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VOL. 7 | NO. 13 | Saturday, March 22, 2014

Backlog Backlash

City Hall’s response to untested rape kits sparks resentment, questions

By Bill Dries

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The first thing Veronica Coleman-Davis wanted to do was take a look at where thousands of untested rape kits had been stored over the last 30 years.

A backlog of untested rape kits has citizens seeking action.

(Memphis News/Andrew J. Breig)

The former U.S. attorney is investigating how the backlog came to be. It’s an effort that, until her appointment in February by Memphis Mayor A C Wharton Jr., had been pointed at clearing the backlog with no answers from any of the players in the criminal justice system about how the backlog happened in the first place.

Her report to come is part of the tip of a political iceberg that is a still-unfolding examination and questioning of the local criminal justice system – how its many parts do things and why they do them that way.

Also bobbing just above the surface of the roiling waters is a federal lawsuit alleging the city didn’t test the rape kits because police give a low priority to rape allegations and the crime of rape.

Wharton estimates clearing the backlog will take five years and nearly $6 million.

The Memphis City Council approved $1 million in funding in March to keep the processing moving. It came from a fund of long-held federal money given to the city that was to be used to build Interstate 40 through Overton Park, a project scrapped by the federal government at about the time that Memphis Police stopped processing the rape kits.

From the outset last November council members have repeatedly asked Memphis Police Director Toney Armstrong how the backlog could have built up. And from the outset, Armstrong has said it happened before he became police director and that he doesn’t know.

Wharton has walked a similar fine line with much of the February announcement focused on what is happening with the backlog going forward.

“Sometimes those of us within the system, we are so close to it,” said Wharton, who is a former Shelby County public defender.

Coleman-Davis began with a rough idea but some gaps in the process.

Joyful Heart Foundation, a nonprofit with a national reputation for its work on rape kit backlogs in other cities, is working with the city to clear the backlog in Memphis.

(Memphis News/Andrew J. Breig)

“The victim calls and the police go out and they do the crime scene … then they go back and prepare the files. … They may or may not send it to the DA’s office,” she said. “That’s the other thing. I have no way of knowing what that line or trajectory looks like. The kit has been placed in storage somewhere waiting for someone to be indicted or someone to investigate further, which is what they have to do.”

Police Deputy Chief Jim Harvey said last year he found police had a policy of not sending rape kits for testing if the victim and suspect knew each other. Police apparently never acknowledged the value of a DNA sample in determining if the same suspect might have attacked others, which would make less credible a suspect’s claim that it was consensual sex.

Watching Wharton’s reaction at the February City Hall press conference was Meaghan Ybos.

Ybos has become the face of the outrage over the backlog. She’s also where the noticeable differences begin outside officialdom in the reaction to the backlog and the many questions it raises about criminal justice in Shelby County.

As a teenager, Ybos was raped in 2003 by the man police identified nine years later as Anthony Alliano, the Cordova rapist who later pleaded guilty to multiple counts of rape and is now trying to take back the guilty plea. Until publicity from later rapes in the area in 2012, Ybos assumed her rape kit had been processed but that there were no results to work with or no match. When police began to say the later rapes were connected, she contacted prosecutors and police to tell them the rapist had to be the same man who attacked her and probably others over a longer period of time.

That’s when investigators told her that they would process her kit. They did. It matched Alliano’s DNA. In Ybos’ case, she didn’t know Alliano. Her attacker wore a mask.

Ybos’ reaction to the investigation is diplomatic.

“I’m happy that the city is investigating itself. But I think we also have other things to look forward to as the facts hopefully come to light,” she said. “But I don’t think we can stop there.”

WHARTON

Wharton said Coleman-Davis has “free reign to look everywhere” and added the city’s initial focus is “victim centered.”

“As we pursue that inquiry, if I find culpability somewhere, it will be dealt with,” he added. “But I’m not going into this in terms of I’ve got to find a bad person here. Let’s face it, we had a systemic failure here. Let’s deal with that first.”

Ybos’ diplomacy melted somewhat outside the confines of City Hall the day before Wharton’s announcement. It happened during a broader dialogue at the Mid-South Peace and Justice Center’s “One Billion Rising” effort on the issue of rape beyond the rape kit backlog as part of a larger discussion about violence against women.

“We all risked our lives by doing what the system told us to do,” Ybos said of rape survivors who called the police after their assaults and had DNA samples taken from their bodies and put in the rape kits. “Certainly there was a lack of understanding. … It was not made a priority.”

