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How does Utah use highly touted rapid DNA testing now under scrutiny in Texas?

By Dennis Romboy | Updated - Jun. 21, 2019 at 6:04 p.m. | Posted - Jun. 21, 2019 at 1:03 p.m.

SALT LAKE CITY — Police recently used rapid DNA analysis to identify the remains of a missing Ogden man, a technology the Utah attorney general has highly touted but that has now come under scrutiny for use in some criminal cases.

In March, hikers at the Ogden Nature Center reported bones they had found on the mountainside. The bones were determined to belong to a human adult.

Rapid DNA analysis of samples obtained from the bone confirmed the identity as 29-year-old Mark Myres, who had been missing since May 4, 2018, according to the Utah Attorney General's Office. The cause of death is unknown.

"The Weber County Sheriff’s Department and the A.G.’s office are pleased that the use of the rapid DNA technology is able to provide answers to Mr. Myres’ family,” special agent Nate Mutter said in a press release Friday.

The attorney general’s office started making rapid DNA testing available to federal, state and local law enforcement in 2018. About the size of a printer, it allows investigators to analyze evidence at the crime scene and provide results within a couple of hours, significantly shorter than the typical turnaround time for DNA analysis.

The technology has helped solve rape cases in Kentucky, identified California wildfire victims and verified family connections of migrants at the U.S.-Mexico border.

The Utah press release came a day after the Associated Press reported that a state board in Texas has asked a growing government provider of the DNA equipment used in those high-profile cases to stop work amid concerns of potentially jeopardized criminal cases.

"Prosecutors are saying, 'You're screwing up our cases,'" said Lynn Garcia, general counsel of the Texas Forensic Science Commission.

On Monday, the governor-appointed board sent a letter asking Longmont, Colorado-based ANDE to "cease any project in Texas involving the use of its rapid DNA technology" unless it goes through an accredited lab familiar with handling criminal evidence.

The commission says ANDE embarked on projects with police and a hospital in Houston without input from prosecutors, leaving them in the dark about evidence they're required to disclose to criminal suspects. That sent prosecutors scrambling to comply with a 2013 Texas law named after a man who wrongfully spent 25 years in prison after significant evidence in his case was withheld, according to the Associated Press.

ANDE spokeswoman Annette Mattern disputed the accusations, saying law enforcement agencies bear the responsibility for evidence handling. She said no issues have been raised regarding ANDE's equipment.

Utah Attorney General Sean Reyes bought two ANDE machines and raves about the technology on his website in a video that includes about 90 seconds of ANDE promotional footage.

Polices agencies have used rapid DNA in at least 100 cases statewide, including murder, sexual assault, robbery, burglary and gun crimes. Investigators recently used it in the kidnapping and killing of 5-year-old Lizzy Shelley in Logan.

"We did the initial DNA work that led to the aggravated murder charges. The recovery (of Lizzy's body) was quicker because of those charges," Mutter said.

But Utah officials say they'll back off using rapid DNA machines for rape investigations, citing a higher degree of technical analysis required. One case raised concerns about swabs taken from a victim, the AP reported.

"That requires a bit more technical expertise. We have shied away from doing that to this point after that first one because we got a chance to see what it took, and we haven't looked at doing that but that doesn't mean we won't do that in the future," Mutter said.

Technical assistance was needed from ANDE to help analyze the sample in that rape case, Mutter told the AP.

He said it was "very possible" that the Utah law enforcement agency that obtained the swab, which he would not disclose, did not get consent from the victim for a rapid DNA analysis.

"I would just find it hard to believe that they wouldn't consent to extra swabs if that meant their case got adjudicated faster, and their rape suspect got held accountable faster," he said.

Mutter said he understands the scrutiny being applied to the technology.

"We have to be careful with it and responsible with it. We don't want to go around testing people just because we can," he said, adding that investigators typically only look at "known" suspects.

Former Republican Utah Sen. Orrin Hatch successfully ran legislation in 2017 to create a system for law enforcement to use rapid DNA technology to help reduce evidence backlogs. It allows samples collected in the field to be connected to the FBI’s Combined DNA Index System, or CODIS, a national database that houses DNA profiles from federal, state and local forensic laboratories.

Under the previous law, police agencies could only use results from accredited labs, rather than rapid DNA analysis, to search for matches in the FBI database.

Hatch said the technology would speed up the process to identify perpetrators or exonerate innocent people.

The Utah Association of Criminal Defense Lawyers at the time raised concerns about the reliability of a DNA field test and whether it could violate people's rights.

In Texas, the commission said ANDE's arrival in Houston has jeopardized the integrity of ongoing criminal cases, although the board did not cite any that had been derailed because of the company, according to the AP. A criminal suspect who learns of undisclosed evidence could use that as grounds for dismissal or appeal. Another concern is that because the machines consume evidence, that same sample can't be retested later.

Peter Stout, CEO of the Houston Forensic Science Center, also said at least one swab taken from a sexual assault victim was lost in the mail, raising concerns about how carefully evidence was handled. Mattern said she had no information about a lost sample, but the commission noted other concerns related to the integrity of samples "sent out of state."

Stout rejected ANDE's assertion that it had no responsibility in how evidence was handled.

"It's a little disingenuous on ANDE's part because they are so aggressive in marketing this to the officers that this is an investigative tool. And they certainly don't take the opportunity to explain and point out that you guys need to make sure you're giving everybody the information," Stout told AP.

In Arizona, Mattern defended the company asking for "performance parameters" in the proposed DNA database bill that excluded the company's chief rival, Thermo Fischer Scientific, saying it wouldn't have prevented competitors from ultimately meeting the same requirements. Mattern said ANDE later asked to kill the legislation.

During a February hearing, Mattern and other ANDE representatives testified in support of the proposal. Some senators questioned whether there were other advocates besides the company.

"Limiting that to just one company, or two companies, that can make a lot of money on this makes me uncomfortable," Arizona Democratic Sen. Jamescita Peshlakai said at the hearing.

Dennis Romboy

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