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| Crime |

Broward Judge Isn't Letting Defendant Challenge Bad DNA Evidence

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Late last year, as he served a life sentence in prison, Ernesto Behrens received a notice informing him of problems discovered at the crime lab that had examined DNA in his case. Behrens, who was convicted of armed sexual battery in Broward County in 2000, immediately filed a flurry of motions asking for the evidence to be reviewed.

But Judge Andrew Siegel quickly denied the motion without even granting a hearing.

Months after hundreds of cases were thrown into question over improper DNA interpretation at the Broward Sheriff's Office Crime Laboratory, Behrens' case has become a point of contention between prosecutors and public defenders.

Prosecutors say that his case wasn't affected by the DNA problem and that the notice might have been sent in error. The public defender's office, however, argues the judge's ruling shows that defendants aren't getting a fair shake at challenging the potentially tainted DNA evidence — and that a much more thorough review is needed.

"The State Attorney's Office should also be looking at justice, and if there's one person sitting in jail or one person that was wrongly convicted based on faulty DNA, they should also be looking to right that conviction," Assistant Public Defender Gordon Weekes says.

The lab issue, which New Times detailed in a feature story last month, surfaced in 2015. Forensic consultant Tiffany Roy reviewed evidence from a knife handle and realized it was ruled conclusive when it should have been inconclusive. Roy complained to the agency that accredits the lab, the American Society of Crime Lab Directors (ASCLD), which investigated and agreed with her.

At issue was DNA evidence based on complex samples, in which the genetic material comes from multiple people. Complex samples require a complicated analysis to determine which portion of DNA belongs to which person. When the DNA is minuscule or degraded, pieces can be missing or seem to exist where they do not.

Because so much of that evidence is up to interpretation, the science can become more subjective and different experts often arrive at varying conclusions. That subjectivity led ASCLD in 2010 to issue new thresholds for interpreting DNA and calculating the odds that a particular person left DNA at a crime scene. Crime labs across the nation are grappling with the changes: Some are retesting thousands of cases to make sure old evidence was sound.

At the Broward crime lab, complex DNA processing was stopped after ASCLD issued its findings last year. The State Attorney's Office then began sending notices about the issue to 2,000 defendants in cases that were resolved since 1999 where any type of DNA was involved.

"We don't have the resources to go through every case," Chief Assistant State Attorney Jeff Marcus says. "And I think the public defender's office would not accept our opinion if we said, 'No, everything's fine; don't worry about it.' So our obligation is to tell them what the problem was."

After the State Attorney's Office notified defendants about the issue, the public defender's office followed up with fill-in-the-blank motions that can be used to challenge convictions. About 20 defendants have begun that process. But defendants are not entitled to representation for postconviction relief, so unless they can afford an attorney, they have to go through it alone.

Weekes argues that's an unfair burden when both the legal system and the science behind DNA are so complicated. He's highly critical of the way the State Attorney's Office has handled the crime lab problems, saying it does little to ensure the evidence was correct in cases that might have been affected. Even if a defendant files his own motion to double-check the evidence, a judge can still summarily deny it.

"They know that there are needles, and they put ten stacks of haystacks on top of those needles and said, 'It's up to you guys that potentially are entitled to relief to figure out where your needle lies,'" Weekes says of prosecutors.

Marcus defends the actions taken by the State Attorney's Office, pointing out that defendants can appeal judges' decisions — which is what Behrens ended up doing. But in that case, Marcus says, the DNA was not complex and predates crime lab issues. Behrens, who was also convicted of armed battery in 1992, has filed numerous appeals over his years behind bars, none of which have been granted.

Weekes says the public defender's office plans to call for a committee of DNA experts and attorneys to look into the closed cases, as was done in other jurisdictions that faced similar issues. On that point, his office and the State Attorney's Office appear to agree: Marcus says prosecutors would be in favor of increased funding for some type of organization to conduct a review.

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