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SATI e-News: January 2, 2004

  

 
In This Issue:
      
     Sexual Assault News

News Feature

Forensic News
  • 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
Promising Practices: From the Desk of the Training Director
  • From the Desk of the Training Director: Evaluating and Measuring Law Enforcement Success
 

  **Sexual Assault News**

 
     
  In Sexual Assault Cases, Athletes Usually Walk
     
  By Tom Weir and Erik Brady, USA Today
December 22, 2003
Find this article at: http://www.usatoday.com/sports/2003-12-21-athletes-sexual-assault_x.htm
 
As Kobe Bryant's sexual assault case winds its way through pretrial motions and hearings, the Los Angeles Lakers star may have one intangible factor working in his favor. USA TODAY research of 168 sexual assault allegations against athletes in the past dozen years suggests sports figures fare better at trial than defendants from the general population.
 
Of those 168 allegations, involving 164 athletes, only 22 saw their cases go to trial, and only six cases resulted in convictions. In another 46 cases, a plea agreement was reached. Combined with the six athletes convicted at trial and one who pleaded guilty as charged, that gives the athletes a 32% total conviction rate in the resolved cases. That means more than two-thirds were never charged, saw the charges dropped or were acquitted. (Related item:
Cases involving athletes and sexual assault)
 
"I would say almost the exact opposite would be true in the normal course of business," says Nancy O'Malley, who chairs the sexual assault committee of the California District Attorneys Association and who is Alameda County's chief assistant district attorney.
 
"In some areas, the conviction rate is 80-85%" at trial, O'Malley says. In Alameda County, which includes Oakland and Berkeley, "we probably have a 90% conviction rate of those that go to trial."
 
National statistics also suggest most ordinary defendants charged with sexual assault are punished. In May 1998 the U.S. Department of Justice tracked rape charges in the nation's 75 largest counties and found 52% of the defendants in 586 cases were convicted of rape and 14% were convicted of some other crime, either at trial or through pleas.
 
"It's not surprising that it's a relatively low conviction rate" for prominent athletes, says Linda Fairstein, former head of the sex crimes unit in the Manhattan district attorney's office in New York and a board member of the National Center for Victims of Crime.
 
"These are cases where frequently even if the claim is legitimate there is enormous pressure on the victim not to press charges, that you're ruining his career," Fairstein says.
 
Prosecutors who have handled these high-profile cases say they also face a hurdle because of the "he said-she said" nature of sexual assault trials, particularly when a celebrity defendant's word is pitted against that of an accuser unknown to jurors, which figures to be the scenario in Bryant's trial.
 
Charges were dropped in 20% of the resolved athlete-related incidents, and in an additional 36% law enforcement authorities never filed formal charges.
 
There is another explanation, to be sure, for why so many athletes are never charged. Because of their celebrity or wealth, they can be targets for false allegations.
 
No charges, for example, were filed against Pittsburgh Steelers running back Jerome Bettis after a 2002 sexual assault accusation. The district attorney in Westmoreland County, Pa., said he found evidence of a scheme to entrap Bettis and extort money.
 
Stats in sex cases questionable
 
As victim-support groups point out, statistics on sexual assault are subject to question, because, they say, only about 16% of such cases are reported.
 
USA TODAY's research included newspaper and wire service databases and interviews with district attorneys, defense lawyers and court officials. The research covered the period from the rape conviction of former world heavyweight boxing champion Mike Tyson in February 1992 — the last time a sexual assault allegation against an athlete so dominated the sports world — to the present.
 
The 168 allegations all involved either current or former athletes at the pro level and in NCAA Division I football and basketball. Of them, 162 have been publicly resolved; the others are four pending cases, another with a sealed outcome and one in which the outcome could not be ascertained.
 
Bryant appeared in court Friday for a motions hearing regarding a 19-year-old woman's allegation he sexually assaulted her June 30 at a resort near Vail where she worked as a concierge. Bryant, who was in Colorado to have knee surgery, has publicly admitted having sex with the woman but says it was consensual.
 
Among the motions that have been filed by Bryant's lawyers is one seeking to admit evidence that his accuser had been prescribed an anti-psychotic drug and also made "purported suicide attempts" to get attention from an ex-boyfriend.
 
