Austin’s Unreliable Crime Lab Could Lead to Another Wrongful Execution

At around 3 a.m. on May 31, 2009, Jacqueline Hernandez left her 17-year-old daughter Bianca Maldonado and Bianca’s infant son Cesar to go to work delivering newspapers. Hernandez returned to the Austin, Texas, home roughly four hours later and found it in disarray. Couch cushions were strewn everywhere. The walls were covered in blood. Her daughter was lying facedown on the floor, mostly nude, and covered in lacerations. Cesar survived his injuries; emergency medical personnel pronounced Bianca dead at the scene.

Three days later, Austin police arrested Bianca’s neighbor Areli Escobar, now 41, on charges of sexual assault and capital murder. Escobar’s then-girlfriend told police that she’d called him that night, and when the line connected, she heard the sounds of two people having sex. (In a testimony, years later, she altered her story and claimed she’d heard “a woman screaming and screaming and screaming and screaming and just screaming.”) Prosecutors alleged that Escobar returned home covered in blood and lacerations, told his sister that he’d had sex with a woman that night, and that a partial fingerprint, cell phone tower data, and numerous pieces of DNA evidence—including blood found on his shoes and shirt—tied Escobar to the scene of the crime. He was convicted in 2011 and sentenced to death.

But the case against Escobar was neither as clear nor as settled as it seemed. On Dec. 31, 2020, after nearly a decade of appeals, Judge David Wahlberg issued a recommendation to the Texas Court of Criminal Appeals that Escobar be granted a new trial.

“Having found that the relevant scientific community, law enforcement, the judiciary and the governmental entities responsible for funding and oversight of the APD [Austin Police Department] DNA lab reached the conclusion that the testing done by the lab was unreliable, the Court concludes it would be shocking to the conscience to uphold the conviction of Mr. Escobar,” Wahlberg wrote. “Mr. Escobar’s trial was fundamentally unfair.”

Escobar’s attorneys told The Appeal they can now only wait to see if the court grants Escobar another chance to prove his innocence. Spokespeople for the Travis County district attorney’s office did not respond to a request for comment.

“If Mr. Escobar’s conviction and death sentence are upheld, it would raise the specter of whether any lessons have been learned since the tragic execution of Cameron Todd Willingham, an innocent man killed by the state of Texas based on junk science,” Carlotta Lepingwell, one of Escobar’s attorneys, told The Appeal.

The grounds for Judge Wahlberg’s decision fit into two categories of misconduct: scientific and legal.

The case’s DNA evidence—previously considered the most rock-solid proof that Escobar was the assailant—has since fallen apart. Escobar’s trial is the latest in a long series of convictions from across the nation that have unraveled as criminologists admit that DNA evidence is not nearly as reliable as it was once made out to be. Unlike bite mark or blood spatter analysis, DNA analysis does involve verifiable science, but it is often misused by laboratory technicians, police, and prosecutors. Although DNA evidence is very useful for excluding suspects from having committed potential crimes, it is far less reliable when it comes to proving that a specific person committed a crime.

In June 2016, Austin Police Chief Art Acevedo temporarily shut the department’s crime lab down, a closure that had been a long time coming. For years, the lab had resisted updating its standards to the most recent scientific methods suggested by the Scientific Working Group on DNA Analysis Methods. Despite that, the agency’s accrediting bureau, the American Society of Crime Laboratory Directors, continued to give the lab passing grades.

Outside investigators began looking into the lab in 2016, after DNA analyst and serologist Diana Morales provided inconsistent testimony in the case of 26-year-old William McGee, who’d been charged with sexual assault. Auditors with the Texas Forensic Science Commission had also alleged that Morales had used faulty math to reach conclusions about DNA samples in the case. This hadn’t been Morales’s first scandal. Earlier that year, a freezer in the crime lab had malfunctioned, and compromised numerous DNA samples. But Morales failed to alert prosecutors, police, defense attorneys, or judges of the malfunction.

