article

02.25.11

America's Cold-Case Crisis

Testing old rape kits could put countless rapists in prison—and exonerate others who were wrongly convicted. Linda Fairstein on the tragedy of letting these truth-tellers collect dust.

Charles Courtney, Jr., was arrested in Franklin County, Indiana, in September 1996, for the knifepoint rape of his wife, Mary Jane, when she told him she wanted a divorce the night he returned from a trip on his job as a long-distance truck driver. Like defendants in many domestic-violence cases, Courtney was offered a plea to a lesser charge of sexual battery. As such, his two-year sentence was far lighter than it would have been had he raped a stranger—a sad truth about many rapists whose victims are partners or acquaintances. That conviction earned the government the right to put Courtney's genetic profile in the FBI's convicted-offender databank. He was released from prison on January 4, 1998.

Three months later, a 21-year-old woman named Amberly Lakes was kidnapped in a parking lot outside a grocery store in Fairfield, Ohio, and taken to a remote location where her unknown assailant raped her repeatedly at knifepoint. In 2001, Lakes' case was solved when the evidence preserved during her medical exam after the attack yielded DNA that matched Charles Courtney's profile. Even though her evidence kit had languished on a storage shelf for more than two years, when Ohio authorities finally moved to eliminate their backlog, the result was a conviction in the case and a 30-year jail sentence.

Even more shocking was the news that Helena Lazaro received last fall. In August 1996, stopped at a car wash in Pico Rivera, California, in the VW Rabbit she'd been given by her parents as her 17th birthday present, she was abducted at knifepoint and sexually assaulted multiple times before her attacker abandoned her. Like Amberly, she consented to the collection of evidence during her lengthy hospital exam. Though she had called the Los Angeles Sheriff's Office many times in the 14 years that elapsed, it wasn't until 2010 that she learned her kit was among those tested in a backlog sweep in 2003, at which time it also matched to Charles Courtney—although Helena was never told of that result until she pressed for information six months ago. Here was a criminal viewed only as a danger to his wife, who was in fact a serial stranger rapist, with who knew how many other unsolved cases possibly linked to him from evidence shelved in warehouses along his cross-country truck route.

The backlog of untested rape evidence collection kits in cities across America—estimated by the Department of Justice to number more than 200,000—continues to be a national disgrace. Debates continue about how to resolve the problem and whether to devote resources to testing kits stored in police property warehouses for years, but one critic of the movement echoed some of the most common misunderstandings about this issue this month. In a completely irresponsible piece posted on Womens enews on February 9, Wendy Murphy dismissed the importance of the backlog by ignoring the facts about sexual assault.

It is stunning to see how science can take the onus off the witness and ultimately ease her progression through the criminal justice system.

For 26 years, from 1972 until 2002, I was the prosecutor in charge of the country's pioneering Sex Crimes Unit in the Manhattan District Attorney's Office. I was among the first lawyers to be introduced to the revolutionary science of DNA in 1986, three years before it was accepted as a valid technique by our courts. When the first databank became operational in 1994, my colleagues and I watched with amazement as computers began to solve cases, matching offenders' genetic profiles to evidence gathered during a sexual-assault investigation—cases in which the crime scene is the victim's body. By the late 1990s, the law-enforcement community knew that rape kits, which were previously only tested if specific suspects were identified by the police for comparison, were mounting by the thousands. In 1999, under the leadership of New York City's mayor, Rudolph Giuliani, and Police Commissioner Howard Safir, the radical decision was made to outsource close to 17,000 kits to private labs, at enormous government expense, in order to attempt to obtain results that might offer justice to victims of these heinous crimes, and make offenders—often recidivists—accountable.

The two brilliant prosecutors who run the Cold Case Forensic Science Unit established last year by Manhattan's new district attorney, Cyrus Vance, Jr., know more about DNA and its forensic applications than any lawyers in the country. Martha Bashford and Melissa Mourges were appointed to oversee the backlog project in 2000, as the outsourced cases made their way to three labs and results began to come back in. Their success has been remarkable. If you set aside cases that were eliminated for reasons like being beyond the statutes of limitations (formerly 10 years in New York State, though outrage over the backlog results eliminated it completely in 2006), Bashford and Mourges say they've indicted 38 percent of the viable cases returned, and in the convictions obtained have seen sentences total in hundreds of years.

For me, having started work in this field long before DNA was validated, it is stunning to see how science can take the onus off the witness and ultimately ease her progression through the criminal justice system.

