SADO’s DNA Project Obtains New Trial for Client Incarcerated for Fourteen Years

Michigan made national news in 2009 when approximately 11,000 sexual assault kits (SAKs) collected between the late-1980s through 2009 were found in the overflow property room warehouse of the Detroit Police Department.  An initial audit of these SAKs suggested the very large majority of the sexual assault kits were never submitted to a forensic laboratory for DNA testing. In response to this shocking discovery, a group comprised of prosecutors, police, and victim’s advocate organizations convened.  Naturally, this group was focused on solving the cold cases and seeking DNA testing of the untested kits in hopes of generating new sexual assault prosecutions.

In order to ensure that the untested SAKs were not responsible for a wrongful conviction in a previously adjudicated case, the State Appellate Defender Office (SADO) sought and received a federal grant under the National Institute of Justice’s Post-Conviction DNA Testing Assistance Program in 2012, and SADO’s DNA Project was formed. Subsequently, SADO was awarded the U.S. Department of Justice’s Post-Conviction Testing of DNA Evidence to Exonerate the Innocent grant to continue the project.

To date, SADO’s DNA Project has identified a total of 933 previously adjudicated cases and has conducted initial screening and investigation for those cases. SADO and the Wayne County Prosecutor’s Office continue to work together to identify previously adjudicated cases linked to untested SAKs. The SADO DNA Project attorney conducts investigations and client interviews before determining if testing will take place on the untested SAK. If it is decided that DNA testing will take place, the corresponding SAK is located and shipped to one of the private forensic laboratories that have contracted with Wayne

County and the Michigan State Police to aid in the DNA testing of the untested kits (i.e. Bode Cellmark, Sorenson). Once the SAK is shipped to the private forensic laboratory, the DNA Project Attorney works closely with the lab’s DNA analysts to devise a DNA testing plan most likely to yield a conclusive DNA testing result. Generally, when it appears the quantity and quality of the biological evidence contained in the SAK is sufficient, PCR-STR DNA testing is favored.  PCR-STR DNA testing is favored because every individual (except identical twins) has a unique STR DNA profile. However, when it appears that the evidence may be degraded, only present in low quantities, or when “masking” is a significant concern, Y-STR DNA testing is employed as long as the facts of the case are compatible with employing this exclusionary DNA testing. For instance, if the fact suggest that the true perpetrator of the sexual assault could be either the convicted client or his biological brother, Y-STR DNA testing would not be employed, regardless of the quantity and quality of DNA contained in the SAK. Under that scenario, Y-STR DNA testing would not be beneficial because males share the exact same Y-STR DNA profile as all of the men in their paternal line.

Finally, when DNA testing results are achieved that exclude the client as the source of the biological evidence contained the in SAK, the DNA Project attorney advocates for clients through negotiations with prosecutors. If negotiations are unsuccessful and further case litigation is required, the DNA Project Attorney elicits additional resources by referring the case to a SADO staff attorney.

Thus far, SADO’s DNA Project has obtained post-conviction DNA testing in approximately a dozen cases. Unfortunately, the majority of the testing results in these cases have been inconclusive. Since all biological evidence degrades over time, and most of these SAKs were collected at least a decade ago, one cannot help but wonder if these SAKs were tested at the time of collection, whether a conclusive result could have been achieved.

The DNA Project’s Recent Success

Fortunately, in one recent case, SADO’s DNA Project obtained testing results that excluded a client as a possible source of the biological evidence in the SAK.

Post-conviction DNA testing excluded one of SADO’s clients as the source of the epithelial and sperm cells contained in the SAK associated with his conviction. Interestingly, unlike the very large majority of the SAKs discovered in Detroit, at the time of trial the SAK in this case was submitted to the Detroit Crime Lab, and some of the SAK evidence was subjected to PCR-STR DNA testing.  No male DNA profile was obtained from the evidence items that were tested because the female DNA “masked” the male DNA; however, the piece of evidence that serological screening suggested contained the most male DNA was not tested at that time. At trial, the DNA analyst testified that the SAK was in fact positive for sperm and semen, but there was not enough biological material present to determine whose sperm and semen it was. Armed with this information, and coupled with additional testimony that the defendant was the only person to have sexual contact with the complainant during the relevant time frame, the prosecution inferred that the presence of the sperm and semen in the sexual assault kit corroborated the complainant’s accusation of sexual assault. Over 14 years later, post-conviction DNA testing excluded the defendant as the source of the male DNA contained in the complainant’s sexual assault kit.

During post-conviction DNA testing in this case, SADO’s DNA Project Attorney, Amanda Tringl, was instrumental in obtaining conclusive results. Amanda identified an oversight at the private laboratory that would have resulted in employing a DNA testing plan that would have consumed all of the remaining evidence and likely produced an inconclusive result due to “masking.”  The biological evidence in the SAK was measured, or quanted, and it was determined that the rectal smear was the only piece of evidence in the SAK positive for male DNA. More specifically, the quant suggested rectal smear only contained .0028 ng/uL of total human DNA and .0019 ng/uL of male DNA. The forensic laboratory’s DNA analysts suggested using PCR-STR DNA testing on this sample first. However, Amanda recognized that there was only a very small amount of biological material present, and it would be completely consumed in the first round of testing. Amanda was also aware of the “masking” issue often presented in DNA testing items of evidence contained in sexual assault kits. Amanda questioned the DNA analyst’s proposed testing plan, expressed her concerns about using STR testing when there was such a small amount of total biological material present in the sample known to be comprised of both female and male DNA, and suggested using Y-STR DNA testing instead. The DNA analysts agreed, and Y-STR DNA testing was employed. Ultimately, due to the small amount of male DNA present in the sample, only a partial Y-STR profile was achieved; however, alleles were detected at enough loci to exclude her client as the source of the male DNA on the rectal swab. Consumption of this evidence sample to employ STR testing would have been detrimental to this case, as every piece of evidence contained in the SAK was eventually subjected to DNA testing, and the rectal swab was the only piece of evidence to yield any useable data.

The exclusionary results in this case were promptly presented to the Wayne County Prosecutor’s Office, and negotiations ensued.  SADO Assistant Defender, Randy Davidson, was brought in as co-counsel in preparation for litigation.   Due to the complexity of the facts presented, negotiations for a resolution took a couple of months. Ultimately, in May 2016, a stipulation and order was entered to set aside the conviction and sentence of the client, and he was granted a new trial.

This success was a long time in the making and a group effort, which included assistance from SADO Assistant Defenders Patricia Selby and Randy Davidson.

SADO’s DNA Project has reviewed hundreds of cases thus far, but there are still hundreds awaiting investigation and review. Time and grant funding is limited, and while the DNA Project strives to review cases in a timely and efficient matter, it is crucial that these matters are investigated thoroughly. If you have represented a client convicted of Criminal Sexual Conduct or another crime involving a sexual component, which was alleged to have occurred in Detroit between the late 1980s-2009, and you believe he/she may be innocent, please contact that client and urge them to inquire about the referral and status of his/her case to the DNA Project.

by:  Amanda Tringl
DNA Project Attorney
Special Assistant Defender
State Appellate Defender Office