After a scathing state audit found that Austin’s crime lab was using scientifically unsound techniques in virtually all of its cases, Acevedo closed the lab in December 2016. (The lab reopened under state supervision.) That same month, the city of Austin said it had lost confidence in most of the staffers who’d been employed there, and that it was not cost-effective to attempt to retrain them. One of those staffers was Morales. She no longer works at the lab.

The court finds the use of that evidence violated Escobar’s right to due process.

David Wahlberg Former Judge, 167th Criminal District Court

Years before these audits and closures, Morales’s testimony was a critical part of the Austin DA’s case against Escobar.

“The court finds that newly available scientific evidence demonstrates that the DNA evidence relied upon for this conviction was scientifically unreliable,” Judge Wahlberg wrote last month. “The court finds the use of that evidence violated Escobar’s right to due process.”

Furthermore, Wahlberg stated in a September hearing that he suspected Travis County DA’s office  employees may have worked to cover up Morales’s failures. Since Escobar’s 2011 conviction, his attorneys have filed multiple requests for information from the DA’s office—including requests regarding the DA office’s relationship with Morales. Escobar’s attorneys say that the DA’s office said, in 2017, that it would no longer work with Morales due to her poor record. However, in 2018, the office, which was then under Margaret Moore, stated in court that it would work with Morales again in certain circumstances. Escobar’s attorneys then filed a series of discovery requests  to find out what prompted the change. In response, the Travis County DA’s office turned over a series of emails to Wahlberg. Upon reading them, the judge called a hearing in September 2020 and stated he was worried about the emails’ contents.

During the hearing, Wahlberg said the emails raised questions about whether former DA Moore’s office had changed its policy in order to avoid disclosing potentially damning evidence. Had the office not changed its policy, it would have been forced to turn over information to Escobar’s legal team that showed the crime lab analyst who testified in his case had been found to be unreliable. (Wahlberg did not turn that evidence over to Escobar’s attorneys because he suspected Moore’s office would appeal that decision and he did not want to further delay the case.) Both Wahlberg and Escobar’s lawyers say that the prosecutors’ decisions potentially violated the U.S. Supreme Court’s 1963 ruling in Brady v. Maryland, which requires that prosecutors disclose all “exculpatory evidence” that could possibly prove a defendant’s innocence.

“The emails I believe provide a basis for a reasonable suspicion—and I use that term reasonable suspicion advisably—for a reasonable suspicion that the District Attorney’s Office may have sought to change that policy with regard to that witness for the specific purpose of avoiding Brady disclosure,” Wahlberg said at the Sept. 30 hearing. “And I tell you I’m saying that not because I have found that to be the truth, not because I believe it beyond a reasonable doubt, but because I think those emails justify a suspicion that that happened.”

On Dec. 31, Wahlberg issued a written recommendation in which he assailed multiple aspects of the crime lab’s policies over the last decade, as well as specific issues with the DNA evidence in Escobar’s case. Multiple pieces of DNA evidence that the prosecution relied on at trial, Wahlberg wrote, would now be considered “inconclusive” using contemporary DNA analysis techniques. Without the questionable DNA, Wahlberg wrote, the rest of the prosecution’s evidence was not particularly strong.

Wahlberg wrote that the fingerprint found at the scene was inconclusive, a shoe print found at the scene was “a tread design shared by thousands of other shoes in the Austin area,” that cell tower data was not capable of determining Escobar’s exact location, and that the testimony of Escobar’s ex-girlfriend “changed dramatically” between interviews. Furthermore, Escobar says he was injured and bleeding because he was mugged twice the night of the murder—and Escobar’s sister’s boyfriend testified that he witnessed and broke up one of the fights.

“The Court finds that without the DNA evidence, the remaining evidence relied on by the State was circumstantial and weak and would not have supported a conviction for capital murder,” Wahlberg wrote. Under Texas state law, Wahlberg can only request that the Texas Court of Criminal Appeals grant Escobar a new trial. The decision is now in the appellate court’s hands.

“Mr. Escobar has maintained his innocence from the beginning,” Lepingwell, the defense attorney, told The Appeal. “Areli Escobar is a father, a son, a brother, and a recent grandfather. His life matters. And truth and reliable forensic evidence in the criminal justice system should matter, too.”