Originally Published: January 1, 2010 10 p.m.
In many criminal cases, especially violent crimes such as murder or rape, forensic DNA can be the difference between catching a criminal, convicting him or freeing an innocent person.
For Steven DeMocker, 55, a Prescott man who is facing the death penalty in the brutal, bludgeoning death of his ex-wife, Carol Kennedy, a bit of unknown DNA beneath at least one of her fingernails may make a huge difference in whether he is convicted or exonerated at his upcoming trial.
A detective told the grand jury that the fingernail clippings could have been contaminated, according to court records, but his lawyers believe the DNA shows another person killed Kennedy.
While prosecutors contend that DeMocker beat the victim with a golf club at her Williamson Valley home on July 2, 2008, DeMocker insists that he is innocent. His defense lawyers hold out the hope that the DNA from the unknown man will be identified and DeMocker exonerated. A second unknown DNA sample was found on unscrewed light bulbs in Kennedy's laundry room, according to court records.
John Sears, DeMocker's defense lawyer, said the failure to identify the DNA from under Kennedy's fingernail hurts the defense. Although the state claims to have compared the sample with those on file in the state and national DNA databases, those are only as good as the profiles on file, he said.
"If there is a backlog of statewide and national offenders (to be tested), then running it against that database in incomplete," Sears said. In other words, if there are people in prison whose DNA samples have not been tested, there is no way to know whether they are a match with DeMocker.
While Arizona doesn't face a huge backlog for forensic DNA testing of recent crimes that are being actively investigated, about 20,000 samples of offenders, both arrestees and convicts, are currently pending, according to Vince Figarelli, the assistant superintendent of the DPS Crime Laboratory System.
The DPS crime laboratories receive about 250 DNA requests per month statewide, Figarelli said. At the end of December, there were 120 unassigned violent crime-related DNA requests more than 30 days old statewide. Some of those may be on hold because the scientists are awaiting more information or evidence submissions from the officer requesting the test, he said.
"We're in pretty good shape," Figarelli said about violent crime DNA. The four DPS laboratories use a sort of triage system to prioritize DNA tests with samples from sex offenders and other violent criminals going to the head of the line. The DPS operates regional labs in Phoenix, Tucson, Flagstaff and Lake Havasu City. In addition, Phoenix, Tucson, Mesa and Scottsdale police departments have their own labs. There are also private labs certified to run forensic DNA tests.
The labs use a two-step process, first determining if any biological materials are on a sample, then testing to determine a DNA profile. The process can take two to four weeks.
Sometimes, if public safety is at issue, the scientists work around the clock to get a sample processed. Figarelli cited the Chandler rapist case where the DPS lab was able to match DNA found at three of the attacks to an illegal immigrant in 2008.
"There are circumstances where all of our labs do this, if there is a person like a serial rapist who is a threat to the community, we can develop profiles in 24 to 48 hours," Figarelli said. "Certain cases get priority.
Anything that's an imminent danger to the public, we drop everything and folks around the state will work overtime to develop a profile."
They also ruled out more than 300 suspects in that Chandler case, he said.
Meanwhile, The Associated Press found tens of thousands of DNA samples missing from state databanks around the country in a 2009 audit. Those samples were lost or never taken.
Lisa Hurst, an expert in DNA convictions for Gordon Thomas Honeywell, a public safety lobbying group, said lapses in DNA profiling could result in tragedy as in a recent Wisconsin case in which a serial killer was released from prison after he had another inmate pose as him for a DNA test. The man was not connected to the crimes until this fall after he allegedly killed a seventh victim, police said.
DNA testing is "important because you're putting lives at risk," Hurst said. "If you don't, people coming into the custody of law enforcement and being released without ever having their identity checked put the public safety at risk. You not only lose an opportunity to solve old crimes but put the public at risk because sex offenders, in particular, tend to be repeat offenders."
Over the years, the DPS labs, which have an annual budget of $14 million, have used federal grants for purchasing equipment and for overtime. In 2009, DPS received a $1.6 million grant from the federal DNA Initiative Convicted Offender Backlog Reduction Program.
To support federal grant requests, the lab in Phoenix listed an anticipated backlog as of Sept. 30 of 3,675 cases, Mesa listed 100, Scottsdale, 45, and 339 in Tucson, said John A. Blackburn Jr., the executive director of the Arizona Criminal Justice Commission.
But all of the labs face a lack of money and personnel because of state government budget woes, Blackburn said. While the labs are important, they can't compete with "crime-fighting boots on the street," Blackburn said. "If it's that or somebody answering a call, with the budget being what it is, they have to make some hard calls."
Figarelli considers a current investigative case to be in backlog if it's older than 30 days or more than 60 days old for a complex case.
"The violent crimes we're pretty much current with," he said.
Property crimes have a lower priority.
"Ten years ago, nobody would have thought to submit a property crime for DNA testing," Figarelli said. "Our position is these are useful cases for DNA because there is a typical progression for criminals to commit minor crimes, then do more major crimes. We want to take them off the street before they escalate to more violent crimes." But he conceded those are a lower priority than violent crimes.
"We don't have the capacity to work all the property crimes that are submitted," Figarelli said.
The offender samples waiting to be analyzed, either by the DPS labs or sent to private laboratories, are also are screened as to importance, with those from rapists and violent criminals tested first, he said.
"If it's somebody who is convicted on a drug charge and is in prison, that sample is going to sit for months," said Figarelli.
Many states have huge backlogs of offender DNA profiles waiting to be processed in recent years since laws requiring defendants to provide DNA samples took effect. But Arizona is in good shape because it was one of the first states to begin DNA testing due to a pilot project with the FBI in 1992, Figarelli said.
Nearly 180,000 DNA profiles are stored in a state database in Phoenix. In addition, law enforcement has the ability to link to the federal Combined DNA Indexing System (CODIS).