                                                                                    AP-77,043
                                                                 COURT OF CRIMINAL APPEALS
                                                                                 AUSTIN, TEXAS
                                                               Transmitted 12/15/2015 7:27:21 PM
  December 16, 2015                                              Accepted 12/16/2015 7:48:38 AM
                                                                                  ABEL ACOSTA
                                                                                          CLERK

                              NO. AP-77,043

            IN THE TEXAS COURT OF CRIMINAL APPEALS
                        AT AUSTIN, TEXAS
________________________________________________________________

                      THE STATE OF TEXAS,
                             Appellant,
                                 v.
                    LARRY RAY SWEARINGEN,
                              Appellee.
__________________________________________________________________

                               Arising from:

                     Cause No. 99-11-06435-CR
                     IN THE DISTRICT COURT
                FOR THE NINTH JUDICIAL DISTRICT
                  MONTGOMERY COUNTY, TEXAS
__________________________________________________________________

        BRIEF OF FORENSIC SCIENTISTS AS AMICI CURIAE
            IN SUPPORT OF MOTION FOR REHEARING
__________________________________________________________________

                                               Alfredo R. Pérez
                                               Tex. Bar No. 15776275
                                               Weil, Gotshal & Manges LLP
                                               700 Louisiana St., Suite 1700
                                               Houston, TX 77002

                                               Ralph Miller
                                               Tex. Bar No. 14105800
                                               Weil, Gotshal & Manges LLP
                                               200 Crescent Court, Suite 300
                                               Dallas, TX 75201-6850

                                               Counsel for Amici Curiae



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                         Identities of Parties, Counsel, and Amici Curiae

District Attorney:                           Brett W. Ligon
                                             District Attorney
                                             Montgomery County, Texas
                                             207 W. Phillips, Second Floor
                                             Conroe, Texas 77301

Counsel for the State:                       William J. Delmore III
                                             Assistant District Attorney
                                             Montgomery County, Texas
                                             207 W. Phillips, Second Floor
                                             Conroe, Texas 77301

Appellee:                                    Larry Ray Swearingen

Counsel for Appellee:                        James G. Rytting
                                             Hilder & Associates, P.C.
                                             819 Lovett Boulevard
                                             Houston, Texas 77006

                                             Bryce Benjet
                                             Tex. Bar. No. 24006829
                                             The Innocence Project
                                             40 Worth Street, Suite 701
                                             New York, New York 10013

Counsel for Amici Curiae:                    Alfredo R. Pérez
                                             Tex. Bar No. 15776275
                                             Weil, Gotshal & Manges LLP
                                             700 Louisiana St., Suite 1700
                                             Houston, TX 77002

                                             Ralph Miller
                                             Tex. Bar No. 14105800
                                             Weil, Gotshal & Manges LLP
                                             200 Crescent Court, Suite 300
                                             Dallas, TX 75201-6850



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Amici Curiae:

Greg Hampikian, Ph.D: Dr. Hampikian is Professor of Biology at Boise State
University, Idaho. He has been qualified as a DNA expert in Texas, and has
worked on Forensic DNA cases across the United States and overseas. Dr.
Hampikian is the author of numerous studies concerning human DNA testing
(including a study of 194 exonerations), holds patents in forensic technology and
has been involved in over a dozen DNA exonerations. He is Executive Director of
the Idaho Innocence Project.

Dan E. Krane, Ph.D: Dr. Krane is a Professor in the Department of Biological
Sciences at Wright State University in Dayton, Ohio, and recently served three
consecutive terms as president of the faculty at Wright State. He has testified in
more than 110 criminal cases in which DNA evidence was presented (in more than
20 different States as well as in Australia and in Belfast Crown Court and the
Central Criminal Court of London) as an expert for both the prosecution and
defense in the areas of population genetics, molecular biology, and bioinformatics.
Dr. Krane is also the president and a co-founder of Forensic Bioinformatic
Services, Inc., where he has overseen the development and implementation of
software designed to automatically and objectively review STR DNA testing
results. Two different governors of the Commonwealth of Virginia appointed him
to Virginia’s Scientific Advisory Committee—a panel of 12 experts that oversees
policies and practices of Virginia’s Department of Forensic Science—and in that
capacity, he chaired Virginia’s subcommittees on familial searching and Y-STR
validation and testing protocols. Dr. Krane graduated with a Bachelor’s degree for
a double major in Biology and Chemistry from John Carroll University and a Ph.D.
in Biochemistry from the Cell and Molecular Biology Department at the
Pennsylvania State University. He has also done post-doctoral studies in the
Genetics Department of Washington University’s Medical School and in the
Department of Organismic and Evolutionary Biology at Harvard University. He
has published over fifty peer-reviewed papers, many of which are directly related
to forensic DNA testing, particularly in the areas of using DNA profiles to generate
investigative leads (i.e. familial searching) and increasing the objectivity and
sensitivity of current DNA typing methodologies, and is the lead author of the
best-selling undergraduate textbook in the field of bioinformatics.

