National focus turns to rape kit backlog

By Sharon Cohen / The Associated Press

DNA lab errors — The FBI has notified crime labs across the country that it has discovered errors in data used by forensic scientists in thousands of cases to calculate the chances that DNA found at a crime scene matches a particular person, several people familiar with the issue said.

The bureau has said it believes the errors, which extend to 1999, are unlikely to result in dramatic changes that would affect cases. It has submitted the research findings to support that conclusion for publication in the July issue of the Journal of Forensic Sciences, the officials said.

But crime labs and attorneys said they want to know more about the problem before conceding it would not make much difference in any given case.

“The public puts so much faith in DNA testing that it makes it especially important to make those the best estimates possible,” said Wright State University professor of statistics Daniel Krane, an expert whose work has been cited by defense attorneys. “There is no excuse for a systematic error to many thousands of calculations in such a context.”

Krane, who identified errors 10 years ago in the DNA profiles the FBI analyzed to generate the population statistics data, called the consequences of the disclosure appalling, saying the data have been used in tens of thousands or hundreds of thousands of cases worldwide in the past 15 years. He said when he flagged the problems a decade ago, the FBI downplayed his findings.

The issue centers around the FBI’s “Pop stats,” which are built into the software programs used by 9 in 10 U.S. labs and many overseas, Krane said.

While juries might well reach the same decision if errors mean that an individual has a 1 in a billion chance of matching a crime scene sample instead of 1 in 10 billion, for example, that may not be so if errors were to halve, say, assertions that person had a 1 in 180 chance of matching, as Krane said came up in a case that he testified in last week.

Such low ratios are increasingly common as state and local labs analyze smaller and smaller traces of DNA found on objects such as guns or countertops — known as “low-copy” and “touch DNA” — and often are sifting through DNA mixtures, or profiles contributed by multiple people.

Stephen Mercer, chief of the forensic division of Maryland’s Office of the Public Defender, said his office last week notified its attorneys about the issue and suggested they consider asking prosecutors about such problems in cases involving DNA evidence.

“The prediction that the errors are likely to have a nominal impact has to be assessed by the defense in the individual circumstances of each particular case,” Mercer said.

In a bulletin sent to crime labs, the FBI said the problem stemmed from “clerical mistakes in transcriptions of the genotypes and to limitations of the old technology and software.”

— The Washington Post

The evidence piled up for years, abandoned in police property rooms, warehouses and crime labs. Now, tens of thousands of sexual assault kits are giving up their secrets — and rapists who’ve long remained free may finally face justice.

A dramatic shift is taking hold across the country as police and prosecutors scramble to process these kits and use DNA matches to track down sexual predators, many of whom attacked more women while evidence of their crimes languished in storage. Lawmakers, meanwhile, are proposing reforms to ensure this doesn’t happen again.

“There’s definitely momentum,” says Sarah Haacke Byrd, managing director of the Joyful Heart Foundation, an advocacy group working on the issue. “In the last year, we really are seeing the tide turn where federal and state governments are offering critically needed leadership and critically needed resources to fix the problem.”

In Cleveland, the county prosecutor’s office has indicted more than 300 rape suspects since 2013, based on newly tested DNA evidence from old kits. Authorities expect to eventually charge 1,000.

In Houston, authorities recently cleared a backlog of nearly 6,700 kits that included cases dating back to the 1980s. The project, which cost about $6 million, turned up 850 matches in a national DNA database.

In Detroit, the Wayne County prosecutor’s office is seeking donations to help analyze, investigate and prosecute cases from the results of more than 11,000 kits that had been untested. Hamstrung by city and county money troubles, the prosecutor has formed an unusual partnership with two nonprofits to raise $10 million. So far, contributions have poured in from corporations and residents from all 50 states and eight foreign countries.

There’s a new urgency, too, in statehouses from Alaska to Maryland, where legislators in more than 20 states are considering — and in some cases, passing — laws that include auditing all kits and deadlines for submitting and processing DNA evidence. Recent counts in Louisiana found nearly 1,100 unprocessed kits. Disturbingly, nearly 100 additional kits from two New Orleans children’s hospitals also have been discovered.

The high-profile campaign also is getting a big financial boost: At least $76 million— more than half from the feds — will be available for testing, prosecution and reforms.

No one knows how much it will all cost in the end. And it won’t be easy to make up for lost time.

In some cases, it’s simply too late for justice because statutes of limitations have expired. In others, investigators may have to wade through old, often incomplete, police files, search for witnesses and suspects, confront fading memories and persuade survivors to reopen painful chapters of their lives. It will be a lot slower-going than it is on those prime-time police procedurals.

