Report Of The Alvin Sykes Cold Case DNA Task Force To The . - Kansas.gov

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OTHER COMMISSIONS, COMMITTEES, AND TASK FORCESReport of theAlvin Sykes Cold Case DNA Task Forceto the2022 Kansas LegislatureCO-CHAIRPERSONS: Senator Kellie Warren and Representative Fred PattonOTHER LEGISLATIVE MEMBERS: Senator David Haley and Representative John CarmichaelOTHER NON-LEGISLATIVE MEMBERS: Alice Craig, Audrey Cress, Darrin Devinney, JustinEdwards, Jeff Hahn, Brian Hill, Robert Jacobs (designee for Kirk Thompson), Robert Lee, ReidNelson, Jacquelyn Rokusek, and Cory SheedyCHARGEAs directed by KSA 2020 Supp. 21-6901 (and as amended by provisions of 2021 HB 2077,which updated the name and duration of the former Kansas Closed Case DNA Task Force), thistask force, in consultation with practitioners and experts, is to develop a plan to ensure uniformstatewide policies and procedures that address, at a minimum: Timely receipt of the data relating to hits to the combined DNA index system(CODIS) from the forensic laboratory; Directly connecting the data relating to the hits to the relevant case files; Proper policies and procedures to ensure all hits are accounted for and followedup on; Procedures to address how the key parties can conduct a reasonable and timelyinvestigation into the significance of the hits; and Sharing the hits in data from both solved and unsolved cases with other keyparties, including the relevant prosecutors’ offices, the original defense attorneyand the last known attorney of record, crime victims and surviving relatives, and alocal organization that litigates claims of innocence.December 2021

Alvin Sykes Cold Case DNA Task ForceFINAL REPORTConclusions and RecommendationsProtocol for Cold Case CODIS HitsEach law enforcement agency should develop a protocol for notifying the prosecuting agency of acriminal case of any corresponding Laboratory Information Management System (LIMS) reportwhen a cold case Combined DNA Index System (CODIS) hit occurs. The Task Force alsorecommends the Kansas County and District Attorneys Association (KCDAA) develop a “BestPractices for Prosecutors” regarding the protocol for cold case CODIS hits. The Legislatureshould continue to monitor the implementation of these protocols.Because the prosecuting agency has an ongoing ethical duty to disclose the LIMS report to thelast counsel of record for the defendant, the prosecuting agency should promptly determinewhether there is an immediate investigative reason not to turn the information over to defensecounsel.The criminal case investigation should be concluded within a reasonable time and, at theconclusion of the investigation by law enforcement, the LIMS report should be transmitted to thedefense counsel of record regardless of the investigative result. If defense counsel of record isunavailable, the district court should appoint counsel to review the CODIS hit.EducationThe Kansas Bureau of Investigation (KBI) currently provides training through the Kansas LawEnforcement Training Center to all law enforcement officers about the availability of the LIMSportal. It has become apparent that not all prosecutors may be aware of its availability. Byextension, defense counsel has also been unaware of its existence. The KBI has committed to providing repeat and ongoing training to prosecutors and lawenforcement across Kansas regarding the availability and use of the LIMS portal. The KBI should provide training on CODIS and LIMS through the State Board ofIndigents’ Defense Services and the Kansas Association of Criminal Defense Lawyers(KACDL). The KCDAA is encouraged to offer such training to its membership once every fouryears, at a minimum, coinciding with the election of new county and district attorneys. The KCDAA should also remind its members of the obligation to provide these reports aspart of the ongoing discovery process required by Brady v. Maryland, 373 US 83 (1963)and statute.With the knowledge of the existence of the LIMS portal, defense counsel will be better able tomake specific requests of prosecutors to check for the availability of updated reports related totheir clients’ cases.Kansas Legislative Research Department0-22021 Alvin Sykes Cold Case Task Force