County Community Services Director Dottie Jones defended the work of the sexual assault resource center, which is a county government agency, and noted the backlogs in other cities.

YBOS

“We have so far to go before we can boast on our law enforcement,” Ybos replied.

Jones said she wasn’t boasting.

“I didn’t say that,” Jones countered. “It is what it is. I won’t make a value judgment about it. … I said they are moving in a direction where they are starting to understand.”

Sarah Tofte of the Joyful Heart Foundation announced the nonprofit with a national reputation for its work on rape kit backlogs in other cities is working with the city to clear the backlog in Memphis.

“I have never seen a city respond in such an aggressive manner to the problem,” she said. “Cities and states around this country have backlogs. There’s a city out there somewhere that has a backlog much larger than Memphis.”

And Tofte said the foundation hasn’t always been welcomed, at least initially, in those other cities with backlogs.

“The only difference between what Memphis is facing right now and what’s going on in other cities is the fact that Memphis has the knowledge that it has a backlog,” Tofte said. “And rather than pushing the issue under the rug or hiding it behind a closed door, it has decided to be open and honest and transparent about the significance of the problem.”

But the federal lawsuit filed in December over the backlog alleges that hasn’t always been the case and tests the concept that the city, as an entity, didn’t realize what was happening.

The lawsuit has sharpened its focus since it was filed Dec. 20. The Feb. 20 amended complaint adds that police brass also are guilty of “expressly denying, when asked, that the sexual assault evidence kits had not been tested.”

The amended complaint also specifically names former Police Director Larry Godwin for “expressly and publicly” denying there was a backlog. When the city “knew this statement was false and it was meant to mislead the plaintiff and the class members.”

In November 2013, according to the complaint, Jane Doe’s rape kit was tested 12 years after it was taken. And its results were a match to an unnamed individual’s DNA. That was the same month that Armstrong went to council members and told them there were 12,000 untested rape kits. It was a number that Armstrong told council members did not represent an increase in his previous estimate. But police later conceded it was an increase.

The lawsuit’s amended complaint also holds City Hall responsible because it “tolerated an ongoing institutional practice and ratified the misconduct of the Memphis Police Department.”

“The city’s executive determination and its pattern and practice of deliberately and routinely failing to submit sexual assault evidence kits for genetic testing is arbitrary, irrational, tainted by an improper motive, and is so egregious that it is conscience shocking in a constitutional sense.”

The lawsuit alleges victims have a constitutional right to have their rape kits tested and to be told that they have the option of paying to have a lab process the rape kits.

And outside the court proceedings Wharton has said every rape kit should be tested and any DNA results cataloged for use in that case and future cases.

Tofte agrees on the importance of processing every rape kit.

“Memphis knows and has demonstrated that once you know of a problem, you have to speak out about it. And once you speak out about it, you have to take action,” she said. “And that action has to include not just testing every rape kit, but it must include a commitment to investigate every lead you get from those tests, moving as many cases forward as possible through the criminal justice system and re-engaging the survivors and making sure they have the support they need throughout this whole process.”

Attorneys for the city, in a March 6 move to dismiss the lawsuit, claimed Jane Doe’s case has no factual basis because, according to the city, her rape kit was tested by the Tennessee Bureau of Investigation in 2001 and no DNA match was found for a suspect until 2012.

In a supplemental memorandum in support of the motion, the city also argues “There are so many plausible explanations for the city not investigating or submitting certain (sexual assault kits) for testing, including but not limited to, the turnaround rate for testing at the Tennessee Bureau of Investigation’s labs, the victims’ knowledge of their attackers’ identities, the state’s discretionary decision not to prosecute certain cases, the victims’ refusal to cooperate with prosecutions/and or investigations, lack of funding for large-scale testing etc.”

In her lawsuit, Jane Doe is seeking a preliminary injunction that would require the city to do just that. In the legal wording, the request for an injunction is to restrain the city “from continuing its policy and/or custom of failing to submit for testing (sexual assault kits).”

But the city’s attorneys argued in the memorandum, “Plaintiff is not entitled to injunctive relief because she was not entitled to have her (sexual assault kit) tested and she fails to show immediate and irreparable harm will occur without such relief.”

The city calls that a “conclusory” claim that is “insufficient to establish a special duty of care owed to Doe, which would not be owed to the general public.”

The memorandum adds, “Moreover, a court will not hold that such a duty exists simply where, as here, an officer or entity is dealing with only a small group of people (e.g. female sexual assault victims).”

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