Are more women raped by acquaintances than by strangers? There is no question that in greater than 75 percent of reported rapes the victim knows her attacker. And at many of these trials, the issue is not the identity of the man accused anyway, but whether or not the sex act was consensual. Again the naysayers are dead wrong, because even in these cases DNA can be a powerful prosecutorial tool. Frequently, the defendant's claim will be that the witness is "crying rape" and that his ex-girlfriend just had him arrested because he broke up with her. The finding of his DNA on her vaginal swabs makes him a liar from the outset, and forces him to change his story in front of a jury, now admitting there was sex but claiming it was consensual. This midstream change in story alone can convince a jury to convict, and if not, DNA found in the victim's anus, along with rectal tears, may seal the deal.

The bigger myth spread by the anti-backloggers is that men who rape women they know couldn't possibly be serial rapists, so why waste time and money testing kits in cases of marital and date rape? Charles Courtney, the man who was convicted of raping his wife and then abducting two young women at knifepoint, thousands of miles apart, is the poster boy for disproving that argument.

There are other examples. Terrance Reid was awaiting sentence by a Manhattan judge on his first conviction not long ago. His lawyer's appeal to the court for the minimum sentence was based on the notion that this case was an aberration in the defendant's otherwise exemplary life. Several days before the sentence, Bashford and Mourges received news from the backlog testing lab, showing that Reid's profile hit to five other rapes in that county and two more in Queens—seven brutal crimes to which only a computer had connected him, and all occurring before the statute of limitations ran out. Although he could not have been punished for those, the judge was able to take his aggravated criminal history into account and sentence him to the maximum, relying on the very background he had asked the court to consider.

And yet another: A middle-aged woman who worked in a pattern-cutting business was the last to leave her office one evening. While waiting for the elevator, she was accosted by an armed assailant who raped her on the floor before tying her to a chair, cutting her leg as he ripped phone cords with his knife. She was never able to identify her attacker, but Bashford and Mourges got the cold hit from the backlog project lab exactly three weeks before this career criminal was to be released from jail on an unrelated case. Sadly, when they located the home of the woman who had been victimized years earlier, they learned from her family that she had died of heart disease. Undeterred, the case pressed forward and was prosecuted by this great team. When they showed the prisoner her photograph, he claimed to have never seen her before. But even with no victim, there was proof of force (because she had been found tied up) and DNA identification courtesy of a backlogged evidence kit. And by the way, at the trial? Just like in other cases, the rapist's defense changed from "I've never seen her before" to "the sex was consensual" when the perpetrator found out there was DNA evidence. The jury rejected his nonsense, just as they do in more and more rape cases in which consent is initially claimed. The naysayers wouldn't bother to test a kit in which the victim wasn't alive, which would be another grave mistake.

Finally, there is one critical word missing from the arguments of those who don't see the need to clear the hundreds of thousands of backlogged kits: exoneration. Close to 4,000 of the city's 17,000 evidence kits were Manhattan cases. In one result, the profile developed was a case that had already gone to trial more than a decade earlier. At the time of the crime, the victim had been a 15 year old girl. The man she saw on the street and identified, a month after the attack, was convicted by a jury. The jurors obviously believed the smart witness, and may have been influenced by the fact that the defendant had a criminal record. He was 12 years into his sentence when this evidence was tested, something many jurisdictions would not have bothered to do because this was a closed case. The victim, now working in law enforcement, took one look at the real perp's photograph 13 years later and burst into tears. Bashford and Mourges got the news of this potential exoneration on a Wednesday afternoon, had the evidence retested immediately, and walked the innocent man out of prison, still in his orange jumpsuit, on Monday morning. The lesson? Every sizable backlog will yield at least one exoneration. That's reason enough to test them all.

This backlog issue must be resolved. The facts cry out for the need to fund outsourcing not only to solve crimes, but also to save lives. Opponents of testing simply haven't bothered to learn the facts nor to study the results of successful backlog projects, and the people most hurt by such misguided voices are the hundreds of thousands of rape victims themselves. There are few among them who haven't said, when detectives knock on their doors with astounding news of the DNA match, that they thought they were the only person alive who remembered their case.

Linda Fairstein is a bestselling crime novelist and the former chief prosecutor of the New York County District Attorney's Sex Crimes Unit. Her new novel, Silent Mercy, is in stores next week.