Evidence destroyed, innocence lost: the preservation of biological evidence under innocence protection statutes.

• Author: Jones, Cynthia E.

In 1997, Texas governor George W. Bush issued a pardon to Kevin Byrd, a man convicted of sexually assaulting a pregnant woman while her two-year old daughter lay asleep beside her. (1) As part of the original criminal investigation, a medical examination was performed on the victim and bodily fluids from the rapist were collected for forensic analysis in a "rape kit." At the time of Mr. Byrd's trial in 1985, DNA technology was not yet available for forensic analysis of biological evidence. (2) In 1997, however, a comparison of Mr. Byrd's DNA with the bodily fluid in the rape kit established that Mr. Byrd was not the rapist. (3) After serving twelve years in prison, Mr. Byrd finally was exonerated because of the scientific advancements in DNA technology and the fact that, by "pure luck," the sample of biological material collected in the rape kit had been preserved at the Harris County Clerk's Office in Houston, Texas for over a decade. (4)

After the DNA tests excluded Kevin Byrd as the perpetrator, the prosecution and the police were convinced that Mr. Byrd was innocent. (5) When Governor Bush issued the pardon, he predicted that Mr. Byrd's case would be the "first of many" in Texas to use the new DNA technology to re-examine old cases. (6) The same week of Mr. Byrd's pardon, however, the evidence custodians at the Harris County Clerk's office began to systematically destroy old rape kits in its evidence storage facility. (7) In one fell swoop, fifty rape kits were discarded, (8) virtually guaranteeing that Kevin Byrd would not be the "first of many" in Harris County to benefit from DNA technology as was predicted by Governor Bush.

The sole reason given by Harris County for the destruction of this potentially exculpatory evidence was a simple lack of storage space. (9) While it seemed more than a little coincidental that evidence kept for a decade or longer was suddenly destroyed on the immediate heels of Mr. Byrd's exoneration, evidence custodians were quick to point out that destruction of the evidence was legal. (10) In fact, local law gave Harris County the complete discretion to either retain or destroy old evidence from closed cases, regardless of any potential value the evidence might have in establishing the actual innocence of a prisoner. (11)

To date, 163 innocent people in nearly every jurisdiction in the country have been wrongly convicted and later exonerated, many as a result of DNA analysis performed on old evidence retained by the government. (12) A major impediment to the use of DNA evidence to exonerate the wrongly convicted has been--and continues to be--the destruction of evidence, such as rape kits, by the government. (13) Innocence Project attorneys and others working on behalf of the convicted describe the problem as a race to see how many people can be proven innocent before the evidence samples are lost or destroyed. (14) In fact, the Innocence Project of the Benjamin Cardozo School of Law, the national leader in the use of DNA to exonerate wrongly convicted prisoners, reports that 75% of the cases it accepts cannot go forward because the evidence has been lost or destroyed. (15)

While the practice of destroying old evidence in closed criminal cases was a routine and benign practice prior to the widespread forensic use of DNA, the current practice of destroying biological evidence, with full knowledge of its potential use to exonerate the wrongly convicted, is a cruel and callous injustice.

This article provides a critical analysis of the government's duty to preserve potentially exculpatory evidence under innocence protection statutes, newly enacted laws that allow prisoners to pursue DNA testing on biological evidence to establish their actual innocence. Part I examines the scope of the government's duty to preserve evidence under state law, the United States Constitution and innocence protection statutes. While innocence protection statutes have advanced the efforts of prisoners to utilize DNA testing to establish actual innocence, the vast majority of these statutes do not mandate that the government preserve the biological evidence needed for DNA analysis. Thus, the right to post-conviction DNA testing created by the overwhelming majority of innocence protection statutes is purely illusory. Moreover, even when innocence protection statutes impose a duty on the government to preserve evidence, the statutes do not include any remedy for convicted prisoners if all testable evidence is nonetheless destroyed and DNA testing is no longer possible. In order to truly protect the innocent--the group of people for whom these remedial statutes were enacted--innocence protection statutes must recognize and remedy the harm suffered by prisoners who have been permanently deprived of the only avenue for establishing actual innocence.