Joseph E. Warren, Ph.D: Dr. Warren has been a faculty member at the
University of North Texas Health Science Center since January of 2002 and has
taught courses including Biological Evidence Examination, Overview of Forensic
Science, Expert Witness Testimony in Forensic Science, Molecular Methods in

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Forensic Genetics, Basic Laboratory Methods in Forensic Genetics and Bloodstain
Pattern Analysis. Dr. Warren has been recognized as an expert in Forensic
Biology, Forensic DNA Analysis, Bloodstain Pattern Analysis and Microscopic
Hair and Fiber Analysis in courts in six states (Texas, Louisiana, Oklahoma,
Mississippi, Delaware and Wisconsin), which included admissibility hearings for
STR DNA analysis in Delaware and Louisiana and mitochondrial DNA analysis in
Mississippi. He has testified on DNA policy before the Louisiana State
Legislature. His research include DNA damage and repair and its application to
forensic analysis, PCR Inhibition, DNA analysis of skeletal remains, mitochondrial
DNA mutation and variation, Y-STR analysis, forensic DNA validation and
bloodstain pattern analysis and interpretation. His prior work experience includes
working as a case consultant for Genescreen, Inc. in Dallas, Texas from 2001 to
2002, where he ran the mitochondrial DNA test section of their forensic laboratory,
initiated research and development in Y chromosome STR analysis, and assisted
the Director of Operations and the Technical Leader in receiving ASCLD
accreditation in 2001; as Director of the Forensic Laboratory at ReliaGene
Technologies, Inc. from 1999 to 2001; in the Tarrant County Medical Examiners’
Office in fort Worth, Texas from 1990 to 1999; and as Chief Forensic Molecular
Biologist for a private DNA testing laboratory from 1988 to 1990. Dr. Warren
received his BS and MS degrees in Biology from Tulane University in New
Orleans, LA and his PhD. in Molecular Biology from the University of North
Texas in Denton, TX.

Rhonda C. Williams, Ph.D: Dr. Williams is a CODIS Analyst and Criminalist III
on the Crime Scene Team at the Oklahoma State Bureau of Investigation, and
adjunct faculty in the Forensics and Biology programs of the University of Central
Oklahoma. She previously worked at the Harris County Institute of Forensic
Sciences (“HCIFS”) in Houston, Texas from May 2006 to June 2014, including as
Team Leader of HCIFS’s Trace Evidence Collection Team from 2011 to June
2014, and as a DNA Analyst II. She was adjunct faculty in the Pathology
Department of the Baylor College of Medicine in Houston, Texas between 2007
and 2014. Dr. Williams has testified in numerous trials as a DNA expert, has
provided DNA collection and preservation training for law enforcement and
medical examiners, and has authored numerous papers on DNA collection,
preservation, and contamination. Dr. Williams has a Bachelor of Science in
Biochemistry from the University of Oklahoma, and a Ph.D and a Master of Sciene
in Biochemstry and Molecular Biology from the University of Oklahoma Health
Sciences Center.



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Arthur Young: Mr. Young is a forensic biology specialist with 24 years of
experience at the bench. His expertise includes forensic serology and DNA
analysis, as well as obtaining results from unconventional sources. His career
includes a decade in the public sector and a decade in the private sector, before
launching his own forensic laboratory. He remains an active analyst, continuing to
examine evidence, analyze samples, issue reports, and provide testimony, as well
as conduct research."




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                                             Table of Contents
STATEMENT OF INTEREST ..................................................................................1
SUMMARY OF ARGUMENT .................................................................................1

ARGUMENT .............................................................................................................4

I.        Standards for When to Allow Post-Conviction DNA Testing Should
          Be Consistent with Use of DNA Testing Technology Today .........................4

II.       Standards for When to Allow Post-Conviction DNA Testing Should
          Be Consistent with Use of DNA Database Comparisons Today ..................11
III.      Standards for When to Allow Post-Conviction DNA Testing Should
          Be Consistent with Today’s View of DNA Testing and Database
          Comparisons
          as More Reliable than Many Other Forms of Evidence ................................15

CONCLUSION ........................................................................................................17




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                                       TABLE OF AUTHORITIES

                                                                                                                Page(s)

Cases
Ex parte Arledge,
   No. 21,693 (13th Dist. Ct., Navarro County, Tex. Feb. 11, 2013) ..................... 14

Illinois v. Thames,
    Case No. 95-CR-9676 (Ill. Cir. Ct. Cook Cnty. Nov. 16, 2011),
    http://www.lb7.uscourts.gov/documents/12c9170.pdf ................................... 5, 14
Ex parte Jackson,
   366 S.W.3d 201 (Tex. Crim. App. 2012) ....................................................... 5, 14

Jackson v. Day,
   1997 WL 450202 (5th Cir. July 16, 1997) ......................................................... 16

Maryland v. King,
  133 S. Ct. 1958 (2013) ........................................................................................ 13

Ex parte Morton,
   2011 WL 4827841 (Tex. App. Crim. Oct. 12, 2011) ......................................... 14
Pennsylvania v. Yarris,
  No. 690-OF1982 (Pa. Ct. Com. Pl. Del. Cnty. Sept. 3, 2003).............................. 5
Vaughn v. State,
  646 S.E.2d 212 (Ga. 2007) ................................................................................... 8
Ex parte Wallis,
   2007 WL 57969 (Tex. Crim. App. Jan. 10, 2007)................................................ 7

Ex parte Williams,
   No. AO-76,820 (Tex. Crim. App. June 20, 2012 ............................................... 14

Statutes & Rules
Katie Sepich Enhanced DNA Collection Act of 2012, Pub. L. No. 112-253, 126
  Stat. 2407 ............................................................................................................ 13

Tex. Code Crim. Proc. Ann. art. 64.03(a)(2)(A) (West Supp. 2015) ............4, 15, 17


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Tex. Rules of Evid., Rule 702 (effective Apr. 1, 2015) ............................................. 4

Other Authorities
Byron Halsey, Innocence Project, http://www.innocenceproject.org/cases-false-
  imprisonment/byron-halsey .................................................................................. 6

Calvin Willis, Innocence Project, http://www.innocenceproject.org/cases-false-
   imprisonment/calvin-willis ................................................................................... 6

Cathy Woods, Innocence Project, http://www.innocenceproject.org/cases-false-
   imprisonment/cathy-woods................................................................................... 6

