Task force crafting procedures for handling DNA database hits in cold, closed cases

Questions arise on disclosure of new evidence in Kansas criminal investigations

By: - August 20, 2021 9:51 am
Sen. David Haley, a Democrat on the Legislature's task force on DNA evidence related to closed or cold cases, said Kansas officials should set the standard for distribution to prosecutors, law enforcement and defense attorneys relevant matches from DNA testing databases. (Sherman Smith/Kansas Reflector)

Sen. David Haley, a Democrat on the Legislature’s task force on DNA evidence related to closed or cold cases, said Kansas officials should set the standard for distribution to prosecutors, law enforcement and defense attorneys relevant matches from DNA testing databases. (Sherman Smith/Kansas Reflector)

TOPEKA — Members of the Legislature’s task force developing protocol for use of newly discovered DNA evidence in criminal cases endorsed better training of law enforcement officers, prosecutors and defense lawyers to keep valuable information from slipping through cracks of the justice system.

Two prosecutors on the task force were drawn Thursday to the idea of an ongoing educational program to boost appreciation for information on DNA matches available through the KBI’s Laboratory Information Management System, or LIMS. Prosecutors have access to LIMS, but there was consensus not all in the state were aware of this evidence trove. It was presumed many defense lawyers didn’t know much about LIMS or their ability to request database information on cases.

Butler County Attorney Darrin Devinney of the Alvin Sykes Cold Case DNA Task force said the state needs to vastly improve training of prosecutors, defense counsel and law enforcement officers regarding access to DNA evidence. (Screen capture/Kansas Reflector)

“Education is a huge component that I think we need to be developing,” said Darrin Devinney, the Butler County attorney and a member of the Alvin Sykes Cold Case DNA Task Force. “Not just for prosecutors, not just for law enforcement but it’s also for defense counsel. It’s for those individual defendants.”

The value of DNA evidence at trial and on appeal resonates in Kansas, where Floyd Bledsoe’s convictions for first-degree murder and sex crimes were vacated in Jefferson County in 2015. Bledsoe spent 16 years in prison for crimes committed by his brother, Tom, who left a suicide note implicating himself as previously untested DNA evidence emerged indicating Bledsoe was wrongfully convicted.

Sen. David Haley, a Democrat on the task force from Kansas City, Kansas, said the Legislature had an opportunity to place Kansas at the forefront nationally by implementing effective protocol for notifying everyone who should be informed of emergence of DNA evidence from crime scenes.

The process needs to guarantee all parties in closed or cold cases are made aware when a match is found in DNA registries, he said.

Two task force attorneys who work on cases of people who may have been falsely convicted of crimes expressed concern an imprecise approach to sharing DNA information among the KBI, local law enforcement agencies, forensics labs or the offices of prosecutors could deny individuals evidence capable of setting them free.

Tricia Rojo Bushnell, executive director of the Midwest Innocence Project in Kansas City, Missouri, said a defense attorney could file a request for prosecutors to conduct a LIMS search in Kansas. She suggested there ought to be clear legal requirements aimed at having DNA database reviews performed competently and results reported promptly.

“We might train people to log into it to look, but that’s not really a guarantee that somebody is looking,” she said.

Rep. John Carmichael, D-Wichita, said state law ought to define obligations of law enforcement and prosecutors to provide defendants and their lawyers DNA evidence on closed or cold cases. (Pool photo by Evert Nelson/Topeka Capital-Journal)

Task force member Justin Edwards, a deputy district attorney in Sedgwick County, said a statewide education process regarding LIMS should eliminate excuses for failure to pass DNA information to defendants. The KBI and the Kansas County and District Attorneys Association could play roles in that training.

“Hopefully,” Edwards said, “the expectation would be these reports are not just sitting in a cabinet somewhere and not being turned over to the defense.”

Without safeguards in law there remains a risk exculpatory forensic reports may not be provided to incarcerated people who don’t have pending cases affording them rights of discovery, said Alice Craig, a task force member with the University of Kansas’ Project for Innocence and Post-Conviction Remedies.

Rep. John Carmichael, a Wichita attorney and among four state legislators on the task force, said lawmakers should pass a statute spelling out how district and county attorneys as well as law enforcement officials were expected to reveal DNA database findings. The information ought to flow regardless of whether it is viewed as helpful or damaging to a defendant’s case, he said.

“There needs to be a bright line that judges can look at to determine whether or not a defendant’s rights have been violated,” Carmichael said.

Rep. Fred Patton, a Topeka Republican and chairman of the House Judiciary Committee, said the task force was granted a one-year extension until Dec. 1 to complete recommendations for timely transfer of data on DNA hits related to solved and unsolved cases. The people included in the information loop could include prosecutors, defense lawyers, crime victims, surviving relatives and organizations working for release of wrongfully convicted people.

The task force named for Sykes, a Kansas civil rights activist who died in March, is also expected to develop procedures for conducting “reasonable and timely” investigations of DNA hits.

State and local law enforcement officials in Kansas also make use of CODIS, or the Combined DNA Index System. It’s the searchable database supported by the FBI linking known DNA profiles from offenders to unknown DNA profiles from crime scenes. There are federal restrictions on access to reports generated by CODIS.

Brian Hill, the Shawnee County sheriff and a task force member, said he recalled that while working as a Topeka homicide investigator notification of law enforcement officers of CODIS hits was unnecessarily delayed.

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Tim Carpenter
Tim Carpenter

Tim Carpenter has reported on Kansas for 35 years. He covered the Capitol for 16 years at the Topeka Capital-Journal and previously worked for the Lawrence Journal-World and United Press International. He has been recognized for investigative reporting on Kansas government and politics. He won the Kansas Press Association's Victor Murdock Award six times. The William Allen White Foundation honored him four times with its Burton Marvin News Enterprise Award. The Kansas City Press Club twice presented him its Journalist of the Year Award and more recently its Lifetime Achievement Award. He earned an agriculture degree at Kansas State University and grew up on a small dairy and beef cattle farm in Missouri. He is an amateur woodworker and drives Studebaker cars.

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