Proposed Legislation: None. [Note: A minority of the Task Force members expressed a need toenact the above recommendations into law.]plan for uniform implementation of the protocolthroughout the state, including articulatedbenchmarks to facilitate and measure adoption,and directed that this report be posted on a publicwebsite maintained by the Kansas Bureau ofInvestigation (KBI) and presented to the Governor,the Speaker of the House of Representatives, andthe President of the Senate.BACKGROUNDBills enacted in 2019 and 2021 established andprovided direction to the Task Force.In 2019, enacted HB 2290, among otherthings, established the Kansas Closed Case TaskForce (Task Force) (codified at KSA 2019 Supp.21-6901). HB 2290 directed the Task Force to, inconsultation with practitioners and experts,develop a plan to ensure uniform statewidepolicies and procedures that address, at aminimum:HB 2290 specified the 15 voting members ofthe Task Force, as follows: The chairperson of the standing SenateCommittee on Judiciary; The ranking minority member of thestanding Senate Committee on Judiciary; Timely receipt of the data relating to hitsto the combined DNA index system(CODIS) from the forensic laboratory; Directly connecting the data relating tohits to the CODIS to the relevant case file; The chairperson of the standing HouseCommittee on Judiciary; Proper policies and procedures to ensureall hits are accounted for and followed upon; The ranking minority member of thestanding House Committee on Judiciary; Procedures to address how the key partiescan conduct a reasonable and timelyinvestigation into the significance of thehits; and The Governor or the Governor’s designee; The Attorney General or the AttorneyGeneral’s designee; The Director of the KBI or the Director’sdesignee; The state CODIS administrator asdesignated by the Director of the KBIForensic Science Laboratory; A sheriff as designated by the KansasSheriffs Association; A chief of police as designated by theKansas Association of Chiefs of Police; A prosecutor as designated by the KansasCountyandDistrictAttorneysAssociation; Sharing the hits in data from both solvedand unsolved cases with other key parties,including the relevant prosecutors’ offices,the original defense attorney and the lastknown attorney of record, crime victimsand surviving relatives, and a localorganization that litigates claims ofinnocence.HB 2290 required the Task Force to completea plan for implementation of a protocol relating tohits to closed cases, including a mechanism toensure uniform compliance at the local lawenforcement level, by October 1, 2020. The billalso required the Task Force, on or beforeDecember 1, 2020, to submit a report containing aKansas Legislative Research Department0-32021 Alvin Sykes Cold Case Task Force

The executive director of the State Boardof Indigents’ Defense Services (BIDS) orthe executive director’s designee; Adjusted the designee provision related tothe CODIS administrator member of theTask Force; The president of the Kansas BarAssociation or the president’s designee; Removed or updated outdated language; The director of victim services of theDepartment of Corrections or thedirector’s designee; and Extended the deadline for completion of aplan for implementation until October 1,2021, and the deadline for submission ofthe required report until December 1,2021; One member designated by the Governorwho represents an organization thatlitigates claims of innocence. Extended the expiration date for the TaskForce from December 30, 2020, untilDecember 30, 2021; and Provided for staff support for the TaskForce by the Office of Revisor of Statutes,the Legislative Research Department, andthe Division of Legislative AdministrativeServices.HB 2290 designated the chairperson of theSenate Committee on Judiciary and thechairperson of the House Committee on Judiciaryas co-chairpersons of the Task Force. The billrequired the Task Force to hold its initial meetingon or before October 1, 2019.The Task Force held its initial meeting onSeptember 25, 2019. At that meeting, a legislatormember and a representative of the MidwestInnocence Project presented an overview andbackground of the legislation creating the TaskForce, and a representative of the KBI presentedan overview of CODIS and current practices forCODIS hit dissemination.These changes are codified at KSA 2021Supp. 21-6901.TASK FORCE MEETINGS IN 2021Following the 2021 Session, the LegislativeCoordinating Council approved two meeting daysfor the Task Force, which met on August 19 andSeptember 15, 2021.Following the initial meeting, a subcommitteeof the Task Force met and prepared amemorandum containing a proposed report tosubmit to the Legislature to complete the charge ofHB 2290. However, before the full Task Forcecould meet and consider the proposed report, theCOVID-19 pandemic began and prevented theTask Force from completing its work by thedeadlines established in HB 2290.August 19, 2021At the August 19 meeting, the subcommitteemembers presented the memorandum they hadprepared with a proposed report to the Legislature.[Note: The memorandum is attached to this reportas Appendix A.]In discussing the process leading to thememorandum, the subcommittee members notedthey had found a lack of information regarding theprocess in place related to CODIS hits, as well asthe factors that may cause a delay in a hit or thereporting of a hit.In 2021, enacted HB 2077, among otherthings, made the following adjustments to the TaskForce: Renamed it the Alvin Sykes Cold CaseDNA Task Force;The subcommittee discussed the importance ofusing the Laboratory Information ManagementSystem (LIMS), software the KBI utilizes to logKansas Legislative Research Department0-42021 Alvin Sykes Cold Case Task Force