CODIS—NDIS Statistics, FBI, https://www.fbi.gov/about-us/lab/biometric-
  analysis/codis/ndis-statistics (last updated Oct. 2015) ....................................... 13

DNA Arrestee Laws, Nat’l Conf. of State Legislatures, http://www.ncsl.org/
  research/civil-and-criminal-justice/dna-arrestee-laws.aspx ............................... 13

DNA Exonerations Nationwide, Innocence Project (Oct. 26, 2015),
  http://www.innocenceproject.org/free-innocent/improve-the-law/fact-
  sheets/dna-exonerations-nationwide ................................................................... 16
DNA for the Defense Bar, Nat’l Inst. of Justice, at 161 (June 2012),
  https://www.ncjrs.gov/pdffiles1/nij/237975.pdf................................................. 17

DOJ, Advancing Justice Through DNA Technology: Using DNA to Solve Crimes,
  http://www.justice.gov/ag/advancing-justice-through-dna-technology-using-
  dna-solve-crimes ...........................................................................................12, 14
DOJ, FBI Laboratory 2007 Report, https://www.fbi.gov/about-us/lab/
  lab-annual-report-2007 ....................................................................................... 13

DOJ, Post-Conviction DNA Testing: Recommendations for Handling Requests, at
  xiii (Sept. 1999), https://www.ncjrs.gov/pdffiles1/nij/177626.pdf#page=66 .... 12
DOJ, Press Release, Sept. 10, 2015, http://www.justice.gov/opa/pr/
  vice-president-biden-and-attorney-general-lynch-announce-41-million-grant-
  initiative-address ................................................................................................... 8

DPS, Best Practices for Collection, Packaging, Storage, Preservation, and
  Retrieval of Biological Evidence (Oct. 30, 2012), https://www.txdps.state.tx.us/
  CrimeLaboratory/documents/labBP01BestPractice.pdf ....................................... 6

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DPS, DNA Database Helping Texas Law Enforcement Solve Crimes (Dec. 12,
  2012), http://www.dps.texas.gov/director_staff/media_and_communications/
  2012/pr121212.htm ............................................................................................. 14

DPS, DNA Database Helping Texas Law Enforcement Solve Crimes (May 4,
  2005), https://www.dps.texas.gov/director_staff/public_information/2005/
  pr050405.htm ...................................................................................................... 14

FAQs on the CODIS Program and the Nat’l DNA Index Sys., FBI,
  https://www.fbi.gov/about-us/lab/biometric-analysis/codis/codis-and-
  ndis-fact-sheet ....................................................................................................... 8

Freda Solomon and David Hauser, The Influence of CODIS DNA Testing on the
   Arrest and Prosecution of Burglary and Sexual Assault Cases in New York
   City: An Exploratory Study, N.Y.C. Criminal Justice Agency, Inc.
   (June 2011).......................................................................................................... 12
Hair, Minn. Bureau of Criminal Apprehension,
  https://dps.mn.gov/divisions/bca/bca-divisions/forensic-science/Pages/trace-
  hair.aspx ................................................................................................................ 8
Jerry Miller, Nw. Pritzker School of Law,
   http://www.law.northwestern.edu/legalclinic/wrongfulconvictions/
   exonerations/il/jerry-miller.html ......................................................................... 15

John Roman, et al., Urban Institute, The DNA Field Experiment: Cost-
   Effectiveness Analysis of the Use of DNA in the Investigation of High Volume
   Crimes (Apr. 2008) ............................................................................................. 10

Joseph Frey, Innocence Project, http://www.innocenceproject.org/cases-false-
   imprisonment/joseph-frey ..................................................................................... 5
Karl McDonald, DNA Forensic Testing and Use of DNA Rape Kits in Cases of
  Rape and Sexual Assault, Forensic Magazine (Jan. 26, 2015),
  http://www.forensicmag.com/articles/2015/01/dna-forensic-testing-and-use-
  dna-rape-kits-cases-rape-and-sexual-assault ........................................................ 7

Katherine Driessen and Mike Morris, Rape Kit Backlog Yields 19 New Suspects,
  Houston Chronicle, Oct. 16, 2014, http://www.houstonchronicle.com/news/
  houston-texas/houston/article/Rape-kit-backlog-yields-19-new-suspects-
  5805359.php.......................................................................................................... 8


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Larry Youngblood, Innocence Project, http://www.innocenceproject.org/cases-
   false-imprisonment/larry-youngblood .................................................................. 5
Maurice Possley, Christopher Ochoa, Nat’l Registry of Exonerations (June 2012),
  http://www.law.umich.edu/special/exoneration/pages/casedetail.aspx?
  caseid=3511 ........................................................................................................ 16

Rhonda Williams and Roger Kahn, Forensic DNA Collection at Death Scenes:
  A Pictoral Guide (2014) ....................................................................................... 9




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                                STATEMENT OF INTEREST

                    Amici curiae are forensic scientists who respectfully submit this brief

to provide a scientific and investigatory perspective on DNA testing. Amici curiae

have no interest in any party to this litigation, nor any stake in the outcome of this

case.

                                SUMMARY OF ARGUMENT

                    This Court’s analysis of post-conviction “exculpatory results”

articulated in the Majority Opinion delivered in this case on October 28, 2015

should be updated to be consistent with the DNA testing that the Amici regularly

perform in their professional practices today on evidence collected in criminal

investigations, and the results they obtain from that DNA testing. The standard

this Court cited in footnote 17 of the Majority Opinion, repeating a standard from

2007, restricts the evidence that may be considered for “exculpatory results” by

limiting it to that which excludes the convicted person. Amici believe that this

standard focuses on outdated notions of DNA testing results, and that any standard

applied today must take into account the advancements of science since 2007 and

consider all realistically possible results.

