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VOL. 129 | NO. 120 | Friday, June 20, 2014

Rape Kit Controversy Continues After Report

By Bill Dries

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This week’s report by former U.S. Attorney Veronica Coleman-Davis on the city’s backlog of more than 12,000 untested rape kits is unlikely to be the last word on the controversy.

“If you don’t hold anyone accountable, then anything that you do, it just kind of lacks credibility in my mind.”

–Meaghan Ybos

Coleman-Davis concluded that no one involved in the 30-year backlog “willfully or maliciously conspired to deny due process.”

Rather, her report said, there was a “general and collective failure to understand the importance of DNA testing as was reflected in common practices in place locally and nationwide.”

Three rape survivors are suing the city and county governments, Memphis Police Department, Shelby County Sheriff’s Office and District Attorney General’s office over the backlog.

The city is also being sued in a separate lawsuit by a Jane Doe rape victim over the backlog.

“If you don’t hold anyone accountable, then anything that you do, it just kind of lacks credibility in my mind,” said Meaghan Ybos, one of the women who filed the lawsuit that names city and county governments. “Anything they do going forward will still feel incomplete.”

She questions why Coleman-Davis didn’t interview former Memphis Police Director Larry Godwin and former District Attorney General Bill Gibbons, who are both named as defendants in the lawsuit, for the report. Ybos cited 2010 interviews by News Channel 3 in which Godwin denied there was a backlog.

“She interviewed so many other people looking at the criminal justice system in Memphis,” Ybos said. “There is just this big elephant in the room. We’re not really fully discussing the problem. The picture is not complete.”

City and county government attorneys have filed motions to dismiss both federal lawsuits pending before U.S. District Judge John Fowlkes, claiming the statute of limitations has run out on the allegations in the civil lawsuits and questioning whether the rape kits taken on some of the plaintiffs were part of the backlog.

The city has also argued in its filings that Memphis Police should not be required to test every rape kit, even though Memphis Mayor A C Wharton Jr. has said outside court that the city’s policy going forward is to test every rape kit even if the statute of limitations on charging someone has passed.

In responding to the motion to dismiss earlier this month, attorneys for Ybos, Madison Graves and Rachel Johnson, who filed the lawsuit using their names and have said they want to be identified, argue that police and other officials were fraudulently concealing that the rape kits were not being tested in thousands of cases. And they cited Godwin’s 2010 interviews as proof.

“The defendant attempts to argue that since the kits were finally tested, the plaintiffs’ rights were not violated,” reads the filing by attorneys Daniel O. Lofton and Paul Forrest Craig. “It is manifestly unjust to suggest that after 25 years of doing the wrong thing a defendant can remedy all damages by finally doing the right thing.”

Meanwhile, the attorneys for Ybos, Graves and Johnson filed a motion Wednesday seeking to strike part of the city’s motion to dismiss.

It’s the part of the filing in which attorneys for the city alleged that Graves’ rape kit was tested shortly after her rape.

“The appearance of these ‘non-facts’ in the record is highly prejudicial to plaintiffs, a subversion of the judicial process given the infancy of this litigation, and ultimately a red herring placed before the court in an attempt to lead it astray,” wrote Lofton.

The argument is that the city’s claims in the motion to dismiss are an effort to stop the discovery process where attorneys for the three women will get access to local government documents and can depose city and county leaders involved in decisions that determined procedures for handling rape kits.

“Defendant seeks to forego the development of facts and the welding of viable evidence under the federal rules in favor of conclusory assumptions that blockade the judicial process outright,” Lofton wrote.

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