Bryant's lawyers also are challenging the constitutionality of Colorado's rape shield law, which limits what defense lawyers can use at trial about a rape victim's sexual history. Eagle County's chief detective in the case has testified that the panties the accuser wore to the hospital for her physical exam the day after her encounter with Bryant contained semen and sperm that weren't Bryant's.
 
Bryant's legal team also wants to prevent prosecutors from using at trial evidence police took from Bryant on July 2, including clothing and other items obtained during a physical exam of Bryant.
 
Bryant's attorneys sought, and failed to win, a dismissal of the charges in October.
 
Pressure to prosecute?
 

B. Todd Jones, the Minneapolis attorney who won baseball Hall of Famer Kirby Puckett an April acquittal on sexual assault charges, contends some district attorneys may be more inclined to file charges against a celebrity athlete because they fear that doing otherwise would make it appear they go easy on famous people.
 
"Before Puckett was charged," Jones says, "he went through a nasty and very public divorce. He already had a taint. That may have had some impact on the charging decision."
 
Alan Harris, who prosecuted the case for Hennepin County, said he "could not disagree more strongly." He said the decision was based strictly on the facts of the case developed by police investigators.
 
At Puckett's trial, Jones says, the player's standing or popularity with the Minnesota Twins probably helped.
 
"He had an outstanding playing career and was beloved in Minnesota and to a large extent still is," Jones says. "Sometimes if an athlete is beloved in their locale, some jurors are predisposed to give a benefit of the doubt. ... Our working assumption was that if someone wanted to be on that jury, they didn't want to put Kirby in jail."
 
Harris declined to comment on that.
 
Another advantage athletes, at least the pros, enjoy: Because of their financial resources, they can hire more experienced lawyers than do most defendants.
 
Bryant has hired Hal Haddon and Pamela Mackey, partners in the prestigious Denver law firm of Haddon, Morgan, Mueller, George, Mackey and Foreman, whose Crawford Hill Mansion offices include a swimming pool and basketball court.
 
Both Haddon and Mackey are veterans of high-profile cases.
 
Haddon represented John and Patsy Ramsey while they were under suspicion in the death of their daughter, JonBenet, in a case in which they never were charged with a crime.
 
Mackey represented Colorado Avalanche goalie Patrick Roy in a 2001 domestic violence case involving his wife. The case was dismissed by a judge who ruled it fell short of the state standard for the charge.
 
Star's word vs. unknown's
 
Prosecutors say a sexual assault trial becomes more difficult when a celebrity is involved.
 
Bryant, 25, is a five-time NBA All-Star whose popularity has led to multimillion-dollar endorsement deals and numerous television commercials. For athletes with superstar status and the wealth it brings, a plea bargain is unlikely, says Puckett's attorney, Jones.
 
"If an athlete pleads to anything, it could have ramifications on his ability to continue playing in his sport, and it could have ramifications with respect to civil lawsuits such as intentional infliction of emotional distress," Jones says. "You leave yourself open if you have deep pockets."
 
Unless there is compelling physical evidence, the trial often can become a case of a celebrity athlete's word against that of his unknown accuser.
 
"The nature of the crime is that it almost always takes place in private," says Camden County, N.J., first assistant prosecutor James P. Lynch, who reached a plea agreement on sexual assault charges against former World Boxing Association heavyweight champion Bruce Seldon in 1998. "Normally, there are no other eyewitnesses."
 
Because of that, says Lynch, such trials are "an adversarial proceeding that is not pleasant and is not geared to making a victim comfortable. ... These matters frequently come down to questions of credibility, and it can be difficult if one side already has a reputation."
 
Waukesha County, Wis., District Attorney Paul Bucher believes the reputation of former Green Bay Packers tight end Mark Chmura played a significant role in a 2001 trial that ended with Chmura's being acquitted of charges he sexually assaulted a 17-year-old girl at a party.
 
"First, the big question in the jury's mind is: 'What are we doing here?' " Bucher says. "Some people don't believe you should take a he said-she said case against a national superstar. There is a super presumption of innocence."
 
