SATI e-News: January 2, 2004

• In Sexual Assault Cases, Athletes Usually Walk
• Bryant's Lawyers Subpoena Accuser's Mom for Victim's Medical Records
• Crackdown on Alcohol Could Cost Air Force Cadet Her Career

News Feature

• Making A Difference Conference Scholarship Applications Available On Line

• DNA Challenges

  • Police ruse that yielded suspect's DNA is upheld
  • Judge in Peterson case ruled that prosecutors can use mitochondrial DNA
  • Segregating DNA Key to agreement in lawsuit against Louisiana State Police
  • Man cited for contempt of court for refusing to provide buccal swab
  • City doesn't have insurance to fight lawsuit filed by man exonerated by DNA
     
• DNA Funding
  • Orchid Cellmark Awarded FBI Contract
    
  • Appropriations Bill for FY 2004 includes $100 million for DNA Initiative
    
  • House passes Advancing Justice Through DNA DNA Technology Act of 2003

DNA News from Around the United States & Abroad

• DNA Clears PA Death Row Inmate after 21 Years
• Wrongly Imprisoned Man Wins $5.3 Million Settlement
• Gloves left behind by finger-print conscious suspect provide DNA

• From the Desk of the Training Director: Evaluating and Measuring Law Enforcement Success

  **Sexual Assault News**

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By Colleen Slevin, Associated Press Writer
Thu Dec 11, 3:03 PM ET
 
DENVER - The mother of basketball star Kobe Bryant's accuser was subpoenaed for a hearing on whether the defense should have access to the 19-year-old woman's medical records.
 
Prosecutors have not decided whether to oppose the subpoena, district attorney spokeswoman Krista Flannigan said Wednesday. Defense attorney Pamela Mackey declined to comment.
 
Bryant, 25, is charged with attacking the 19-year-old last June at a Colorado resort where she worked. He has said the two had consensual sex. A call to the accuser's family lawyer was not immediately returned. Bryant's lawyers have sought records from the North Colorado Medical Center in Greeley, where authorities brought the woman in February after determining she was a "danger to herself."
 
Some experts have speculated the defense is trying to show that the woman waived her privacy rights to those records by discussing them with others, such as her mother. Even if it is established that the alleged victim waived her privacy rights, the defense would still have to prove how the records are relevant to the case, said Wendy Murphy, a former prosecutor and professor at the New England School of Law.
 
"The real goal here is to intimidate the victim, violate her privacy and undermine her relationships," Murphy said. State District Judge Terry Ruckriegle has rejected a prosecution motion to seal all court filings related to evidence in the case. The motion was filed Tuesday and made available Wednesday. Ruckriegle said attorneys can file motions about Bryant and his accuser that leave sensitive details to be filed separately under seal.
 
The judge urged attorneys to make sealed filings "sparingly and wisely." In another order made available Wednesday, Ruckriegle denied a media request for a camera in the courtroom during the Dec. 19 hearing, which Bryant must attend. He gave permission for one camera in the hall outside the courtroom.
 
The Los Angeles Lakers (news) star faces four years to life in prison or 20 years to life on probation if convicted of felony sexual assault.

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**News Feature**

• Realistic Characteristics of Sexual Assault. Understanding the importance of cultural myths and misconceptions regarding sexual assault.
• Challenges. Identifying the unique challenges faced when investigating and prosecuting crimes of sexual assault.
• Barriers. Recognizing and removing barriers to the criminal justice system and victim services.
• Skills. Developing skills to overcome challenges to a victim’s credibility and corroborating every possible aspect of her story while facilitating rapport and cooperation.
• Application. Practicing a multi-disciplinary, collaborative approach.
• Development of New Success Measures. Arrest is often used as a tool to measure the outcome of a crime report. Effective Sexual Assault Response Teams must reevaluate these mechanisms and question the final outcome of every case.

Implementing collaborative strategies for “Making a Difference”

• Victim Support. Combating victimization by providing supports that reduce the fear and trauma of reporting and going to trial.
• Public Awareness. Documenting the myths and stereotypes that make effective prosecution of sexual assaults difficult, and challenging these biases.
• Challenging the Legal Process. Raising objections and appealing cases that up to now have fallen outside the effective jurisdiction of the criminal justice process.

Becoming “Partners for Change”

• Collaboration. Acquiring the capacity for new forms of collaboration that help each organization do a better job, increasing the effectiveness of the total process.
• National Social Action. Working with the seven other participant-communities to accomplish a larger goal of stimulating national social change.
• Organizational Change. Acquiring the capacity to advance structural and organizational change in ones own agency and community.

