APD Knew About Moldy Rape Kits Back in April

Austin Police Chief Brian Manley (Photo by John Anderson)

Published in the Austin Chronicle, Friday, July 7, 2017

Mold has been found growing on the exteriors of 849 rape kits being stored inside the Austin Police Department's evidence warehouse in East Austin, on more than half of the 1,629 untested kits held in that refrigerator. Signature Science – the local lab APD contracted to analyze incoming and backlogged DNA evidence after the lab's June 2016 shuttering – first discovered the mold on a piece of clothing stored inside a kit. But although they notified APD on April 25, it took two months for word to get out – until a June 27 report in the Austin Amer­i­can-Statesman, six days after Assist­ant Chief Troy Gay and Com­mander Mike Eveleth confirmed the issue to local stakeholders during a weekly meeting.

A public information request to Capital Area Private Defender Service indicates that neither Gay nor Eveleth had plans to disclose information about the mold during that meeting. APD was "asked about the mold issues," according to a June 23 memo Gay sent to the Travis County District Attor­ney's operations chief Gregg Cox, and APD "provided the group with the information."

Cox confirmed to the Chronicle that the D.A.'s Office had not been made aware of any mold prior to the June 23 meeting, saying he was "disappointed" by the delay. "We all feel the stakeholders should have been notified immediately – especially the prosecution," he said. But Cox considers APD's remediation efforts to be appropriate: They've replaced the refrigerator's seals and purchasd a $14,000 dehumidifier to drop the humidity level from 58% to 25%, in line with the National Institute of Standards and Technology. (Prior to this incident, Texas' Department of Public Safety did not maintain an ideal humidity level.) The department had also begun wiping the kit exteriors with a 10% bleach solution, under the guidance of Jody Koehler, section manager at the new DPS Capital Area Regional Lab, but has since stopped after members of the Forensic Science Commission expressed concern about the solution's effect on the kits. "Now that we've been brought up to speed," Cox said, "we don't think this is going to turn into a significant problem."

APD's reluctance to disclose details about the mold was a red flag for some stakeholders. "It's concerning that APD knew about this for so long," said Selena Alvarenga, president of the Austin Criminal Defense Law­yers Assoc-iation. Under Brady v. Mary­land, the state is obligated to hand over any evidence that could exonerate a defendant; Alvarenga said defense attorneys are "entitled to know" about issues like this when they arise. Lynn Garcia, who sits on the FSC, recommended departmental training on the law, and that APD work with the D.A. to "develop a disclosure policy."

It remains unclear whether any mold has penetrated the kits in APD's storage unit, most of which are cases from the back backlog (dating as far back as the Nineties). APD hasn't yet opened the kits to see if any mold has grown inside. According to APD Chief Brian Manley, Signature has confirmed that "no issues were observed" while processing the moldy piece of evidence (which was able to produce a DNA profile). He emphasized during a press conference shortly after the Statesman story hit that "well over 1,000" kits have now been processed from the refrigerator holding the moldy evidence, with no other reported issues to date.

Should mold be found inside any kit, the evidence could be unsalvageable. Garcia told the Chronicle: "Mold essentially digests or fragments the DNA into small pieces, making DNA typing more and more difficult, if not impossible."

Cally Moore, a recent biochemistry research assistant at Texas State, described DNA as "very delicate. There's only so much of it in one tube." Mold, on the other hand, is "opportunistic. The moment it gets in contact with DNA it just chews it up and rips it apart. The smaller the DNA gets, the harder it is to put it back together." Which is exactly what's required to create a complete and reliable profile. Despite those concerns, DPS press secretary Tom Vinger advised it's "premature to speculate on potential effects on evidence at this time."

Alvarenga said on June 30 that APD was still in the process of identifying how many of the moldy kits belong to active cases. A state law passed by former Sen. Wendy Dav­is in 2011 requires that all rape kits be sent to an accredited lab for testing within 30 days of their creation (and that all kits be tested, even if a survivor drops charges or the perpetrator takes a plea deal). Alvarenga expects to get an update today, July 6, at Commissioners Court, where APD has been asked to speak more in-depth about the issue.

Though it's possible that most back-backlogged cases are now closed, Aja Gair, a senior director at domestic violence advocacy nonprofit SAFE, noted that each kit represents a specific survivor. "How evidence is handled matters deeply to many of the survivors, but also to anyone making a decision about whether or not to get a forensic exam following a sexual assault," she said. The mold issue further confirms the need for a more supportive and proactive justice system when it comes to prosecuting rape cases. Had it worked in the survivor's favor, 30-year-old untested rape kits wouldn't exist, let alone be growing mold in an evidence warehouse.