“It’s great entertainment on television that in one hour’s time, we have a crime, we take the sample, we get a ‘hit,’ we arrest the suspect and then he’s prosecuted and off to jail,” says Doug McGowen, coordinator of Memphis’ Sexual Assault Kit Task Force. “That’s just not the case, clearly.”

In Memphis, about half of more than 12,300 kits have been tested or are waiting to be analyzed. It will take at least 40 hours to follow up on each case and all will be investigated even if there is no DNA match, McGowen says. He estimates the police work and trials could continue until 2019.

But once all the kits are processed, the potential is enormous — both for communities and rape survivors.

As Vice President Joe Biden recently declared: “If we are able to test these rape kits, more crimes will be solved, more crimes will be prevented, and more women will be given back their lives.”

Uncovering serial rape

In resurrecting old crimes, investigators have detected an alarming pattern: Many rapists are repeat offenders.

In Cuyahoga County, home to Cleveland, about 30 percent of cases that have developed from testing so far are serial rape suspects. One of them, Robert Green, assaulted seven women over nearly a decade as evidence went unprocessed. He pleaded guilty last fall and was sentenced to up to 135 years in prison.

In Wayne County, home to Detroit, authorities say 288 potential serial rapists have been found among the kits tested. Among the cases to surface is Reginald Holland, who raped a woman in 2005. His identity wasn’t known then. Three years later, Holland’s DNA was entered in a national database on an unrelated case. By the time his first victim’s sexual assault kit was tested in 2012, he’d assaulted four more women. In 2014, he was sentenced to life in prison.

“Yes, it is an embarrassment,” county prosecutor Kym Worthy says of these cases. “It shows that we, as this country, do not respect rape victims to the extent that we respect other victims.”

Her office is now working with the Michigan Women’s Foundation and the Detroit Crime Commission to raise money to complete the testing and investigation of kits and bring suspects to trial.

“These results are coming very fast and furious,” she adds. “Because we don’t have the staff of investigators and prosecutors … in essence we’re developing another backlog.”

Lisa Bloom, a lawyer, author and TV legal analyst, said while fundraising is a worthy pursuit, it reveals something about the priorities of a justice system where money is always found to prosecute prostitutes and drug crimes. “Women’s lives are not worth a grand, apparently,” she wrote in an online commentary. “Want to lock up rapists? Hey, have a bake sale!”

Some major financial commitments, though, will ease that burden.

President Barack Obama’s 2015 budget set aside $41 million to help test kits and prosecute perpetrators. This spring, Biden announced the 2016 fiscal year budget includes a proposal for another $41 million to chip away at the backlog, along with $20 million to develop reforms that will prevent a recurrence.

Manhattan District Attorney Cyrus Vance also has pledged up to $35 million — money his office received from asset forfeiture cases — that he estimates will be enough to test 70,000 kits.

“We felt this was an essential investment,” Vance said. “Rapists are sex offenders who are moving from one location to another. There will be crimes that are going to be solved in other states that are linked to New York.”

That’s already happened. DNA evidence from newly tested Detroit-area rape kits has been linked to crimes in 31 states — New York included — and the District of Columbia.

Vance’s office says labs, police and prosecutors from 30 states have expressed interest in the funds, which will be distributed in late summer or early fall.

It took four years for New York City to eliminate its own backlog of 17,000 cases. In Manhattan, that led to 49 indictments, including some “John Doe” cases, which identify suspects by their genetic code and prevent them from avoiding prosecution by using the statute of limitations.

In late April, one of those “John Does” shed his anonymity.

That case dated back to January 1995, when a 25-year-old woman was raped and robbed at knifepoint. A sexual assault evidence kit was taken at a hospital. In 2001, it was entered into the Combined DNA Index System, or CODIS, a national DNA database.

It remained there 14 years. Then, this spring, a break. A DNA profile from Joseph Giardala was added to CODIS because of an unrelated case in Florida. It matched the one from the New York assault.

Giardala, 44, who was arrested in Los Angeles, returned to New York to face charges — more than 20 years later.

What took so long?

The new attention to sexual assault kits stems from a combination of factors: the persistence of advocacy groups such as the Joyful Heart Foundation, investigative media reports, the willingness of rape survivors to speak out and political support from statehouses up to the White House.

But the full scope of the problem is something of a mystery.

No federal agency tracks untested sexual assault kits, but Joyful Heart estimates it’s in the hundreds of thousands. (Texas alone has more than 20,000, according to recent congressional testimony.) The group is getting help from two law firms, working without charge, who are using public record requests to gauge the extent of the backlog in about 25 police departments around the country.