Two separate three-day conferences will take place October 12-15, 2004 in Ottawa Canada, and on October 26-29, 2004 in San Diego California.

Community Team Makeup
 
A minimum of six, and ideally up to eight individuals, from each of eight community teams will be awarded scholarships to attend the conference. The scholarship will include the registration fee, training material, hotel accommodations, airfare and conference meals. The scholarship will not cover the participants’ salaries. (Complete details will be provided at the time the application is submitted.) Each community team must have a minimum of six participants, two from law enforcement, advocacy and prosecution. Teams of eight may include participants unique to the sexual assault response team models in each community, e.g., forensic examiner, judges, public health workers, researchers, lobbyists, mental health workers and community educators. One of the representatives from prosecution may be a representative from the Victim/Witness Assistance Program within the prosecuting attorney’s office.
 
A national committee with representatives from advocate groups, law enforcement, medical and prosecution has been formed to evaluate and numerically score the applications.
 
To obtain the application and the eight Community Scholarship Application Questions, click on EVAW: Making a Difference.

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**Forensic News**

 The following news summaries in this section are reprinted with permission from the
DNA Legislation & News, published by Smith Alling Lane.

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**DNA News from Around the United States & Abroad**

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In many cities across the United States, Chiefs of Police, Sheriff’s and Campus Administrators report their crime trends at the close of the year, often directly to the media. In addition to crime statistics, arrest statistics and clearance rates are commonly used to measure successes and failures within their jurisdictions.
 
We need to create new measures of success for law enforcement. But first, we need to begin with identifying and understanding the roles of members of our own sexual assault response teams. Many advocates, medical personnel and other members of the sexual assault response team see a police officer’s primary role as enforcement or arrest, especially when responding to crimes like sexual assault where an arrest is often demanded. It is important to recognize that an officer’s first responsibility is actually preservation of life; to protect and serve. This means law enforcement should provide the best service possible regardless of whether anyone believes the case would be successfully prosecuted.
 
When we fail to establish realistic, meaningful evaluation tools, it is too easy to turn our back on difficult investigations (the majority of sexual assaults). In addition, we contribute to the burn out of the professionals who serve victims of sexual assault because the measure of success we have established is often unattainable, resulting in constant disappointment, frustration and job dissatisfaction. Unfortunately, this frustration is often transmitted to the victim in many different ways.
 
Example:
 
If the victim was engaged in behavior that increased her risk of sexual assault at the time of the crime, her credibility may be in question. Based on experience, the detective may believe the prosecutor would not file criminal charges against the suspect because the case may not have jury appeal. The detective may form a premature conclusion that it would be a waste of his time to thoroughly investigate the case if his personal measure of success or his supervisor's evaluation of his performance is based on arrest and prosecution rather than self-initiative, investigative skills, innovation, tenacity, validation and compassion.
 
In addition to setting members of sexual assault response teams up for failure, published arrest rates have absolutely nothing to do with the final outcome of a crime report. Because the majority of sexual assault investigations are delayed reports involving non-strangers, with little or no evidence, well trained field officers and sex crimes detectives know that an arrest should frequently be delayed pending a thorough investigation.
 
A thorough investigation might involve the use of pretext phone calls, search warrants, and forensic evidence including possible DNA analysis and toxicology, witness interviews and a search for prior victims. The investigation could take months. Many of these cases are submitted to the prosecuting attorney or the grand jury when an arrest has never been made. Depending on the results, an arrest may never be made, however, it does not mean the investigating officer didn’t do a thorough job. On the other hand, if an arrest is made prematurely, the prosecutor will most likely reject the case. Although the investigating agency can always continue the investigation, this may be unlikely if the detective is handed another case the same day or the next day.
 
When we examine arrest rates, we must also look at the outcome of those arrests. A detective may provide a supervisor or prosecuting attorney with a brief verbal summary of the limited facts as he knows them at the time. The prosecutor may be reluctant to file charges based on what is immediately available. The detective may take this as a signal that the prosecuting attorney isn’t interested in the case and interprets the reaction as a rejection. Both law enforcement and prosecuting attorneys should be held to the highest standards. How many of the investigations were conducted thoroughly? Was the prosecuting attorney provided with complete reports that would provide enough information to make an appropriate filing decision? If an arrest was made, how many of those arrests were referred to the prosecuting attorney, how many of the suspects were charged by the prosecutors' office, how many went to trial, how many accepted plea bargains and for what charge? Without this information, an arrest rate is meaningless.
 
