Unknown number of potentially prosecutable cases affected by destruction of DNA evidence in Aurora

Potential impact of lost evidence comes into focus

AURORA, Colo. - Before Aurora's police chief announced that his department had mistakenly destroyed DNA evidence pertaining to 48 cases, his office called the Executive Director of the Colorado Coalition Against Sex Assault.

"My first thought was, 'Oh no," said Erin Jemison, the coalition's executive director. "And, I've been waiting for this phone call. Not specifically from Aurora, obviously. But what has become very clear to me over the past few years of doing this work, is that law enforcement agencies really need to work on protocol around sex assault evidence."

DNA evidence from 48 sexual assaults which occurred in Aurora during 2009 was destroyed, including one piece of evidence which derailed the prosecution of a pending case. Aurora Police Chief Daniel Oates said he had informed the victim in that case personally.

"Obviously this is not a good day for our department," said Oates when he made the announcement Tuesday night.

Oates also told reporters he was concerned about a second specific case among the 48, an unsolved sexual assault that matched DNA from two other unresolved sexual assaults in Denver.

If the suspect were to ever be identified, Oates said, "It will be hard to make the Aurora case without the DNA."

Jemison says survivors of sexual assault statewide have reached out to her organization when DNA evidence in their case went missing.

If any good was to come from the publicized destruction of evidence by Aurora Police, Jemison says it would be, "That other agencies, and this agency in particular, do something before this happens in their jurisdiction, in their community. And take it on themselves to be proactive."

An unknown number of cases within District Attorney George Brauchler's jurisdiction could be impacted by the destroyed evidence.

The DA says he is hopeful the panel investigating the destruction of the evidence will find the cases impacted were either unsolveable or unprosecutable.

"But my fear is, there's probably a number of them out there where we may have been able to achieve justice for a victim, and now we can't," he said.

7NEWS reporter Amanda Kost asked District Attorney  Brauchler, "You can prosecute sex assault cases without DNA evidence?"

"Absolutely," Brauchler replied. "I mean, there was a time when we were prosecuting sex assaults before there was DNA. So I'm not completely discouraged by the fact that this evidence has been lost yet."

Brauchler's office has already begun the process of reaching out to those with cases that could be impacted by the destroyed evidence.

 "We'll be contacting individually in face-to-face meetings once we have a better idea of exactly what has been destroyed, and what that destruction means for their case," added Brauchler. "In fact, there's some victims that have indicated even earlier on, they don't want to prosecute, they don't want to be part of it. I still think we owe it to them to reach out to them and say, 'Listen, whether you've had a change of heart or not, here's the reality for your case."

Brauchler said the attorneys representing the 18th Judicial District are aware of possible complications they may encounter down the road. 

"When DNA evidence existed and we don't retain it for either re-testing by the defense or some sort of initial testing, under the statute, it creates a vehicle by which a would-be defendant down the road can say, 'Judge you have to fashion a remedy for me because the government took away my ability to prove my innocence by looking at this DNA evidence or re-testing their particular results," said Brauchler.

An injured officer assigned to light duty in the Property and Evidence Unit is apparently responsible for destroying the evidence from those 30 cases, the department said in a written press release.

Evidence from the 18 remaining cases had been approved for destruction by the detectives involved, but hadn't been cleared by a Property and Evidence Unit technician to ensure that destruction is permissible under the law.

"There was a window of about 6 months where this activity was taking place and it was a mistake," Oates explained.

As an immediate step, the Aurora Police Department has put a moratorium on the destruction of actual or potential DNA evidence from any cases.

Deputy Police Chief Terry Jones will chair a panel charged with analyzing what went wrong and producing a public report with recommendations by November 1. The other members of the panel will be Senior Assistant Attorney General Julie Selsberg, retired Colorado Springs Police Chief Richard Myers, Colorado State University Chief of Police Wendy Rich-Goldschmid and Chief Deputy District Attorney Ann Tomsic from the 18th Judicial District. The 17th Judicial District will also assign a member to the panel.

"This is entirely regrettable. It was also entirely avoidable. But having said that, I think the approach that we have started to take at the request of Chief Oates, is the only right approach there can possibly be to trying to minimize the damage from this and assessing, what can be done better in the future and how can we save some of these cases moving forward? I think we'll know a lot more as this task force gets underway," said Brauchler.

"There is clearly a failure here on the part of the police department. We deeply regret it. We need to get to the bottom of it, learn from it, have better systems in place and move on," said Oates.