Bryant's case doesn't quite fit that mold. The Puckett and Chmura trials occurred in the areas where the athletes' on-field performances had made them sports heroes. Bryant's case is being heard about 750 miles from his home arena.
 
Under Colorado law, Bryant could go to prison for four years to life, even as a first offender with no criminal record. Probation could last a minimum of 20 years, and lifetime supervision would be possible. Either sentence would include a state-required management program that evaluates convicted sex offenders with lie detectors and the plethysmograph, a device that measures arousal patterns.
 
The defense attorney in the Chmura case points out that the intense public scrutiny and the possible repercussions facing a celebrated athlete can be very wearing.
 
"What happens to the fellow is incredible," says Gerald Boyle, whose 10-day defense of Chmura was broadcast on Court TV. "Every pundit in the nation has an opinion, and it's very, very unfair. ... The aftermath is excruciating. Even when an athlete is found innocent, there will always be an asterisk on his name."
 
Referring to one Internet poll last summer in which nearly half of 167,000 respondents said they thought Bryant was guilty, Boyle says, "How ... can anybody say that? We don't know the facts yet. It's a hellish problem."
 
'Acquaintance factor' key
 

Establishing the facts can be a problem for both sides in celebrity cases as well as those against ordinary defendants. Prosecutors say such cases become more difficult when there is an "acquaintance factor" — when the accuser and the accused knew each other before the alleged incident.
 
At an Oct. 9 pretrial hearing, the Eagle County chief detective in Bryant's case testified the accuser had greeted Bryant when he arrived at the hotel and agreed to give him a tour of the resort, after which she willingly entered his hotel room.
 
Ken Mauldin, district attorney for the Clarke County, Ga., area, which includes the University of Georgia campus in Athens, says the acquaintance factor weighs more heavily with juries in a sexual assault case than whether it involves an athlete.
 
Mauldin failed to gain a conviction in an acquaintance-rape case against a Georgia football player last year but says, "I don't think it mattered whatsoever to that jury that an athlete was involved."
 
Mauldin points out he was able to win a stranger-to-stranger rape case in June even though the victim initially refused to cooperate with investigators.
 
"I've run into people who say, 'Put me on that jury, and we'll convict him.' But when they get behind that jury bar, they're closer to the Constitution than they will be at any other time in their lives," Mauldin says. "In my 20 years I think almost all juries have done a good job of sticking to the facts."
 
Mary Keenan, the Boulder County, Colo., district attorney who reopened the JonBenet Ramsey murder case in 2002, says sexual assault victims often have their credibility challenged if they did not report the crime quickly or do not remember details exactly. Keenan contends they may delay because of the trauma they have suffered.
 
In acquaintance-rape cases, Keenan says, "You seldom hear the word 'rape' in the first 12 hours. People don't want to believe they've been raped."
 
Instead, Keenan says, "What you go through is self-blaming and self-guilt, because you know this person. It takes awhile for the mind to process that it wasn't your fault. That can take 12 hours, 24 hours or 48 hours before it sinks in. In the meantime a victim will make lots of statements, and you may lose physical evidence. Until they talk to somebody else, they don't figure out it's rape, and then the defense uses that against you."
 
In the Bryant case, Eagle County sheriff's detective Doug Winters has testified that he interviewed the accuser the day after the incident, at her parents' home.
 
Winters also testified that the accuser told him that after leaving Bryant's room, she returned to the hotel's front desk, finished her shift and went home. She told a co-worker that night what had happened, Winters said. The co-worker urged her to go to police and followed her home that night to make sure she was OK, he said.
 
Keenan says the credibility problem "absolutely" plays into defense efforts to establish reasonable doubt but adds, "We can work through that. When someone is honest, it shows. ... You sit down with the victim, and, if they do not have a motive to fabricate, a good prosecutor knows what they've got."
 
With that goal in mind, says Keenan, "I meet with the victim very early on and spend a lot of time emphasizing that telling the truth can't hurt them. I tell them, 'Tell me the worst thing an investigator could dig up in your past and use against you, and let's start with that.' Once they understand the only thing they have to do is tell the truth, it isn't that difficult."
 
The dynamics of the Bryant case, however, indicate a grueling ordeal is ahead for everyone involved.
 