                    The Majority’s standard places irrational limitations on access to

DNA testing. It fails to take into account the enhanced ability of current

technology to identify the specific source of DNA and the impact of evaluating


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collective results from testing multiple pieces of evidence for DNA. It also

significantly limits consideration of the types of evidence for which DNA testing is

highly effective and commonly used today, including rape kits, blood evidence,

and trace evidence. While the Majority’s focus on only exclusionary test results

may have been consistent with the use of DNA testing a decade ago, the standard

today for “exculpatory results” should reflect current best practices for forensic

scientists. These include testing a wide variety of crime scene trace evidence,

blood, and semen because of the heightened sensitivity of today’s DNA testing

technology, and comparing DNA profiles against known suspects and offenders in

DNA databases, such as the FBI’s Combined DNA Index System database

(“CODIS”).

                    The science of forensic DNA testing has advanced substantially in

recent years, and these advancements have changed both the way DNA testing is

used in the criminal justice system and the emphasis placed on DNA evidence over

other types of evidence. These advancements make it possible to obtain useful

DNA results that can conclusively inculpate or exculpate an individual from

evidence that, even in the recent past, would have been considered inappropriate

for testing by forensic investigators, law enforcement personnel, prosecutors,

defense attorneys, judges, and juries. This includes testing previously untested

rape kits for DNA; hair evidence for mitochondrial DNA; and items such as


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ligatures, the victim’s clothing, fingernail scrapings, and cigarette butts, for trace

evidence. It also includes considering those test results collectively. Further,

comparison of DNA profiles from crime scenes against CODIS is now widely

recognized as a critical tool in investigations, including in Texas, and its use in

criminal cases has expanded exponentially as a result.

                    It is important to recognize that, as a matter of forensic science, the

way current DNA testing and database comparison is used (and the nature of the

results obtained) is the same, regardless of whether the testing is done in a new

criminal investigation or in the post-conviction context. Just as forensic DNA

testing has been used with great success to solve cold cases through the

identification of a known suspect or obtaining a hit in CODIS, the same

exculpatory results can and have been obtained in post-conviction cases to prove

innocence. Therefore, the standard for exculpatory results from post-conviction

DNA testing should accurately reflect how forensic scientists use DNA testing and

databases in practice.

                    The broader access to post-conviction DNA testing that may result

from an updated standard for exculpatory post-conviction DNA results will not

negatively impact the criminal justice system. DNA testing has not been shown to

create a risk of exonerating those who are guilty. Further, guilty persons are

inherently unlikely to make frivolous requests for testing that would confirm their


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guilt. Concerns regarding contamination of older evidence or the potential for

other misleading results are not unique to the post-conviction context; they can be

accounted for in the same way courts consider such results in cold case

prosecutions and through the gateway screening provisions of Texas Rule of

Evidence 702.

                    In recent years, post-conviction DNA testing has proven the

innocence of hundreds of wrongfully convicted men and women, and CODIS has

frequently identified the actual perpetrators of the crime. These cases used more

advanced DNA testing than had been available at the time of the conviction, and in

some instances, at the time of prior post-conviction testing. Thus, interpreting the

concept of “exclusionary results” in Chapter 64 of the Texas Code of Criminal

Procedure in a manner consistent with real-world use of DNA testing technology

and databases by forensic scientists today will further the laudable goals of

convicting the guilty while protecting the innocent.

                                         ARGUMENT

I.        Standards for When to Allow Post-Conviction DNA Testing Should Be
          Consistent with Use of DNA Testing Technology Today
                    The capability of DNA testing to produce “exculpatory results,” even

in the presence of competing circumstantial evidence to the contrary, has advanced

significantly in almost all aspects of DNA analysis, in recent years. The

technology is more sensitive, and also less costly and more readily available to

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conventional forensic laboratories, which allow for more accurate, rapid and

readily available results from DNA testing for a larger number of legal proceedings

and criminal cases. This has led to dramatic changes in the application of DNA

testing to criminal cases. Numerous cases evidence the effectiveness of these

advances in DNA testing technology. They show that the standard for whether to

allow post-conviction DNA testing must take into account the current state of

forensic science, and reflect advances and updated practices because of their

proven ability to both exonerate and convict.1

                    The best practices that forensic scientists now follow in testing for

DNA evidence in a variety of crimes are the result of both improvements in

technology and the determination that the results from such testing is accurate and

a critical tool in solving crimes, whether new or old. Specifically, the Texas
1
  For example, four men convicted of a 1994 rape and murder, each based on their own
confessions or guilty pleas, filed a motion for more advanced DNA testing than was conducted
before trial. The new STR-DNA testing, done in 2010, excluded all four defendants while
identifying another offender through CODIS. Charges against all four defendants were vacated.
Illinois v. Thames, Case No. 95-CR-9676 (Ill. Cir. Ct. Cook Cnty. Nov. 16, 2011)
http://www.lb7.uscourts.gov/documents/12c9170.pdf; see also Pennsylvania v. Yarris, No. 690-
OF1982 (Pa. Ct. Com. Pl. Del. Cnty. Sept. 3, 2003) (order vacating the 1982 conviction of
Yarris, who was sentenced to death for murder, rape, and abduction, even though successive
rounds of post-conviction DNA testing were inconclusive, because PCR-enhanced DNA testing
performed in 2003 on gloves, fingernail scrapings, and sperm excluded Yarris); Larry
Youngblood, Innocence Project, http://www.innocenceproject.org/cases-false-
imprisonment/larry-youngblood (degraded evidence tested with newer scientific techniques
exonerated Youngblood and led to conviction of actual perpetrator); Joseph Frey, Innocence
Project, http://www.innocenceproject.org/cases-false-imprisonment/joseph-frey (post-conviction
STR-DNA testing showed DNA from a convicted sex offender and exonerated Frey); Ex parte
Jackson, 366 S.W.3d 201 (Tex. Crim. App. 2012) (original scientific testimony supported a
match between semen from a rape kit and Jackson, but post-conviction DNA analysis excluded
Jackson and a CODIS search identified two incarcerated offenders who admitted to the crime).