evidence and report results for forensic testing,including DNA reports. Prosecutors have access toLIMS through the Kansas Criminal JusticeInformation System, and LIMS data may besearched by KBI case number, suspect name,submitting agency case number, or a combination.Prosecutors have access to all reports submitted intheir jurisdiction, including any new CODIS hitson old cases. The subcommittee also notedlimitations on access to reports generated fromCODIS, such as federal restrictions, must also betaken into consideration.August 19 meeting.] The Co-chairperson thenasked the subcommittee and other Task Forcememberstoconsidertheproposedrecommendations and what changes might beneeded before adopting them at the Septembermeeting of the Task Force.September 15, 2021At the September 15 meeting, thesubcommittee members presented a ns for law enforcement agencyprotocols for cold case CODIS hits, transmissionof information to defense counsel, and KBItraining on CODIS and LIMS through BIDS andKACDL. [Note: The revised memorandum isattached to this report as Appendix B.]Due to the limited information available on theuse of CODIS and LIMS within the criminaljustice system, the subcommittee focused itsproposed recommendations on education andtraining, including: Mandatory training by the KBI for lawenforcement; Education of prosecutors through theKansas County and District AttorneysAssociation (KCDAA) regarding theavailability of LIMS; and Whether a specific time frame fornotification is needed or would be toodifficult given the differences amongcases; Education for defense counsel on theavailability of LIMS information,althoughthediscovery obligationassociated with the information rests withthe prosecutor. Who should be notified on behalf of thedefendant if defense counsel of record onthe case is no longer available, andwhether a court should appoint counsel ornotify the defendant directly in such acase; Whether legislation is needed to helpimplementtheTaskForcerecommendations, or if implementationshould be left to development of agencyprotocols and best practices by theKCDAA; and What ethical duties prosecutors have toprovide CODIS result information todefendants.Task Force members then asked questions ofthe subcommittee members and discussed variousrelated topics, including the following:One subcommittee member stated the focus ofthe memorandum was on first steps to be taken,and there could be additional clarification orstrengthening needed, especially regarding accessand education for defense counsel.Task Force members then discussed whetheradditional requirements were needed to ensure thatlaw enforcement agencies provide adequatenotification to interested parties of generatedCODIS reports received by the agencies.At a member’s request, a Co-chairpersonasked staff to provide Task Force members withinformation regarding cold cases that DNAinformation had helped resolve. [Note: Thisinformation was provided via email following themeeting and is included with the minutes for theKansas Legislative Research DepartmentFollowing the discussion, the Task Force, byconsensus, modified the subcommittee’s revisedproposed recommendations to: 0-5Add language recommending the KCDAAdevelop best practices for prosecutors;2021 Alvin Sykes Cold Case Task Force

