DNA Cuts Both Ways to End Cases
When we in the writer’s trade set out to create an interesting story, the first thing we must create for our characters is jeopardy, a very bad thing that has happened, is happening, or will happen unless the hero can stop it.
If our story is realistic, a logical place to look for a credible threat is in the world of crime. That world offers the narrative advantage that the story can be told from the point of view of the victim, the law enforcement officer, the perpetrator, or the major players in a court case: prosecutor, defense lawyer, judge.
Sometimes our story is literally real, and we call the genre “true crime.” After working on and around real crimes for about 45 years, I find the “true crime” genre too challenging for many writers — myself included — -because it’s too difficult to make the stories credible.
Whether pure fiction, true crime, or a little of both, most of the stories have in common one of two ending points: apprehension or verdict. The perp is taken into custody or, sometimes, killed. The defendant is convicted or, sometimes, acquitted. The law enforcement officer or the judge moves a case file from pending to resolved.
The rare case that does not fit this paradigm can generate unending stories. Think, for example, of the murders attributed to Jack the Ripper. Those stories are many times told because the Ripper slayings were never solved. Jack was never apprehended or put on trial, so we can give him whatever backstory we wish and decide why he quit killing for ourselves. Who is going to differ with our choices?
Sometimes true crime stories can be influenced by writing about them. I commend to your attention the cover story in the August issue of The Atlantic, “An Epidemic of Disbelief.” Barbara Bradley Hagerty grabs us by the throat and never lets go as she walks us through her discoveries when investigating why only one in 50 rapes results in a criminal conviction.
As the title of her report gives away, the underlying problem is that police do not believe women who report being raped. As a result, cases fall away in every stage of an investigation, even when there is evidence that does not require belief — DNA.
Rape victims report the humiliating process of filling up the box known as the “rape kit,” with a trained professional — often a nurse — taking care of each vaginal and rectal swab and pubic hair combing. It’s unpleasant to read about, let alone experience, but the victim is assured that it’s necessary to take her rapist off the streets and protect his potential victims.
The opening scene of Hagerty’s story reminded me of how I got sucked into a crusade against family violence that took up most of the political oxygen in my judicial career. I was looking at a computer printout and wondering why over half of our assault cases were being dismissed. When I investigated, I stumbled into an ugly black hole where assaults by men upon women would fall never to reappear. I could not tolerate that.
Hagerty describes a prosecutor in Detroit who started wondering why he had so many cases fall apart when he issued a subpoena duces tecum (an order to come to court with evidence) to a law enforcement officer and the officer would appear as if served with a subpoena ad testificandum (an order to come to court prepared to offer testimony). In response to the prosecutor’s question, the officer would explain that he could not find the evidence.
The young prosecutor deserves to have his name mentioned. Robert Spada investigated and found the “evidence locker” was a run-down warehouse with enough broken windows that birds had the run, er, flight of the place.
The contents of the warehouse appeared to have no particular order, so the person who came to collect the evidence needed to be the same person who put it there (seldom the case) or there would be a very difficult hunt.
Spada noticed only one area stacked neatly, identical white cardboard boxes on steel shelving. Lots of them. Upon inquiry, his police escort identified the boxes as rape kits and assured Spada they had all been tested. Because Robert Spada peeked in a box anyway and discovered samples still under seal, a scandal blew across most of the country. Spada estimated he had discovered 10,000 untested rape kits.
He was pretty close for an eyeball estimate. There were 11,341. Spada reported the discovery to his boss, Kym Worthy. She went ballistic and did what we in the courthouse work group call “resorting to atomic weapons.” She called reporters.
The story published, other reporters got ideas from the Detroit story, and untested rape kits became the scandal du jour. Early on, the failure to test the rape kits was blamed on the cost of the process, circa $5,000. In some jurisdictions, rape victims were asked to pay for the testing of the rape kits. When that was made public, there was understandable outrage, but outrage did not get the rape kits tested.
Over time, as DNA testing got better it also got cheaper. It’s now under $1,000. But the habit of shuffling the rape kits off to storage was already formed.
When I stumbled into the wholesale dismissal of family violence cases, I started a jihad against woman-beating that pissed off many players within the system. However, this was the People’s Republic of Austin, and the voters protected me from retaliation. Instead of being removed, I got promoted.
The Ohio Attorney General had a similar experience when he started harassing local prosecutors about the problem of untested rape kits. The complaint was that he was telling local elected officials how they ought to do their business and he was advocating for a quite expensive project. One expenditure was to hire researchers from Case Western Reserve University to pull a random sample from 7,000 untested rape kits in Cleveland and try to identify policy issues.
Half of the rape “investigations” had been closed in a week; a quarter of them in one day. Three quarters of the cases were closed without interviewing the victim.
A newly elected Cuyahoga County prosecutor sent massive numbers of rape kits to be tested and created a task force to heat up the cold cases. Fifteen detectives were put together by recalling retired detectives. Six assistant county attorneys were assigned to the task force. And in a major gutsy move, two reporters from the Cleveland Plain Dealer were invited to sit in on the weekly meetings of the task force.
When the results returned from the rape kits, more than a third of the DNA profiles pinged on CODIS, the Combined DNA Index System maintained by the FBI.
This meant the rapist had a felony conviction or left a DNA sample at a crime scene. In the former case, the rapist would be known by name…just from testing the rape kit.
Some of the neglected rape kits were coming up on 20 years old, meaning the prosecution was about to be barred by the statute of limitations. It got my attention that the task force created a protocol for cases about to expire. When there were ten days left, a message in red ink went on the file: ALL HANDS ON DECK.
In round numbers, the Cuyahoga County cold case task force has indicted 750 rapists and convicted 400 of them so far. Detroit, where the untested rape kit scandal started, entered the chase later but has convicted 175 rapists.
Like me, the attorney general who shook up business as usual was not punished by the voters but rather rewarded. His name is Mike DeWine and he’s now governor of Ohio.
Hundreds of rape victims got their day in court after years of delay and thousands more will. Hundreds of rapists have been convicted and thousands more will be convicted.
End of story. Happy ending, right?
Wrong. Not the happy part — the ending part.
The Supreme Court has held that rape of an adult woman with no further injury cannot be punished with the death penalty. That’s a good thing, because the very DNA tests that convict sometimes exonerate.
According to The Innocence Project, 365 persons have been exonerated by DNA since the first one in 1989. Twenty of them did time on death row. Half of the DNA exonerations have led to the real perpetrators being convicted. The real perps were convicted of 25 murders, 14 rapes, and nine other violent crimes committed while an innocent person was doing undeserved time.
I suppose we could kill the rapists who have been convicted by DNA with some confidence they are guilty, if the Supreme Court would allow it. The innocent explanations for the presence of your semen in a rape kit are few.
Most life sentences admit the possibility of parole.
If there is no death penalty and no life without parole, many if not most of these convicted rapists are going to get out and register as sex offenders.
We can’t end the story at conviction because the question remains whether the convicted persons are going to be better when they get out than when they went in….or worse. The odds of improvement are expressed in recidivism rates, which will differ among 50 states and often among prisons within those states.
Should the odds of improvement come up short, there is still jeopardy. The problem for writers is one of character development because we know there is jeopardy, but we do not know to whom.
I told you true crime is harder to write than fiction.