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Department of Public Safety’s (“DPS”) best practices for forensic scientists now

include collection of items including rape kits, hair, fingernail scrapings, ligatures,

clothing, and cigarette butts, because of the recognition that these items can

contain the DNA evidence that establishes the identity of the person who

committed the offense.2 These best practices are supported by numerous cases,

including at post-conviction, that relied on testing the types of evidence that exist

in this case, including rape kits, hairs, ligatures, fingernail scrapings, clothing, and

cigarette butts.3

                    DNA testing is particularly probative where multiple pieces of

evidence exist that can be tested for DNA. Though the absence of evidence cannot

be taken as proof of absence, the failure to detect the suspect’s DNA on any

evidence collected from crime scenes can constitute “exculpatory results” that can

overcome strong circumstantial evidence due to the extreme sensitivity of today’s

DNA tests. Similarly, the discovery of a third party’s DNA on multiple pieces of

2
 DPS, Best Practices for Collection, Packaging, Storage, Preservation, and Retrieval of
Biological Evidence (Oct. 30, 2012),
https://www.txdps.state.tx.us/CrimeLaboratory/documents/labBP01BestPractice.pdf.
3
  E.g., Cathy Woods, Innocence Project, http://www.innocenceproject.org/cases-false-
imprisonment/cathy-woods (post-conviction DNA testing on a cigarette butt that was not tested
prior to trial exonerated Woods and identified a male profile that subsequently generated a
CODIS hit); Calvin Willis, Innocence Project, http://www.innocenceproject.org/cases-false-
imprisonment/calvin-willis (post-conviction DNA testing on boxer shorts and fingernail
scrapings found several DNA samples, including one male profile on both pieces of evidence,
and exonerated Willis, who was excluded as a contributor); Byron Halsey, Innocence Project,
http://www.innocenceproject.org/cases-false-imprisonment/byron-halsey (post-conviction DNA
testing of cigarette butts near the crime scene exonerated Halsey and implicated a third party).


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evidence can be exculpatory. E.g., Ex parte Wallis, 2007 WL 57969 (Tex. Crim.

App. Jan. 10, 2007) (Wallis’s 1989 conviction for burglary with intent to commit

sexual assault was vacated after a second round of post-conviction DNA testing

found one consistent DNA profile on the rape kit and cigarette butts). Evidence

available for DNA testing must therefore be considered not only individually but

also collectively when determining its potential for “exculpatory results.”

                    In this case, there are several items that would routinely be tested for

DNA evidence that can, taken together, exculpate or inculpate a suspect, where

they would not have been tested in the recent past. For example, the rape kit in this

case has not been tested for DNA evidence. But technological improvements have

made it possible to find DNA evidence where it was previously impossible,

including the ability to test for non-sperm DNA in addition to sperm DNA, and the

greater sensitivity in DNA testing that makes it possible to test for minute amounts

of semen that were previously undetectable.4 The recent focus nationwide and in

Texas on testing rape kits, and funding that testing, shows that today, it is widely

accepted that rape kits should be tested because the results assist in convicting the




4
  E.g., Karl McDonald, DNA Forensic Testing and Use of DNA Rape Kits in Cases of Rape and
Sexual Assault, Forensic Magazine (Jan. 26, 2015),
http://www.forensicmag.com/articles/2015/01/dna-forensic-testing-and-use-dna-rape-kits-cases-
rape-and-sexual-assault (noting DNA samples from rape kits can now be tested for alternative
genetic evidence, such as saliva samples).


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guilty and potentially preventing future crimes.5 In Texas, the Houston Police

Department recently eliminated its backlog of rape kits, which had gone untested

for up to 30 years, while the Texas legislature appropriated $5 million in 2015 to

assist with testing the entire state’s backlog of rape kits.6

                    Similarly, DNA testing of hair evidence has improved. For example,

hair can now be tested for DNA even if it has no root by using mitochondrial DNA

testing, which excludes the vast majority of individuals as the source of the hair.

E.g., Hair, Minn. Bureau of Criminal Apprehension,

https://dps.mn.gov/divisions/bca/bca-divisions/forensic-science/Pages/trace-

hair.aspx (hair that has no root can be sent for mitochondrial DNA testing); FAQs

on the CODIS Program and the Nat’l DNA Index Sys., FBI,

https://www.fbi.gov/about-us/lab/biometric-analysis/codis/codis-and-ndis-fact-

sheet (mitochondrial DNA can be submitted to CODIS); Vaughn v. State, 646

S.E.2d 212, 214 (Ga. 2007) (mitochondrial DNA analysis “is more applicable for

exclusionary, rather than identification, purposes”).
5
  DOJ, Press Release, Sept. 10, 2015, http://www.justice.gov/opa/pr/vice-president-biden-and-
attorney-general-lynch-announce-41-million-grant-initiative-address (announcing $41 million in
grant awards to reduce number of untested sexual assault kits nationwide because up to 50% of
previously unsolved rapes are solved through these untested kits and bringing the rapists to
justice gets them off the streets).
6
  Katherine Driessen and Mike Morris, Rape Kit Backlog Yields 19 New Suspects, Houston
Chronicle, Oct. 16, 2014, http://www.houstonchronicle.com/news/houston-
texas/houston/article/Rape-kit-backlog-yields-19-new-suspects-5805359.php (noting Houston
had nearly completed testing backlogged DNA samples from 9,750 cases, including 6,600 rape
kits dating back to 1987, and DNA from 1,031 of those cases had produced CODIS hits).