AddlanguagerecommendingLegislature continue to monitorimplementation of the protocols; Clarify that prosecuting agencies have anongoing ethical duty to disclose theinformation to last counsel of record forthe defendant; Add language stating the investigationshould be concluded within a reasonabletime; Add language stating that the district courtshould appoint counsel to review theCODIS hit if defense counsel of record isunavailable; and Because the prosecuting agency has anongoing ethical duty to disclose the information tothe last counsel of record for the defendant, theprosecuting agency should promptly determinewhether there is an immediate investigative reasonnot to turn the information over to defensecounsel. The investigation should be concludedwithin a reasonable time and, at the conclusion ofthe investigation by law enforcement, the reportshould be transmitted to the defense counsel ofrecord regardless of the investigative result. If thedefense counsel of record is unavailable, thedistrict court should appoint counsel to review theCODIS hit.thetheEducationThe KBI currently provides training throughthe Kansas Law Enforcement Training Center toall law enforcement officers about the availabilityof the LIMS portal. It has become apparent thatnot all prosecutors may be aware of its availability.By extension, defense counsel has also beenunaware of its existence.Add language reflecting that a minority ofTask Force members believe there is aneed to enact these recommendations intolaw.The KBI has committed to providing repeatand ongoing training to prosecutors and lawenforcement across the state regarding theavailability and use of the LIMS portal.CONCLUSIONS AND ions over two meetings in which asubcommittee of Task Force members presentedproposals for discussion (attached to this report asAppendix A and Appendix B). Followingdiscussion on these proposals, the Task Forcemade the following recommendations. [Note: Forthe sake of clarity and consistency, the wording ofsome recommendations in this report has beenmodified from the version approved by the TaskForce at the September 15, 2021 meeting (attachedas Appendix C), but no substantive changes havebeen made.]The KBI should provide training on CODISand LIMS through BIDS and KACDL.KCDAA is also encouraged to offer suchtraining to its membership once every four years,at a minimum, coinciding with the election of newcounty and district attorneys.KCDAA should also remind its members ofthe obligation to provide these reports as part ofthe ongoing discovery process required by Bradyv. Maryland, 373 US 83 (1963) and statute.Protocol for Cold Case CODIS HitsWith the knowledge of the existence of theLIMS portal, defense counsel will be better able tomake specific requests of prosecutors to check forthe availability of updated reports related to theirclients’ cases.Each law enforcement agency should developa protocol for notifying the prosecuting agency ofany LIMS report. The Task Force alsorecommends the KCDAA develop “Best Practicesfor Prosecutors” regarding the protocol for coldcase CODIS hits. The Legislature should continueto monitor implementation of these protocols.Kansas Legislative Research Department[Note: A minority of the Task Force membersexpressed a need to enact the aboverecommendations into law.]0-62021 Alvin Sykes Cold Case Task Force

APPENDIX AMEMOTO: The Honorable Fred Patton and members of the Closed Case Task ForceFROM: Professor Alice Craig, Jeff Hahn, Darrin Devinney and Justin EdwardsRE: Proposed report to the Legislature of the State of KansasMr. Chairman and members of the Task Force,The above-named have discussed issues related to the reporting of “closed case” DNA(and other forensic testing) reports. To better focus our response to the legislature, we haveattempted to identify the primary issue and determine if there are areas of improvement to ensureno person who may have been wrongly convicted is left without immediate access to testingresults.To that end, we propose the following response to the legislative mandate provided inHB2290.ISSUE:Are there CODIS “hits” that are not being communicated to prisoners, in a timelymanner, which would exonerate them or cast doubt on their conviction?BACKGROUND:The Combined DNA Index System (CODIS) is the FBI’s “program of support forcriminal justice DNA databases as well as the software used to run these databases.”1 The FBIgrants state and local agencies access to this database, which allows them to compare unknownDNA samples to persons whose known DNA sample has been taken and submitted to theCODIS database.When evidence is collected and submitted for DNA testing, if a sufficient sample ofDNA is left behind and no known contributor has been identified, the sample can be submittedfor comparison against the CODIS database. In Kansas, the agency primarily responsible forsubmission into the CODIS database is the Kansas Bureau of Investigation (KBI). There are tworegional laboratories, in Sedgwick and Johnson Counties, which can submit samples to becompared against the : :text e%20databases. Last accessed September 24, 2020Kansas Legislative Research Department0-72021 Alvin Sykes Cold Case Task Force