Dallas; Salt Lake City; Portland; and Kansas City, Missouri, have reported untested kits. The Las Vegas metro police department has one of the larger backlogs — more than 5,600 kits — and plans to test all of them.

San Francisco police announced last winter they’d sent out 753 rape kits for analysis and are consulting with other departments on the best way to handle those beyond the statute of limitations.

The question remains: How did this happen in the first place?

“There is no smoking gun that you can point to in any city in America to say this is the one reason why we have this accumulation of kits that have been untested,” says McGowen, the coordinator of the Memphis task force, who notes that DNA wasn’t widely used until the late 1990s. “It’s very hard to quantify the actions of people when the science was new … or when the science wasn’t available. We’re looking at it through today’s lens.”

Before DNA, rape kits could be tested for blood group typing, but that was nowhere as definitive and the evidence could broadly exclude or include a suspect — if one had been identified.

DNA proved to be a turning point, but Houston Assistant Police Chief Mary Lentschke notes that police still faced two big obstacles: a shortage of both money and crime lab staff. It has cost $500 to $1,500 to test and analyze each kit. And as DNA became more common in crime-solving, labs were overwhelmed with requests for testing, for homicides as well.

“When you don’t have the funding and you don’t have the staffing, you make decisions on a case-by-case basis,” she says.

Some police departments haven’t tested kits if the woman knew the assailant, she didn’t want to pursue charges or the attacker confessed.

Critics claim these policies reflect a more general attitude of law enforcement not placing a high priority on solving sexual assaults.

“You shouldn’t have a kit sitting on a shelf somewhere for 20 years,” says Louisiana State Sen. J.P. Morrell, sponsor of a law that required police and sheriffs to report untested kits. “I think the message it sends to everyone is that law enforcement does not take sexual assault seriously. … Some want to write it off as sloppiness. It’s apathy.”

Rebecca Campbell, a Michigan State University professor who has consulted and trained police departments on trauma and sexual assault, says skepticism and, at times, hostility toward women who’ve been raped have added to the problem.

Police often “don’t understand trauma,” she said. “They often expect a certain set of behaviors: crying and visible signs of distress. If a victim is very calm and quiet, they think there’s no possible way she could have been raped.”

Campbell was the chief author of a multi-year study that included interviews, data analysis and reviews of 1,595 untested sexual assault kits in Detroit. She concluded that understaffed crime labs and high turnover in police leadership contributed to the decades-old backlog.

But evidence also clearly showed “police treating victims in dehumanizing ways,” according to the study funded by the National Institute of Justice, released in April.

Women were often assumed to be prostitutes, the study found, and adolescents frequently perceived as concocting bogus narratives to avoid getting in trouble if, for example, they missed a curfew.

“Law enforcement, generally, they just do not believe victims,” Campbell says. “They believe that they’re lying, that they’re making a story up to cover up for bad behavior.”

Illinois Attorney General Lisa Madigan also notes that women whose kits aren’t tested promptly may be less inclined to help police and prosecutors. “They may begin to question why they consented to an intrusive medical forensic examination that took hours,” she said in recent congressional testimony. “They may wonder why they bothered to report the incident in the first place.”

But some say progress is being made in Detroit and other cities with new police training and rules for handling kits, improved understanding of trauma and legal reforms that will prevent new backlogs.

“Police have come a long way,” says Sgt. Amy Mills, head of the Dallas police sex assault unit. “I cannot believe the reports I read that were made five years ago, compared to the way they are now. It’s just 180 degrees.”

When law enforcement deals with rape survivors now, Mills said, “We always start with, ‘We believe you,’ not ‘Convince us.’”

Waiting for justice

For the rape survivors themselves, the delays in testing rape kits have been infuriating, frustrating — and inexplicable.

Natasha Alexenko was a college student in New York in 1993 when she was raped and robbed at gunpoint while returning home from her job.

Alexenko says police told her a few years later that they’d pursued all leads and the case was closed.

“I just assumed they knew what they’re doing,” she says. “Surely, they tested the kit. Surely, they followed up on everything. … Why wouldn’t someone want to apprehend a clearly violent criminal? … I was very young and naive.”

Nearly a decade had passed when the prosecutor’s office called to notify Alexenko her rape kit would be tested. “I waited nine and half years for someone to tell me I mattered and they were still thinking about me,” she says.

In 2007, Victor Rondon was found through a match to a DNA profile after he’d been arrested on a minor charge in Las Vegas. The next year, Alexenko testified against him in a New York court, and he was sentenced to up to 107 years.

“I felt that was the moment I took back the power from him,” Alexenko said of her testimony.

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