Part II discusses the resistance of criminal justice officials to the duty to preserve evidence. The most frequently cited reasons for opposing prisoner requests for DNA testing--cost, administrative burden and finality of judgments--are largely unfounded and mask a more fundamental disagreement over the core values of our criminal justice system. Opponents of the duty to preserve evidence maintain that the slim margin of error resulting in the wrongful conviction of innocent people proves that the system, though imperfect, operates fairly and should not be further taxed with an evidence preservation burden. Advocates of a statutory duty to preserve evidence contend that our criminal justice system does not achieve justice or fairness if we ever convict an innocent person and then forever foreclose the only avenue to correct the error, even if correcting the error would be costly, difficult to manage and contrary to the interest in finality of judgments. The analysis concludes that the majority of innocence protection statutes are flawed and fail to adequately protect the right of convicted prisoners to post-conviction DNA testing.

1. THE LAW OF EVIDENCE PRESERVATION

   1. Traditional State Evidence Preservation Practices

      Every jurisdiction has some form of evidence management policy or practice that establishes the procedures for storing physical evidence collected by the government in criminal cases, including various forms of biological evidence like rape kits, samples of hair, saliva, and semen. Commonly, evidence management policies designate an evidence custodian, set forth how long evidence must be preserved, and establish the procedures to be followed before destroying old evidence in closed criminal cases. (16) Evidence management policies are a vital tool in the justice system for ensuring that physical evidence can be retrieved and used at trial and will be available if there is a re-trial or other post-conviction litigation. As well, evidence management policies promote administrative efficiency by ridding overcrowded evidence storage facilities of old evidence from closed cases and in creating space for new evidence collected in open investigations and pending pretrial cases. (17)

      Prior to the 1990s when advancements in DNA technology first made it possible to extract and analyze biological material from old pieces of evidence, (18) rape kits and blood-stained clothing had minimal use after the defendant was convicted and the litigation was concluded in the case. (19) As a result, there was no compelling reason to preserve physical evidence, and not much attention was paid to how and where evidence was kept in the criminal justice system. In the last decade, however, formerly useless physical evidence from closed criminal cases has become vitally important in proving, to a scientific certainty, that innocent people have been wrongly convicted. This has resulted in an increased focus on evidence management practices across the country by innocence projects and other advocates seeking to use the new DNA technology on old evidence to exonerate wrongly convicted prisoners. In searching evidence storage facilities across the country, prisoner advocates have found that the actual "management" of evidence is, at best, inefficient and, at worst, nonexistent. Over the last few years, there have been numerous reports from all across the country of lost or destroyed evidence in both pretrial, open criminal cases, (20) and in post-conviction, closed cases where the missing evidence might have been used to exonerate a wrongly convicted prisoner. (21)

      Because there are no uniform, national standards governing the retention of evidence, evidence management policies vary widely from state to state and from courthouse to courthouse within each state. (22) Evidence management policies can be governed by state statutes, local court rules, police department operating procedures, and unwritten practices and customs. (23) In some jurisdictions, the evidence management practice mandates retention of old evidence at the courthouse and designates court clerks or court reporters to serve as the custodians of the evidence until a judge signs an order authorizing destruction. (24) Other jurisdictions, like Harris County, Texas, require that the evidence be maintained by the police department or at the state forensics lab until the proscribed retention period has lapsed, after which time a prosecutor or a police official can make the discretionary choice to retain the evidence or authorize destruction. (25)

      Even when a jurisdiction has an established evidence management policy in place, the retention of physical evidence is still largely a function of luck and happenstance. (26) Prisoner advocates have discovered that, contrary to the evidence management policy, some evidence within the same facility is kept for decades and other evidence is destroyed weeks after the case is closed. (27) Moreover, without an efficient system for cataloging and tracking evidence, it is often nearly impossible to locate evidence years after the case is closed. "Formerly lost" biological...