APPENDIX AWhen an alert to a potential match is noted by the CODIS software, it produces a “hit”report, which is then reported by the KBI to the local law enforcement agency that submitted theDNA for comparison. The local agency is then requested to obtain a known sample of thesuspect’s DNA for confirmation, as CODIS hits are not confirmatory.DISCUSSION:There are many situations where a CODIS “hit” may arise, but most often these hits willoccur either during the active investigation of a case, or when previously untested DNA isordered tested post-conviction. In either of these situations, these forensic reports are routinelyprovided through the discovery process.The previously unknown scenario arose when a since-closed case resulted in a CODIS hitfrom a previously submitted piece of evidence. Imagine the following hypothetical: Aninvestigation produces multiple pieces of evidence capable of being tested for the presence ofDNA. All but one of those pieces of evidence generate a DNA profile consistent with the knownprofile of the defendant. The remaining piece of evidence has a DNA profile suitable forsubmission to CODIS and is submitted to the KBI. Defendant’s case proceeds to trial, resultingin a conviction and a sentence. Years later, a new investigation generates a new CODIS “hit”report on the original evidence. Who is given the new CODIS results?2The concern of some is that nothing happens with that report and potentially exculpatoryevidence is not provided to an incarcerated defendant.The KBI utilizes Laboratory Information Management Systems (LIMS) software to logincoming evidence and report out results for all forensic testing, including DNA reports. Thissoftware allows KBI scientists to log incoming evidence, track its progress through the agency,and submit reports to law enforcement through a portal. Once the report is ready, submittingagencies can log in to the portal and retrieve the report. In the above scenario, the KBI notifiesthe agency involved in the current submission but also provides a report to the agency thatsubmitted the original piece of evidence to CODIS through LIMS.Prosecutors have access to the LIMS system through the Kansas Criminal JusticeInformation System (KCJIS) portal. The LIMS database is searchable by KBI case number,suspect name and/or submitting agency case number. Even if the submitting law enforcementagency fails to obtain the report in a timely manner, the prosecutor can access the LIMS portaland obtain a copy of the same report, enabling expedient discovery. Prosecutors can see allreports submitted in their jurisdiction and will have access to any new CODIS hits even on oldcases.PROPOSED CHANGES:2One important consideration involves who is allowed access to the report. 34 USCA §12592(b)(3) limits CODIS access to state and local labswhich agree to restrict the release of DNA identification information. Violation of these restrictions can result in the loss of access to thedatabase by the KBI.Kansas Legislative Research Department0-82021 Alvin Sykes Cold Case Task Force

APPENDIX AThe KBI currently provides training through the Kansas Law Enforcement TrainingCenter (KLETC) to all law enforcement about the availability of the LIMS portal. It has becomeapparent that not all prosecutors may be aware of its availability. By extension, defense counselhave been unaware of its existence. The KBI has committed to providing repeat and ongoing training to prosecutorsand law enforcement across the State of Kansas about the availability and use ofthe LIMS portal. The Kansas County and District Attorneys Association (KCDAA) is encouragedto offer such training to its membership on no less than a quadrennial schedule,coinciding with the election of new county and district attorneys. KCDAA should also remind its members of the obligation to provide thesereports as part of the ongoing discovery process required by Brady v. Marylandand statute. Armed with the knowledge of the existence of the LIMS portal, defense counselwill be better able to make specific request of prosecutors to check for theavailability of updated reports related to their clients’ cases.CONCLUSION:The above-named believe increased training and better awareness of the LIMS portal willsignificantly reduce the potential risk of exculpatory forensic reports not being provided toincarcerated persons. We recommend the Task Force adopt these recommendations as its ownand report back to the Kansas Legislature with a recommendation to end the Task Force.Kansas Legislative Research Department0-92021 Alvin Sykes Cold Case Task Force

APPENDIX BMEMOTO: The Honorable Fred Patton and members of the Closed Case Task ForceFROM: Alice Craig, Jeff Hahn, Darrin Devinney and Justin EdwardsRE: September 2021 Proposed report to the Legislature of the State of KansasMr. Chairman and members of the Task Force,The above-named have discussed issues related to the reporting of “closed case” DNA(and other forensic testing) reports. To better focus our response to the legislature, we haveattempted to identify the primary issue and determine if there are areas of improvement to ensureno person who may have been wrongly convicted is left without immediate access to testingresults.To that end, we propose the following response to the legislative mandate provided inHB2290.ISSUE:Are there CODIS “hits” that are not being communicated to prisoners, in a timelymanner, which would exonerate them or cast doubt on their conviction?BACKGROUND:The Combined DNA Index System (CODIS) is the FBI’s “program of support forcriminal justice DNA databases as well as the software used to run these databases.”1 The FBIgrants state and local agencies access to this database, which allows them to compare unknownDNA samples to persons whose known DNA sample has been taken and submitted to theCODIS database.When evidence is collected and submitted for DNA testing, if a sufficient sample ofDNA is left behind and no known contributor has been identified, the sample can be submittedfor comparison against the CODIS database. In Kansas, the agency primarily responsible forsubmission into the CODIS database is the Kansas Bureau of Investigation (KBI). There are tworegional laboratories, in Sedgwick and Johnson Counties, which can submit samples to becompared against the : :text e%20databases. Last accessed September 24, 2020Kansas Legislative Research Department0-102021 Alvin Sykes Cold Case Task Force