Puckett's attorney says the effect of a celebrity presence in court can't be underestimated. "Media scrutiny is magnified by 1,000," says Jones, adding, "I don't like trying a case in a fishbowl. You had to run a media gantlet outside the courtroom every day for two weeks."
 
Looking ahead to Bryant's case in Colorado, Jones says, "It's going to be a circus. He's got some good lawyers. She and her family better be buckled up for a very tough ride."
 
Contributing: Tom Ankner, Tristan Coffelt, Ruth Fogle, Ray Hicks, Susan O'Brian, Jean Simpson, MaryJo Sylwester
 
 

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  Bryant's Lawyers Subpoena Accuser's Mom for Victim's Medical Records
     
 

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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  Crackdown on Alcohol Could Cost Air Force Cadet Her Career
      
 

By THE ASSOCIATED PRESS
http://www.nytimes.com/aponline/national/AP-Academy-Investigation.html

 
AIR FORCE ACADEMY, Colo. (AP) -- In a striking example of how discipline is changing at the Air Force Academy in the wake of its sexual assault scandal, a cadet may be expelled after turning herself in for taking a single sip of whiskey. New commanders, trying to erase the image of a school that ignored assault victims, have demanded that sophomore Christina Fifer, 19, reveal the name of the senior cadet who gave her the alcohol. They accused her of showing "misplaced loyalty" by refusing a direct order. "I'd rather leave with my integrity intact than stay without it," Fifer, of Inverness, Fla., said in an interview with The Associated Press.
 
Academy officials declined immediate comment on the case. The academy adopted a zero-tolerance policy on underage drinking after dozens of female cadets said they were reprimanded or ostracized when they reported being raped. The academy's top commanders were replaced and other strict rules were adopted. An Air Force investigation found that alcohol was involved in at least 40 percent of the assault cases. Under the new policy, any cadet 21 and older who provides alcohol to a minor faces dismissal.
 
A member of the ROTC at Cyprus High School in Inverness, Fifer said the Air Force has long been her career choice. She hoped to fly search-and-rescue planes, but now wonders if she will be kicked out of the military. In early September, Fifer was riding in a car with another cadet in and around the academy when she asked if she could have a sip of whiskey.
 
She said she reported the infraction three weeks later because of her belief in the school's honor code, which says cadets cannot lie, cheat or steal or tolerate others who do. She was restricted to school grounds for 60 days and forfeited some of her pay.
 
Fifer said her immediate superior told her she would not have to identify the other cadet, but Academy Superintendent Lt. Gen. John Rosa later issued a written order to Fifer.
 
Fifer's squadron commander, Lt. Col. Daniel C. Blaetter, wrote in a letter that she showed "misplaced loyalty and was in violation of her oath to obey the lawful orders of those appointed over her."
 
Cadets who admit drinking underage generally face punishment ranging from restriction to the base to loss of pay, said John Buckley, Fifer's attorney. He said his client could be expelled for refusing to obey a direct order. Fifer said she believes the possible punishment is overkill resulting from the scandal. "They laughed at me in the alcohol counseling program when I said I had just had one sip and spit it out," she said. "They require the best of us, but expect the worst." Buckley said commanders have tried to bully Fifer into talking, even interfering when she meets with attorneys. "They told me I would be out of here within a week," Fifer said.

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**News Feature**

 
     
  Making A Difference Conference Scholarship Applications Available Online  
     
  In October 2003, EVAW in the United States, and Carleton University in Canada, were awarded grants from the William H. Donner and the Donner Canadian Foundations to work with Sexual Assault Training and Investigations, Inc. (SATI) and Ed Renner, Evaluation Research, and the Founder of the National Action Plan Against Sexual Assault (NAPASA) to sponsor two national conferences, one within each country, to promote an integrated community response to sexual violence.
 
Conference Highlights
 
The Making a Difference conferences will redefine the central issues for responding to sexual violence, with particular emphasis on assaults that do not fit the stereotype of a stranger rape (e.g., assaults by a non-stranger, an offender who is otherwise not seen as criminally dangerous, does not use a weapon and does not cause extensive physical injury).
 