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                    Finally, testing trace DNA samples (which are samples that fall below

recommended thresholds at any stage of the scientific analysis) gathered from non-

biological materials is a recent phenomenon that today may be used in both pre-

and post-conviction testing, including homicide, sexual assault, and property crime

cases in Texas. Within the last decade, trace DNA testing has become much more

sensitive, while its cost has significantly decreased. Trace DNA testing is now

routinely attempted on practically any item handled or used or left by the

perpetrator of a crime.7 Studies done in 2007 and 2008 show that testing trace

DNA testing more broadly, beyond the most violent crimes, is effective and can be

more reliable than non-DNA investigative tools. The Harris County (Houston,

Texas) Institute of Forensic Sciences (“HCIFS”) began testing large numbers of

trace DNA samples from property crimes in 2007 as an experiment. After the

HCIFS found that testing trace DNA samples from property crimes frequently

provided nearly a full profile against individuals in CODIS, investigators

increasingly began to collect and submit trace DNA evidence. Today, the HCIFS

has an accredited Trace DNA Evidence Collection Team, which focuses

specifically on collecting trace DNA in all rape, homicide, and property crime

cases. Rhonda Williams and Roger Kahn, Forensic DNA Collection at Death

7
  For example, current STR typing, miniSTR and Y-STR DNA testing now make it possible to
acquire and test DNA from incredibly minute samples of biological materials, including
transferred skin cells, traces of saliva, and cells contained in sweat.


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Scenes: A Pictoral Guide, at 1-2 (2014); also John Roman, et al., Urban

Institute, The DNA Field Experiment: Cost-Effectiveness Analysis of the Use of

DNA in the Investigation of High Volume Crimes, at 153-54 (Apr. 2008),

https://www.ncjrs.gov/pdffiles1/nij/grants/222318.pdf (2008 study concluding that

trace DNA testing is effective in solving property crimes and homicide, and can be

more effective and reliable than other investigative tools, including fingerprinting,

eyewitness testimony, and impression evidence). The nonbiological evidence that

exists in this case—ligatures, fingernail scrapings, cigarette butts, and victim’s

clothing—would now be tested in Harris County and elsewhere as a matter of

course for trace DNA because forensic scientists expect to find trace biological

evidence on them, whereas in the past, these items would only have been checked

for obvious blood or semen stains.

                    Thus, the standard for “exculpatory results” should reflect forensic

scientists’ current best practices in determining what evidence should be tested for

DNA, and recognize that the collective results from that evidence is probative in

conclusively determining guilt or innocence, rather than allowing a standard for

only new and cold cases that reflects those best practices, while relegating post-

conviction cases to a standard that is consistent with DNA testing practices from a

decade ago.




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II.       Standards for When to Allow Post-Conviction DNA Testing Should Be
          Consistent with Use of DNA Database Comparisons Today
                    Comparison of DNA profiles from sources of evidence collected from

a crime scene to an individual in DNA databases such as CODIS should be

considered by this Court in determining whether inculpatory evidence can be

overcome through DNA testing. The existence of CODIS has dramatically

increased the usefulness of DNA testing by providing a source against which DNA

evidence can be compared even in cases where there is no known suspect. CODIS

is a major reason why DNA testing has gained the acceptance it now enjoys, and

the effectiveness of comparing DNA evidence against CODIS expands not just to

new investigations or unsolved cold cases, but to any legitimate criminal matter

where it can provide the truth otherwise hidden, including post-conviction cases in

which no, improper, or outdated DNA testing was done.

                    The principal purpose of DNA databases such as CODIS is to allow

federal, state, or local criminal justice or law enforcement agencies to compare

DNA profiles of offenders maintained in the system for the purpose of

identification, arrest, and prosecution of individuals, or the exoneration of suspects.

Due to advances in DNA testing technology, DNA databases have grown

tremendously in recent years, and are now recognized as an effective and standard

tool in the investigation and prosecution of crimes, as well as the exoneration of

suspects. In the past, DNA testing was frequently considered only for its potential

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value in showing exclusionary results that could exonerate a person because of

technological limitations. Thus, a U.S. Department of Justice (“DOJ”) report from

1999 discussed DNA testing only as a possible method for finding exclusionary

results that would either exonerate a petitioner or support his claim of innocence.

DOJ, Post-Conviction DNA Testing: Recommendations for Handling Requests, at

xiii (Sept. 1999), https://www.ncjrs.gov/pdffiles1/nij/177626.pdf#page=66.

                    In comparison, today, DNA testing is generally used to solve crimes

by comparing the DNA at a crime scene to both the DNA of an individual suspect

and to profiles in DNA databases like CODIS.8 CODIS hits are now widely

accepted and commonly used for comparisons not just to the specific case at hand,

but to connect arrestees to past crimes. A match to a DNA profile in CODIS

influences the outcomes in criminal justice cases.9

                    Recognizing the persuasiveness of a match in CODIS to DNA from a

crime scene as evidence, and its effectiveness in leading to convictions and

exonerations, state and federal agencies have worked in recent years to expand


8
 DOJ, Advancing Justice Through DNA Technology: Using DNA to Solve Crimes,
http://www.justice.gov/ag/advancing-justice-through-dna-technology-using-dna-solve-crimes.
9
  E.g., Freda Solomon and David Hauser, The Influence of CODIS DNA Testing on the Arrest
and Prosecution of Burglary and Sexual Assault Cases in New York City: An Exploratory Study,
N.Y.C. Criminal Justice Agency, Inc., at 7, 11-12, 34-36, 47 (June 2011) (determining based on
a 2008 review of DNA testing of evidence from burglary and sexual assault cases that a CODIS
match was found in 54.6% of those cases, and that a match in CODIS can influence arrest and
conviction rates, and the likelihood of charge severity depreciation in those cases).


