Interim Update: September 2015


          Our calendar says it's officially autumn. Somebody please notify Mother Nature, she's apparently asleep at the switch.

Annual Update post-script

            If you were one of the 880+ attendees at this year’s Annual Criminal and Civil Law Update in Corpus Christi last week, we hope you returned to work with new knowledge, new friendships, and a new appreciation for a full night’s rest (there’s a reason why we only do it once a year!). With that in mind, we’d like your feedback on the speaker sessions you attended, so if you can spare a moment or two, please go to and let us know who or what you liked or didn’t like. This feedback will help us put on an even better seminar next year in Galveston (for which local hotels are now taking reservations, so don’t get caught napping or you’ll be sleeping on the beach come next September!)


Update on DNA mixture snafu

            In last month’s interim update we alerted you to a budding DNA-mixture problem. To recap:  DPS and other crime labs have been calculating the probability of inclusion in a DNA sample using something called the “analytical threshold,” but in August, DPS revised its protocols and began using something called the “stochastic threshold.” Calculations under the new protocol could yield very different results (in comparison to the old protocol) which could be beneficial to some defendants; in fact, the calculations could go from inclusive to inconclusive in some cases. As a result, there was widespread agreement among prosecutors at the Annual Update that someone convicted using inclusion statistics derived under the old analysis maybe entitled to a recalculation and perhaps a review of that conviction.

            Based on this information, various prosecutors are taking the following actions:

          (1)  Verifying that the latest protocols have been used in pending cases with DNA-mixture evidence (and if not, seeking re-analysis before trial);

          (2)  Identifying past cases in which a defendant was convicted at least in part based in DNA-mixture evidence analyzed by DPS (if you have not gotten the list, ask your local DPS lab for a list that includes the suspect, victim, DPS lab number, and law enforcement incident number);

          (3)  Notifying the local defense bar and judges of this issue (if you are making this notification by letter, please send a sample to [email protected] so we can post it on our Brady Resources webpage for others to see and use);

          (4)  Working through TDCAA with the Forensic Science Commission, the Court of Criminal Appeals’ Conviction Integrity Unit, TDCJ, the State Bar, and others on methods to notify defense attorneys, judges, and already-convicted defendants of this potential issue; and

          (5)  Working through TDCAA to determine what additional laboratory and legal resources will be needed at the state and local levels as a result of these changes, with an eye toward seeking that help in the near future.


Note also that while DPS changed its protocol on August 10, 2015, we don’t yet know when other labs changed protocols, so prosecutors who have used non-DPS labs should consider checking with those labs to obtain lists of cases involving the old protocol.

            Many people are working on this issue and we will keep you informed of significant developments, but if you have immediate questions, call Rob at 512/474-2436 or email him at Robert.K[email protected].  


Upcoming board elections

            Elections for the TDCAA Board of Directors will be held in conjunction with the Elected Prosecutor Conference at the La Cantera Hill Country Resort (formerly the Westin) in San Antonio. Here are the spots that are coming open on January 1, 2016:

  • President-Elect
  • Secretary/Treasurer
  • District Attorney Representative
  • Assistant Prosecutor Representative
  • Directors for Regions 3, 5, 6, and 8 (regional map available here)

If you are interested in more information about serving your profession as a member of our board of directors, contact Rob (512/474-2436 or [email protected]) or any of the current Board members.


Brady policy relating to peace officers?

            If you have established a Brady policy relating to past police officer behavior, we would love to have a copy of it to share with others on our Brady Resources webpage. Many of your fellow prosecutors want to compare notes on this subject, which we will discuss further at the Elected Conference in San Antonio in December. If you’d like to share your work with others, please send it to [email protected]. Thanks!


Pen pack problems

            There were some complaints about the tardiness and poor quality of TDCJ penitentiary packets during the Rural Prosecutor Forum at the Annual Update. If you have a particularly egregious example of either problem, please contact Shannon with the details (and examples) so that he can discuss the issue further with our friends in Huntsville.


Quotes of the week 

“He was guilty as hell, and we let him walk right out of there.”
            —Bill Wooden, presiding juror in the Bastrop murder trial of an officer-involved shooting that resulted in a hung jury (8-4).


“It’s tough because Texas over the last decade has been as cheap as it can be.”
            —Rep. Garnet Coleman (D-Houston), chairman of the House County Affairs Committee, explaining why those with mental health issues are increasingly causing problems for Texas jails.


“I wouldn’t be surprised.”
            —Justice Antonin Scalia, when asked if he thought his peers on the Supreme Court would eventually abolish the death penalty by judicial fiat.


“If the first time you’re explaining your opinion is at a committee meeting, you’re way behind the curve.”
            —Steven Polunsky, former legislative committee clerk, explaining why public comment at committee hearings is only part of the process of passing legislation.


“One of the problems was DNA was called the gold standard. Big mistake.”
            —Bruce Budowle, director of the UT Health Science Center’s Institute of Applied Genetics, speaking before the Forensic Science Commission on the new interpretations of DNA mixture results.


“Any sufficiently advanced technology is indistinguishable from magic.”
            —Famous quote by Arthur C. Clarke, futurist and author of 2001: A Space Odyssey.


“The first thing we do, let’s kill all the scientists.”
            —TDCAA Executive Director Rob “Shakespeare” Kepple, after sitting through 45 minutes of the forensic science webinar explaining that tens of thousands of DNA mixture tests dating back to 1999 could need re-analysis.