APPENDIX BWhen an alert to a potential match is noted by the CODIS software, it produces a “hit”report, which is then reported by the KBI to the local law enforcement agency that submitted theDNA for comparison. The local agency is then requested to obtain a known sample of thesuspect’s DNA for confirmation, as CODIS hits are not confirmatory.DISCUSSION:There are many situations where a CODIS “hit” may arise, but most often these hits willoccur either during the active investigation of a case, or when previously untested DNA isordered tested post-conviction. In either of these situations, these forensic reports are routinelyprovided through the discovery process.The previously unknown scenario arose when a since-closed case resulted in a CODIS hitfrom a previously submitted piece of evidence. Imagine the following hypothetical: Aninvestigation produces multiple pieces of evidence capable of being tested for the presence ofDNA. All but one of those pieces of evidence generate a DNA profile consistent with the knownprofile of the defendant. The remaining piece of evidence has a DNA profile suitable forsubmission to CODIS and is submitted to the KBI. Defendant’s case proceeds to trial, resultingin a conviction and a sentence. Years later, a new investigation generates a new CODIS “hit”report on the original evidence. Who is given the new CODIS results?2The concern of some is that nothing happens with that report and potentially exculpatoryevidence is not provided to an incarcerated defendant.The KBI utilizes Laboratory Information Management Systems (LIMS) software to logincoming evidence and report out results for all forensic testing, including DNA reports. Thissoftware allows KBI scientists to log incoming evidence, track its progress through the agency,and submit reports to law enforcement through a portal. Once the report is ready, submittingagencies can log in to the portal and retrieve the report. In the above scenario, the KBI notifiesthe agency involved in the current submission but also provides a report to the agency thatsubmitted the original piece of evidence to CODIS through LIMS.Prosecutors have access to the LIMS system through the Kansas Criminal JusticeInformation System (KCJIS) portal. The LIMS database is searchable by KBI case number,suspect name and/or submitting agency case number. Even if the submitting law enforcementagency fails to obtain the report in a timely manner, the prosecutor can access the LIMS portaland obtain a copy of the same report, enabling expedient discovery. Prosecutors can see allreports submitted in their jurisdiction and will have access to any new CODIS hits even on oldcases.Kansas Legislative Research Department0-112021 Alvin Sykes Cold Case Task Force

APPENDIX BPROPOSED CHANGES:Protocol for Cold Case CODIS HitsEach Law Enforcement Agency should develop a protocol for notifying the prosecutingagency of any LIMS report.The prosecuting agency should promptly determine if there is an immediate investigativereason not to turn the information over to defense counsel. At the conclusion of the investigationby law enforcement, the report should be transmitted to the defense counsel of record regardless ofthe investigative result. The prosecuting agency has an on-going duty to disclose the information tocounsel of record for the Defendant as part of discovery.EducationThe KBI currently provides training through the Kansas Law Enforcement TrainingCenter (KLETC) to all law enforcement about the availability of the LIMS portal. It has becomeapparent that not all prosecutors may be aware of its availability. By extension, defense counselhas been unaware of its existence. The KBI has committed to providing repeat and ongoing training to prosecutorsand law enforcement across the State of Kansas about the availability and use ofthe LIMS portal. The KBI should provide training on CODIS and the LIMS system through theState Board of Indigent Defense Services (SBIDS) and the Kansas Associationof Criminal Defense Lawyers (KACDL). The Kansas County and District Attorneys Association (KCDAA) is encouragedto offer such training to its membership on no less than a quadrennial schedule,coinciding with the election of new county and district attorneys. KCDAA should also remind its members of the obligation to provide thesereports as part of the ongoing discovery process required by Brady v. Marylandand statute. Armed with the knowledge of the existence of the LIMS portal, defense counselwill be better able to make specific request of prosecutors to check for theavailabil

OTHER COMMISSIONS, COMMITTEES, AND TASK FORCES Report of the Alvin Sykes Cold Case DNA Task Force to the 2022 Kansas Legislature CO-CHAIRPERSONS: Senator Kellie Warren and Representative Fred Patton OTHER LEGISLATIVE MEMBERS: Senator David Haley and Representative John Carmichael OTHER NON-LEGISLATIVE MEMBERS: Alice Craig, Audrey Cress, Darrin Devinney, Justin .