Participants will acquire a new frame of reference that will facilitate more effective collaboration between police, forensic examiners, victim advocates, and prosecutors. The outcome will be a unified strategy among the community-participants, in which their combined effort brings the team approach to new levels of effectiveness for:
 
Recognizing and effectively responding to typical sexual assaults
  • 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.

 
     
  DNA Challenges  
     
  An Indiana bill would expand the DNA database to include residential burglary and juveniles. Massachusetts will receive supplemental funding to implement its all felons DNA database and North Carolina has begun implementing its new all felons DNA database. A Florida bill would extend the statute of limitations for certain crimes if DNA evidence is available. An Oklahoma county is filing "John Doe" warrants for rape cases with DNA evidence.
 
"Ruse that yielded suspect's DNA is upheld." The Record (Bergen County, NJ) November 19, 2003. A ruse used by the Seattle Police that got a New Jersey man to lick an envelope and thus unwittingly provide his DNA for the investigation of a long-unsolved rape and killing has been upheld in court. A key
issue in the case is whether police may pose as lawyers to trick the subject of an investigation into tipping his hand. The judge ruled that because police can pay for sex with prostitutes, buy illegal drugs, or open a phony business to fence stolen property, "the mere fact that the police violated the law in posing as lawyers does not require dismissal." Nor did police violate mail laws because a detective was listed as a partner in the mock law firm and consented to the opening of the mail. Citizens may expect their letters to be private, but that expectation does not apply to envelopes in which the letters are mailed. The defense believes the police ruse violated the suspect's constitutional rights, and will appeal the ruling directly to the state Supreme Court.
 
"Judge: DNA found in Scott Peterson's boat admissible." The Associated Press, November 17, 2003. In California, the judge in the Laci Peterson murder case ruled that prosecutors can use a mitochondrial DNA analysis on a hair found in Scott Peterson's boat to try to prove that he killed his pregnant wife and then dumped her body in San Francisco Bay. Mitochondrial DNA has rarely been used as evidence in California court cases and it cannot provide a definitive match. Peterson's lawyers challenged the evidence as unreliable, arguing that the statistics used to determine the chances
of a genetic match are faulty. The ruing on Mitochondrial DNA was a victory for prosecutors, who are making a case based mostly on circumstantial evidence.
 
"Segregating" DNA key to agreement in lawsuit."
The Advocate (Baton Rouge, LA), December 5, 2003. Parties in a federal case that demand the immediate return of DNA taken from 1,200 innocent men during the hunt for the south Louisiana serial killer may reach an agreement soon on what will happen to the evidence. According to the terms of the agreement, still under negotiation - detailed in a brief filed in the case, Louisiana State Police would agree to segregate the samples in a secure area with limited access. The DNA profiles would not be maintained in any database and would never be used for
any purpose other than the south Louisiana serial killer investigation and trial.
Once there has been a conviction in the murders, attorneys say, those who were swabbed could request that their DNA evidence be returned or destroyed.
 
"Man cited for defying demand for DNA sample." - Courier Post (Cherry Hill, NJ) December 5, 2003. A New Jersey man who refused to submit DNA samples to the Department of Corrections has been issued a contempt of court citation. The man was scheduled to submit a DNA saliva sample to the
Camden County Probation Office as part of a new law requiring samples from people in prison or under the supervision of either a parole or probation officer.
 
"Man sues about suspension from job for nixing DNA swab." The Advocate (Baton Rouge, LA), December 4, 2003. In Louisiana, a Thibodaux man who was suspended from his job after refusing to submit a DNA swab to the serial killer task force is suing his company and the Louisiana State Police. The man filed suit in the 19th Judicial District Court in East Baton Rouge Parish, claiming a State Police Detective tried to "unlawfully terrorize and intimidate" him into providing a DNA sample in December 2002
 
"Uninsured city paying to fight lawsuit." Telegram & Gazette, December 2, 2003. In Massachusetts, the city of Marlboro has transferred $59,320 from its stabilization fund to fight a $10 million federal civil rights lawsuit after learning that the city does not have insurance to cover the legal costs. A
former resident filed the $10 million suit against the city and several current and former police officers this year when DNA tests exonerated him in a rape case, after he had completed a 10-year prison sentence. An insurance fund was paying a Boston law firm to represent the city until last month, when it was
determined that the city did not have the proper insurance for such a claim. Taxpayers will likely have to foot the bill for the lawsuit as well as any possible settlement or award.

