May 23, 2016 - DNA ISSUE

DNA ISSUE

JOINT MOTION TO EXTEND TIME MAY 23, 2016

May 23, 2016

JOINT MOTION TO EXTEND TIME I.

A Brief Procedural History.

Appellant, Henry Watkins Skinner, was convicted of capital

murder and sentenced to death in 1995; a conviction affirmed by this Court in 1997. See generally Skinner v. State, 956 S.W.2d 532 (Tex. Crim.

App. 1997). The present proceeding concerns whether DNA test results, obtained pursuant to Chapter 64 of the Texas Code of Criminal Procedure, are favorable to Appellant. See Skinner v. State, No. AP77,046, 2016 WL 899097, at *1 (Tex. Crim. App. Mar. 9, 2016). Before a decision on that matter could be had, however, this Court determined that further fact-finding and analysis by the trial court might be in order.

Id. at *8. Accordingly, the Court abated the appeal and remanded the case to the trial court to ensure timely recalculation of the DNA test results and to make any additional findings as necessary. Id.

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recalculations and possible supplemental findings were to be resolved within 90 days of the remand, or June 7, 2016. Id. II.

The Parties Respectfully Move for an Additional 180 Days.

Pursuant to Rule 10.5(b) of the Texas Rules of Appellate Procedure,

the parties move for an additional 180 days from June 7, 2016—the present deadline—to complete the further proceedings ordered by this 1

Court. If granted, the new deadline would be December 5, 2016. Neither party has requested an extension since the Court remanded this case.

The parties make this extension request jointly.

The facts underlying the need for an extension are as follows: Shortly after remand, on March 18, 2016, the Texas Department of Public Safety Crime Laboratory Service (DPS) implemented a new forensic software program to perform interpretive calculations for DNA test results—STRmix. 1 Training and certification of analysts for STRmix is ongoing and varies dependent on a number of factors. The Lubbock Laboratory began issuing reports utilizing STRmix calculation results on or about March 28, 2016.

The DPS analyst who conducted the present DNA testing has been trained and certified to use STRmix for Short Tandem Repeat (STR) Polymerase Chain Reaction (PCR) test results, which represent the bulk of the testing utilized here (approximately 95% of the test results). The analyst expects to have a report with the new calculations, utilizing Texas is at the forefront of addressing outdated DNA-test-result calculation methods—“‘Texas is really the only state that’s taking it seriously.’” Gabrielle Banks, Texas Leading Massive Review of Criminal Cases Based on Change in DNA Calculations, Houston Chronicle (Feb. 1, 2016 11:21 AM), http://www.houstonchronic le.com/news/houston-texas/houston/article/Texas-leading-massive-review-of-crimina l-cases-6796205.php (quoting “Sandra Guerra Thompson, a University of Houston criminal-law professor”).

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STRmix, from the STR-PCR results done within the 90-day period originally ordered by the Court.

However, five of the DNA tests utilized a MiniFiler amplification kit (about 5% of the test results), the results of which cannot yet be processed by DPS through STRmix. That will change, however, within six to nine months when training and certification for processing MiniFiler results via STRmix will take place. Thus, while the majority of the recalculations will be done within the Court’s initial deadline, it is presently impossible for DPS to complete all of the work within this timeframe. 2 Additional justification for more time is that the scope of testing in this case is massive. A typical homicide case for the Lubbock Laboratory

The parties recognize that the Court, in remanding the case, stated “that the recalculation [should be] performed in a timely manner” and noted that Chapter 64 permits DNA testing by laboratories other than DPS in certain situations. Skinner, 2016 WL 899097, at *3 & n.8 (citing Tex. Code Crim. Proc. art. 64.03(c)). However, DPS’s only contract with an outside laboratory is solely for sexual-assault kits (which would exclude the vast majority of evidence at issue here) and probabilistic genotyping software—like STRmix—is laboratory specific. In other words, data generated by a particular DPS laboratory cannot simply be provided to another laboratory for recalculation, i.e., the data is not apples-to-apples even if the outside laboratory uses the same brand of software. Rather, using an outside laboratory would require entirely new DNA testing and then software-based calculation, which could take substantially more time and, in some cases, be impossible where all biological material has been consumed by the current testing. At bottom, utilizing the Lubbock Laboratory is the most time-efficient method of recalculation practically available.

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consists of 10–15 samples. Appellant’s case has about 120–25 samples, or about a tenfold increase over the average case. Moreover, there are ten known samples in this case with which the DNA test results are being compared, whereas the typical Lubbock Laboratory homicide case has comparison with three known samples—a victim’s or victims’ and the suspect’s. In short, the work to be done is enormous and DPS is diligently going about it, though it needs more time to complete all of it.3 PRAYER Accordingly, the parties jointly request an additional 180 days to December 5, 2016, to complete all of the recalculations in this case and any additional fact finding, if necessary.

Respectfully submitted, FRANKLIN MCDONOUGH District Attorney 31st Judicial District EDWARD L. MARSHALL Chief, Criminal Appeals Division/ Assistant District Attorney KATHERINE D. HAYES Assistant Attorney General/ Assistant District Attorney While the parties request 180 days for this extension, which is the minimum amount of time for DPS to implement the MiniFiler vis-à-vis STRmix certification and training, both parties recognize that additional time may be needed to complete the recalculations.

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