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CODIS and clear backlogs of DNA testing. The CODIS database itself also has

expanded dramatically in recent years, resulting in a corresponding increase in the

number of CODIS hits obtained. In the 12 years between its inception in 1995 and

2007, the FBI reported that CODIS had collected approximately 5.3 million

offender profiles and 200,000 forensic profiles, and had produced approximately

62,000 hits.10 In comparison, as of September 2015, the FBI reported that CODIS

contained nearly 12 million offender profiles, over 2.1 million arrestee profiles,11

and over 650,000 forensic profiles, and had produced nearly 300,000 hits.12

                    Texas itself now recognizes the increasing importance of CODIS as

an investigatory and evidentiary tool. In December 2012, the Texas DPS, which is

the administrator for CODIS in Texas, reached its 10,000th offender cold hit (i.e.,

unexpected DNA matches that help solve open cases), with 9,000 of those hits

occurring in the last five years, versus only 1,000 cold hits occurring in the
10
  DOJ, FBI Laboratory 2007 Report, at 17, https://www.fbi.gov/about-us/lab/lab-annual-report-
2007.
11
   Because of CODIS’s effectiveness as an investigatory and evidentiary tool, DNA profiles
taken from arrestees prior to conviction, which the FBI did not categorize in 2007, are now
entered into and tracked in CODIS. The U.S. Supreme Court ruled collection of these DNA
profiles constitutional in 2013. Maryland v. King, 133 S. Ct. 1958 (2013). Currently, 29 states,
the federal government, the Department of Defense, and Puerto Rico upload DNA profiles of
various categories of arrestees. E.g., DNA Arrestee Laws, Nat’l Conf. of State Legislatures,
http://www.ncsl.org/research/civil-and-criminal-justice/dna-arrestee-laws.aspx (listing states
with laws for collection of DNA prior to conviction, including Texas); Katie Sepich Enhanced
DNA Collection Act of 2012, Pub. L. No. 112-253, 126 Stat. 2407 (implemented in 2012 to
provide grants to states to implement DNA arrestee collection processes).
12
   CODIS—NDIS Statistics, FBI, https://www.fbi.gov/about-us/lab/biometric-analysis/codis/ndis-
statistics (last updated Oct. 2015).


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preceding 11 years.13 Additionally, as of December 2012, the Texas DPS had

uploaded over 660,000 offender DNA samples into the Texas portion of CODIS,

versus only approximately 180,000 offender DNA profiles in 2004.14

                    As the DOJ has recognized, there is no difference in the effectiveness

of a CODIS match as evidence, whether used against DNA evidence tested before

or after conviction.15 Numerous post-conviction DNA testing exonerations have

resulted in CODIS matches, which act as exculpatory evidence, including in

several recent cases in Texas.16


13
   DPS, DNA Database Helping Texas Law Enforcement Solve Crimes (Dec. 12, 2012),
http://www.dps.texas.gov/director_staff/media_and_communications/2012/pr121212.htm.
14
   DPS, DNA Database Helping Texas Law Enforcement Solve Crimes (Dec. 12, 2012),
http://www.dps.texas.gov/director_staff/media_and_communications/2012/pr121212.htm; DPS,
DNA Database Helping Texas Law Enforcement Solve Crimes (May 4, 2005),
https://www.dps.texas.gov/director_staff/public_information/2005/pr050405.htm.
15
   DOJ, Advancing Justice Through DNA Technology: Using DNA to Solve Crimes,
http://www.justice.gov/ag/advancing-justice-through-dna-technology-using-dna-solve-crimes
(advocating use of post-conviction DNA testing, and citing in support two cases in which post-
conviction testing matched other individuals in CODIS and exonerated original defendants).
16
   E.g., Ex parte Williams, No. AO-76,820 (Tex. Crim. App. June 20, 2012),
http://tx.findacase.com/research/wfrmDocViewer.aspx/xq/fac.20120620_0004721.TX.htm/qx
(Williams was convicted of aggravated sexual assault in 1985 but this Court set his conviction
aside in 2012 when updated testing excluded Williams and matched a CODIS profile); Ex parte
Morton, 2011 WL 4827841 (Tex. App. Crim. Oct. 12, 2011) (Morton was convicted of murder
in 1988 and a first round of post-conviction DNA testing was inconclusive, but this Court set
Morton’s conviction aside after another round of post-conviction testing in 2011 of a bandana
and hair from the bandana revealed third party DNA that resulted in a CODIS hit); Ex parte
Arledge, No. 21,693 (13th Dist. Ct., Navarro County, Tex. Feb. 11, 2013) (Arledge was
exonerated after post-conviction DNA testing excluded Arledge and matched a CODIS profile);
Ex parte Jackson, 366 S.W.3d 201 (Tex. Crim. App. 2012) (original scientific testimony
supported a match between semen from a rape kit and Jackson, but post-conviction DNA
analysis excluded Jackson and matched CODIS profiles of two currently incarcerated offenders
who admitted to the crime); Illinois v. Thames, No. 95-CR-9676 (Ill. Cir. Ct. Cook Cnty. Nov.

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                    Thus, the standard for post-conviction testing of DNA should

recognize that comparison of DNA results to CODIS is a common practice today

and that the potentially exculpatory or inculpatory effects of a CODIS hit must be

considered in determining whether to allow post-conviction DNA testing.