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  DNA Funding
     
  "Orchid Cellmark Awarded FBI Contracts to Develop SNP Technology for Advanced Forensic Applications." PR Newswire, November 25, 2003. Orchid BioSciences announced that it's Orchid Cellmark unit was awarded two contracts from the FBI to develop new forensic tools that will increase the ability of investigators to identify individuals using DNA samples that have degraded and therefore contain a limited amount of genetic material. The work is expected to be completed in about one year.
 
Illinois' governor has pledged $3 million to reduce the state's DNA backlog. Colorado is asking for more state funding for DNA analysis. Louisiana crime labs are working on clearing DNA backlogs, with one lab already seeing a nearly 25% success rate in matching crimes to offenders. Tennessee's efforts (supported by federal funds) to reduce backlogs of rape kits has seen a disappointing response from local jurisdictions. A Kansas county is using federal funds to review old cases for possible DNA evidence. A medical examiner's office in Massachusetts is under fire for not sending forensic evidence for mitochondrial DNA testing in a timely manner.
 
"DNA taken after rapes sits untested." Chicago Tribune, December 7, 2003. A newly formed women's group is seeking private sector funds to process the DNA evidence taken from more than 1,000 Chicago-area rape victims that is currently sitting unanalyzed in police vaults. The backlog at the
Illinois State Police Crime Laboratory is so extreme that evidence cartons taken from sexual assault victims in 2000 are still sitting on shelves, untested. The Women's DNA Initiative hopes to raise $1 million from private citizens and corporations to have the DNA tests done at outside laboratories, rather than at
the overwhelmed police lab.
 
"Crime lab seeks new location." Chicago Tribune, December 1, 20093. In Illinois, the Northern Illinois Police Crime Laboratory is looking for a new home. With a staff of 13, the lab serves 900,000 residents in 37 communities, and handles about 6,600 cases annually at a cost of about $1 million. The lab will process about 150 rape kits and 200 DNA cases this year.
 
"Case laid out for boost in law sales tax." Springfield News-Leader (Springfield, MO), November 14, 2003. In Greene County, Missouri, voters may soon consider a new law-enforcement sales tax to fund county services. Among other expenses, additional revenue is needed for a local crime lab, according to the Greene County Prosecutor, which he considered a priority to deter "unacceptable" delays in forensic evidence processing. Those include up to eight-month waits for urine samples and gunshot residue tests and more than a year delay for rape kits and blood work, he said. By passing a new sales tax, the prosecutor estimated that the $38 million crime lab's first year operating expenses would cost the county about $400,000.
 
House of Representatives. Conference Report on the Omnibus Appropriations bill for FY 2004 includes several earmarks for forensic DNA programs including $100 million for the DNA Initiative ($55 million for casework backlogs, $5 million for offender backlogs, $30 million for crime lab capacity), $2.69 million increase for the FBI's nuclear DNA program, and $2.5 million for the FBI's mitochondrial DNA program.
 
House of Representatives. House passes Advancing Justice Through DNA Technology Act of 2003: H.R. 3214 by a 2/3 yea-and-nay vote 357 yeas to 67 nays. The senate returns in mid-late January. It is important that we call our Senators to become an original co-sponsor of S 1700, the Advancing Justice
Through DNA Technology Act.

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

     
   Exonerations/Innocence Project  
     
  "DNA Tests Clear Pennsylvania Capital Inmate After 21 Years." Los Angeles Times, December 10, 2003. Prosecutors in Media, Pennsylvania, have dismissed all charges against a man who spent 21 years on death row for a rape and murder that DNA tests show he did not commit. Nicholas J. Yarris
became the 10th death row inmate exonerated this year and the 112th overall - not all because of DNA tests - according to the Death Penalty Information Center in Washington.
It was the first DNA exoneration of a capital inmate in Pennsylvania. The DNA evidence has not matched anyone in Pennsylvania's database, and will be uploaded to the national index in the hopes of identifying the true perpetrator.
 
