EVIDENCE DESTROYED, INNOCENCE LOST: THE PRESERVATION OF BIOLOGICAL EVIDENCE UNDER INNOCENCE PROTECTION STATUTES

In 1997, Texas governor George W. Bush issued a pardon to Kevin Byrd, a man convicted of sexually assaulting a pregnant woman while her two-year old daughter lay asleep beside her.1 As part of the original criminal investigation, a medical examination was performed on the victim and bodily fluids from the rapist were collected for forensic analysis in a "rape kit." At the time of Mr. Byrd's trial in 1985, DNA technology was not yet available for forensic analysis of biological evidence.2 In 1997, however, a comparison of Mr. Byrd's DNA with the bodily fluid in the rape kit established that Mr. Byrd was not the rapist.3 After serving twelve years in prison, Mr. Byrd finally was exonerated because of the scientific advancements in DNA technology and the fact that, by "pure luck," the sample of biological material collected in the rape kit had been preserved at the Harris County Clerk's Office in Houston, Texas for over a decade.4

After the DNA tests excluded Kevin Byrd as the perpetrator, the prosecution and the police were convinced that Mr. Byrd was innocent.5 When Governor Bush issued the pardon, he predicted that Mr. Byrd's case would be the "first of many" in Texas to use the new DNA technology to re-examine old cases.6 The same week of Mr. Byrd's pardon, however, the evidence custodians at the Harris County Clerk's office began to systematically destroy old rape kits in its evidence storage facility.7 In one fell swoop, fifty rape kits were discarded,8 virtually guaranteeing that Kevin Byrd would not be the "first of many" in Harris County to benefit from DNA technology as was predicted by Governor Bush.