III.      Standards for When to Allow Post-Conviction DNA Testing Should Be
          Consistent with Today’s View of DNA Testing and Database
          Comparisons as More Reliable than Many Other Forms of Evidence
                    The standards for whether to allow DNA testing must recognize that

evidence from DNA testing and database comparison is widely recognized today

as accurate and reliable, and can overcome other sources of evidence that are

otherwise perceived to provide “overwhelming” indication of guilt, including

confessions, guilty pleas, incriminating statements, eyewitness testimony, and

possession of crime scene evidence. Thus, in considering whether to allow DNA

testing in post-conviction cases under Chapter 64, this Court should consider

whether no or outdated DNA testing has occurred with respect to the evidence

requested to be tested.

                    DNA testing and database comparisons are now commonly used at the

early stages of investigation of a crime and in unsolved cold cases precisely

because DNA evidence is considered more accurate and reliable than other forms

16, 2011) (described supra p.5, n.1); Jerry Miller, Nw. Pritzker School of Law,
http://www.law.northwestern.edu/legalclinic/wrongfulconvictions/exonerations/il/jerry-
miller.html (post-conviction DNA testing excluded Miller and matched the CODIS profile of the
perpetrator, a serial rapist).


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of evidence. Similarly, DNA testing and database comparison evidence is even

more compelling than other evidence in its ability to overcome (or confirm) a

conviction, and is therefore a useful tool at the post-conviction stage.17 Moreover,

while contamination may be a concern in post-conviction cases, this concern

always exists, and is no different whether in a new case, cold case, or post-

conviction case.

                    In particular, as DNA testing evidence and DNA database

comparisons have become more prevalent in recent years, such DNA evidence is

now considered more accurate and reliable than guilty pleas or incriminating

statements, eyewitness testimony, and possession of crime scene evidence, and

should therefore be considered in post-conviction cases such as the present case,

even if some of the individual’s actions may be seen as incriminating. For

example, in approximately 25 percent of DNA exoneration cases, the defendants

had pled guilty, confessed to the crime, or made other incriminating statements.18


17
   In 1997, the Fifth Circuit reversed a district court’s grant of habeas petition to Willie Jackson
for a 1986 sexual assault for which Jackson’s brother had confessed in court to the crime.
Jackson was exonerated in 2006, after DNA testing ordered in his case conclusively linked his
brother, who was serving a life sentence for another later rape, to the crime. Jackson v. Day,
1997 WL 450202 (5th Cir. July 16, 1997); see also DNA Exonerations Nationwide, Innocence
Project (Oct. 26, 2015), http://www.innocenceproject.org/free-innocent/improve-the-law/fact-
sheets/dna-exonerations-nationwide (compiling over 300 post-conviction exonerations
nationwide based on DNA evidence).
18
   For example, Christopher Ochoa confessed to a 1998 rape and murder, provided details of the
crime not available publicly, pled guilty, and testified regarding those details at the trial of his
alleged coconspirator. DNA evidence later exonerated both Ochoa and his coconspirator, and
matched another man who confessed to the crime in 1998. Maurice Possley, Christopher Ochoa,

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                    Thus, the standard this Court applies to Chapter 64 should reflect the

best practices that forensic scientists now follow in testing DNA evidence and

comparing results to DNA databases because those practices are based on the

determination that those results can overcome what in the past may have appeared

to be overwhelming inculpatory evidence from other sources, including eyewitness

testimony placing an individual with the victim prior to the crime, possession of

crime scene evidence, and the individual’s own inculpatory actions that may

appear to be an acknowledgement of guilt.

                                        CONCLUSION

                    Today, DNA testing and DNA databases are standard tools used by

forensic scientists to assist in solving crimes and exonerating suspects. The ability

to test biological evidence from rape kits and hair, and to test nonbiological

evidence such as ligatures and cigarette butts for biological trace evidence, has

improved significantly. Testing such evidence is now recognized as best practices

in the field of forensic science due to the greater effectiveness of DNA testing and

database comparison. These practices exist because all parties involved in the

investigation and prosecution of crimes recognized that today, DNA testing and


Nat’l Registry of Exonerations (June 2012),
http://www.law.umich.edu/special/exoneration/pages/casedetail.aspx?caseid=3511; e.g., DNA
for the Defense Bar, Nat’l Inst. of Justice, at 161 (June 2012)
https://www.ncjrs.gov/pdffiles1/nij/237975.pdf (describing cases where DNA evidence
exonerated individuals who had confessed to crimes).


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database comparison results can conclusively inculpate or exculpate individuals.

                    The statutory definition given to “exculpatory results” cannot stand

still in time, nor should advancements in forensic science be circumscribed to new

crimes and cold cases. DNA testing and databases have proven to be effective in

exculpating individuals in the post-conviction context as well, and can overcome

otherwise overwhelming inculpatory evidence. The seven items of evidence at

issue in the present case would, without question, be tested for DNA and compared

against databases as a matter of course in new capital punishment cases in Texas

today because they would likely yield probative evidence of the identity of the

actual perpetrator.




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Dated: December 15, 2015

                              Respectfully submitted,

                               /s/ Alfredo R. Pérez

                              Alfredo R. Pérez
                              Tex. Bar No. 15776275
                              Weil, Gotshal & Manges LLP
                              700 Louisiana St., Suite 1700,
                              Houston, TX 77002

                              Ralph Miller
                              Tex. Bar No. 14105800
                              Weil, Gotshal & Manges LLP
                              200 Crescent Court, Suite 300
                              Dallas, TX 75201-6850

                              Counsel for Amici Curiae




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