our behavioral health providers. And the county and the city pay for the samso. Stands for substance abuse managed services organization. Samso.