"Wrongly imprisoned man wins $5.3 million settlement." The Associated Press State & Local Wire, December 9, 2003. The city of Austin has agreed to pay $5.3 million to a Texas man who spent 12 years in prison for a rape and murder he did not commit. The man, now a Wisconsin resident, was released from prison in 2002, two years after he wrote to the Wisconsin Innocence Project for help. Through DNA evidence, he became the first person to be freed from prison through the work of the project. The Austin City Council voted to settle the suit, which had sought $70 million.
 
 
  DNA Hits  
     
  "Gloves Identify Burglar." Newcastle Herald (Australia), November 27, 2003. In Britain, gloves left behind at a house by a fingerprint-conscious burglar helped solve an offense. Police had preserved for DNA-testing, the plastic gloves they found after the break-in at the house on October 3, last year. DNA from the gloves matched a man on the DNA database, who has since pleaded guilty to the crime.
 
"Con Nabbed in '88 Rape." The Boston Herald, December 6, 2003. In Massachusetts, an out-of-state tip followed by a last minute DNA match allowed Essex prosecutors to crack a 14-year-old rape case, charging a convicted child molester with a heinous rape just two days before the statute of limitations was to run out. The 1988 attack nearly went unsolved, but forensic investigators were recently able to match a semen sample taken from the l7-year-old victim to a suspect whose DNA was on file in the state's database. The suspect's rap sheet also includes a 1990 cocaine trafficking conviction, and he served a five-year jail sentence in Maine for rape.
 
"Community on lookout for rapist." The Miami Herald, December 6, 2003. In Miami, Florida, DNA tests have linked the Nov. 28 rapes of two girls - ages 7 and 8-with three other rapes in the area. The same unidentified man is suspected in three other sexual assaults and an attempted attack.
 
"Suspect Claims Up To 30 Rapes." Dayton Daily News,
December 2, 2003. In Ohio, police are investigating uncorroborated statements by a rape suspect that he committed 20 to 30 sexual assaults in the past 13 years before DNA tests linked him to five rapes in the mid-1990's. Area detectives did not
know that the five rapes were linked until DNA testing was completed. After comparing notes on the five cases, detectives came up with a likely suspect whose DNA was later matched to the crimes.
 
"DNA match lets police make arrest in '02 rape." Arkansas Democrat-Gazette, November 27, 2003. In Arkansas, a DNA match led Texarkana police to charge a man in connection with the rape last year of an 84-year-old woman. The suspect is currently serving a prison sentence for burglary
convictions. Witnesses helped police develop the man as a suspect after the attack, but police did not have enough evidence to arrest him. Earlier this year, police obtained a warrant to obtain a DNA sample, and were subsequently notified by the Arkansas State Crime Laboratory that his DNA matched DNA
found at the crime scene.
 
"2nd man charged in girl's death." The Herald (Rock Hill, SC), November 18, 2003. In South Carolina, Rock Hill police have charged a second man with murder in the November 2001 death of a 12-year-old student found strangled and raped in her bed. The victim's father remains charged with
murder and criminal sexual conduct in the case, but so far the DNA evidence matches another man who has been linked to several criminal acts in the area.
The man lived less than two blocks away from the victim's home, and his DNA has also been linked to the rape of a 60-year-old woman. He
has also been linked to four home break-ins.
 
 

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  Promising Practices: From the Desk of the Training Director:  Evaluating and Measuring Law Enforcement Success by Joanne Archambault, Training Director, SATI, Inc.  
     
 

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 as
1:

  • 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.

 
  1 Crime in the United States, 1997 Uniform Crime Report, US Department of Justice, Federal Bureau of Investigation Release Date: Sunday, November 23, 1998.
 
2 “False Rape Allegations”, Archives of Sexual Behavior, 1994, Volume 23, No. 1. By Eugene J Kanin, PhD, Department of Sociology and Anthropology, Purdue University, Lafayette, Indiana
 
3 Clark and Lewis, 1977; Hursch, 1977; Katz and Mazur, 19789; Kanin , 1985: LaFree, 1989)
 
 

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