Traditionally, statistics focus on how many cases are cleared. Cleared is often interpreted as “solved” although this is inaccurate. Law enforcement can clear a reported offense when at least one person is arrested and charged with the offense AND turned over to the court for prosecution. Law enforcement may also clear a crime by exception when some element beyond law enforcement control precludes issuing formal charges against the offender such as¹:

• The death of the offender or a deathbed confession

• The victim’s refusal to cooperate with prosecution AFTER the offender has been identified

• The offender was arrested and prosecuted for another crime in a different jurisdiction

In all exceptional clearances, law enforcement MUST

• Identify the offender

• Have enough evidence to support arrest and

• Know the offender’s location

Other methods of Clearance include:

• The case is issued or rejected by the prosecutor

• The crime occurred in another jurisdiction

• Unfounded, meaning law enforcement determines the report is baseless OR false

These numbers can be deceiving, especially in the case of sexual assault where generally only forcible rape is tracked. The FBI reporting requirements are clear that a case cannot be closed because an arrest is not made or the victim refuses to participate. However, other factors that are typically responsible for unfounded declarations are²:

• Victim’s Late reporting

• Lack of corroborating evidence

• Lack of cooperation by the victim and/or witnesses

• Reporting in the wrong jurisdiction

• Discrepancies in the victim’s story

• Wrong address given by the victim

• Victim’s drunkenness

• Victim’s drug usage

• Victim’s being thought a prostitute

• Victim’s uncertainty of events

• Victim’s belligerence

• The police are unable to locate the victim

• The victim does not follow through with prosecution (fails to return phone calls or make appointments)

• The victim recants

• No assailant can be identified³

Even when cases are seen as legitimate, they are often improperly unfounded because they are just plain difficult to investigate. Although none of the reasons sited above are legitimate reasons for unfounding a sexual assault case, there are many examples of departments routinely using unfounding as a mechanism for improperly disposing of “difficult cases.”
 
The consequences of improperly unfounding sexual assault cases are tragic, for victims and the community.

• For police, high rates of unfounding can lead to scrutiny and public pressure. Cities recently under fire include Atlanta, Baltimore, Detroit, and Philadelphia.

• Improperly unfounding cases represents a miscarriage of justice and a threat to public safety.

• For victims whose cases are improperly unfounded, this practice creates a sense of betrayal and distrust and can have devastating effects on the victim’s recovery.

• Public awareness that sexual assault cases are not taken seriously will inevitably affect the willingness of future victims to report to police.

We must first decide on a national standard for "baseless" and "false" allegations before we can begin to hold police officers and deputies responsible for the national reporting problem. Unfortunately, law enforcement is still recovering from an era when success was determined by the number of arrests, tickets, or field contacts made by an officer. Whereas Sheriffs, Chiefs of Police, Commanding Officers and Campus Administrators, are often times evaluated by the crime rates in their jurisdictions, and how those crimes are cleared, police supervisors have used these same rates to evaluate the performance of an officer or detective.
 
Many Police Departments establish their goals or objectives based on arrest and clearance rates. As an example, a typical Sex Crimes Unit might strive to clear 50 percent of the cases they receive. In reality, these are poor evaluation tools since good detectives know that clearance rates have little to do with the quality of an investigation.
 
Example:
 
While working Crimes Against Persons, long before the San Diego Police Department had a Domestic Violence Unit, I worked with a detective who spent a great deal of time belittling domestic violence victims and talking them out of prosecution. He did this so that he wouldn't have to write a report and refer the investigation to the prosecutor's office. If he could talk the victim out of prosecution, he could cancel the case exceptional because the suspect was identified but the victim refused to prosecute. In reality, this detective did a disservice to the community, the Department and the victim, but on paper the cancellation contributed to the stated goals of the Department and that particular Unit. This particular detective's supervisor should have been looking at the number of cases canceled exceptional and the number of cases that were actually referred for prosecution for a better picture of what was actually taking place in the Unit.
 
Supervisors and Police Administrators must understand the complexity of sexual assault cases and specialized units should be created whenever possible. If the agency isn’t large enough to create a specialized Unit, Departments can identify experts within their own agency or within their County or in some very rural areas, across counties. Agencies with smaller population bases can share cases and attend peer reviews or system review meetings to identify enough cases to effectively hone investigative and forensic examiner skills. Once proper policies and procedures are in place, training deficiencies need to be addressed on a case-by-case basis. In isolated cases where a supervisor's investigation or an internal affairs’ investigation indicates there was malice or negligence, discipline may be warranted. However in most cases, I believe you will find that officers are struggling to do the right thing but have been given little support, guidance and training.

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