By Canadian Press

Texas says DNA technology jeopardizes cases

Jun 20, 2019 | 11:26 AM

AUSTIN, Texas — With a name that sounds like futuristic fiction, Rapid DNA machines roughly the size of an office printer have helped solve rape cases in Kentucky, identified California wildfire victims and verified family connections of migrants at the U.S.-Mexico border.

Now a state board in Texas has asked a growing government provider of the DNA equipment used in those high-profile projects to halt work amid concerns of potentially jeopardized criminal cases, according to a letter obtained by The Associated Press.

Texas is not the only place where the company, Longmont, Colorado-based ANDE, has come under scrutiny. Utah officials say they will likely no longer use Rapid DNA machines for sexual assault investigations, citing a higher degree of technical analysis required, but one case raised concerns about swabs taken from a victim. And when the Arizona Legislature this year considered creating a new statewide DNA database, ANDE helped draft the bill that included language excluding its only U.S. competitor, giving some lawmakers discomfort.

“Prosecutors are saying, ‘You’re screwing up our cases,'” said Lynn Garcia, general counsel of the Texas Forensic Science Commission.

On Monday, the governor-appointed board sent a letter asking ANDE to “cease any project in Texas involving the use of its Rapid DNA technology” unless it goes through an accredited lab familiar with handling criminal evidence.

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The commission says ANDE embarked on projects with police and a hospital in Houston without input from prosecutors, leaving them in the dark about evidence they’re required to disclose to criminal suspects. That sent prosecutors scrambling to comply with a 2013 Texas law named after a man who wrongfully spent 25 years in prison after significant evidence in his case was withheld.

ANDE spokeswoman Annette Mattern disputed the accusations, saying law enforcement agencies bear the responsibility for evidence handling. She said no issues have been raised regarding ANDE’s equipment.

Started in 2004, ANDE is becoming synonymous with Rapid DNA thanks to a run of high-profile projects, including a pilot program on the border with the U.S. government that ended in May. Voluntary cheek swabs were taken from some migrant adults and children to confirm family connections, amid worries by the Trump administration that some migrants were fraudulently posing as parents.

Mattern said the company’s technology is “challenging norms” and suggested that some might be struggling to adjust.

“If there are procedural issues within the agencies, I’m not surprised because this is new,” she said. “If there is confusion because one group says it has a protocol and another says, ‘Well, it should be different,’ those are good conversations to have. Make it better.”

It has left ANDE facing criticism as the company — one of just two manufacturers of Rapid DNA machines in the U.S. — makes an aggressive push into police stations and labs nationwide. Officials in Texas say they fear the company’s actions are setting back a promising technology that has gotten a boost under President Donald Trump, who in 2017 signed the Rapid DNA Act that allows police stations to link machines to the nation’s DNA database.

The technology is gaining traction. Although Rapid DNA results aren’t used for courtroom evidence, investigators are embracing a tool that can give them results in a couple hours rather than waiting days or weeks, allowing them to zero in on suspects and solve cases faster.

In Texas, the commission said the company’s arrival in Houston has jeopardized the integrity of ongoing criminal cases, although the board did not cite any that had been derailed because of ANDE. A criminal suspect who learns of undisclosed evidence could use that as grounds for dismissal or appeal. Another concern is that because the machines consume evidence, that same sample can’t be retested later.

Peter Stout, chief executive of the Houston Forensic Science Center, also said at least one swab taken from a sexual assault victim was lost in the mail, raising concerns about how carefully evidence was handled. Mattern said she had no information about a lost sample, but the commission noted other concerns related to the integrity of samples “sent out of state.”

Stout rejected ANDE’s assertion that it had no responsibility in how evidence was handled.

“It’s a little disingenuous on ANDE’s part because they are so aggressive in marketing this to the officers that this is an investigative tool. And they certainly don’t take the opportunity to explain and point out that you guys need to make sure you’re giving everybody the information,” Stout said.

Republican Utah Attorney General Sean Reyes, who purchased two ANDE machines, raves about the technology on his website in a video that includes about 90 seconds of ANDE promotional footage.

The machines were purchased for low-priority property and gun crimes but in one case ran evidence from a sexual assault investigation, said Nate Mutter, the office’s assistant chief of investigations. He said technical assistance was needed from ANDE to help analyze the sample.

Mutter said it was “very possible” that the Utah law enforcement agency that obtained the swab, which he would not disclose, did not get consent from the victim for a rapid DNA analysis. He acknowledged concerns were raised, but said his office’s reluctance to use the machine again in sexual assault cases is because the analysis requires more technical proficiency.

“I would just find it hard to believe that they wouldn’t consent to extra swabs if that meant their case got adjudicated faster, and their rape suspect got held accountable faster,” Mutter said.

In Arizona, Mattern defended the company asking for “performance parameters” in the proposed DNA database bill that excluded the company’s chief rival, Thermo Fischer Scientific, saying it wouldn’t have prevented competitors from ultimately meeting the same requirements. Mattern said ANDE later asked to kill the legislation.

During a February hearing, Mattern and other ANDE representatives testified in support of the proposal. Some senators questioned whether there were other advocates besides the company.

“Limiting that to just one company, or two companies, that can make a lot of money on this makes me uncomfortable,” Arizona Democratic Sen. Jamescita Peshlakai said at the hearing.

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Follow Paul J. Weber on Twitter: www.twitter.com/pauljweber

Paul J. Weber, The Associated Press