They say to write about what you know and Linda Fairstein, the former New York County District Attorney Special Victims Unit Chief Prosecutor certainly knows the subjects that she fills her pages with. In this part of our interview, continued from our post on Friday, Fairstein talks to me about the evolution of the rape kit, what it was like to be prosecuting cases as the science around DNA was beginning to take hold and her thoughts on the backlog of untested rape kits.
Sarah Tofte: So, I know that rape kits were around slightly before DNA testing became available.
Linda Fairstein: Yes.
ST: Could you talk a little bit about this? One thing I find very interesting in general about the backlog, which I’ll get to, is the amount of care that has gone into evolving the rape kits so that they keep up with technology, what we’re learning from the criminal justice system and what we need from it. Sometimes there’s a bit of a disconnect between how much care has gone into creating a process of integrity and quality of evidence, efficiency in collection and compassion and care for the victim and what happens after–for it to just then sit in a storage facility after all this effort and energy went into it…
ST: I’d love to hear a little bit about what rape kits looked like in the mid-to-late seventies when you were starting out, before there was DNA to be tested and a little bit about how rape kit evidence and the collection evolved. What did it look like to collect sexual assault evidence from a victim?
LF: I would say that the worst thing about scientific evidence when I started in the seventies was the terrible unevenness across the country with which victims were met in hospital emergency rooms until very recently. Of course some of that still persists.
So there was no such thing as a rape evidence collection kit. I believe the first one started in the early seventies and not as a result of the criminal justice system deciding to do it. The kits were called Vitullo kits. Louis Vitullo was, I believe, a sergeant in the Chicago Police Department. He despaired, as did many detectives–good ones from around the country–of the fact that if a victim was examined in an emergency room, there were no protocols for how to do it as there are now. There were no SAFEs [Sexual Assault Forensic Examiners] and SANEs [Sexual Assault Nurse Examiner; both these terms refer to the specially-trained personnel who attend to the unique medical needs and evidence collection of sexual assault victims]. You would get an ER doctor, some some who had never performed a GYN exam other than on a med school rotation. Whether or not anybody thought to collect evidence just depended on who was on call.
Sometimes there would be an examination and a scraping of the vaginal wall and slides prepared with semen on them for the purpose of blood group typing. The general procedure was that one of those slides would stay in a hospital laboratory and the other would ideally go with the police officer to a police laboratory. But there was no mechanism for getting them there. So Vitullo, to my understanding, went home and got his wife’s cardboard shoeboxes every time she went shoe shopping. He made a point to put the slides inside, tape it up for chain of custody, sign them, date them and get them back to the police lab. As I say, uneven all over the country.
So I remember in the early seventies, the first kits were introduced in New York hospitals. They were, you know, the size of the kit that you work with today–four or six inches by eight inches long, but very slim. We really all learned over time and they kept evolving, and somebody early on had the good idea to say we want an envelope for fingernail scrapings. What if she scratched him and there’s skin or something of evidentiary value under her nails? We wanted an envelope for pubic hair combings because there might be his body fluid in those. All without DNA plans. I mean, we would just think of anything. Soil, dirt, fiber, in a case that she had been abducted, the seat of a car or anything as you would in a homicide that might be of potential value.
The kits changed with time, which was a good thing as different things happen. For example, when we had the terrible AIDS epidemic of the 1980s in New York, we realized we needed vials to collect blood to do testing for HIV infection to do a baseline test, which the victim would follow up on later. When we began to see drug-facilitated date rapes–it had always happened with different drugs, alcohol and sleeping pills before the advent of designer drugs when it became much more frequent–there were instructions and vials added for how to test and screen for toxicology. Then, in the late eighties after the introduction of DNA, most people really began to understand that science could solve some of these cases. It could certainly connect to one individual out of billions on earth and could just as importantly exonerate somebody who might be wrongly identified. So again, as those kits morphed, changed, absorbed more information, the instructions for how to do an exam improved, changed. I mean, Joyful Heart has been enormously helpful in the last two years in getting these kits introduced in hospitals, first designed to be around New York State. Obviously that information, the training film that Mariska did–is used around the world.
My heart breaks for the victim who gets taken to a hospital in some place where there has been no attention to this issue. There are a lot of those places in the United States, sadly. Even all big cities do it unevenly. But there’s no excuse in 2011 for a hospital not to be able to get the evidence from a victim’s body, which is the crime scene–the only crime where the body really is the crime scene–and to get that to the police laboratory that’s going try and connect an offender to the case.
ST: So do you remember the first case that you solved with DNA?
LF: I do. It was a homicide and, despite a very lengthy hearing–almost three weeks–to explain the use of DNA and the science of how it connected the murder weapon to the victim and the offender, the judge ruled against us, said it was too experimental, not valid and reliable, that this stuff was never going to fly in legal terms. The jury never heard the evidence. That was 1988 when we were still able to use it as often as we could to exonerate people who were wrongfully convicted.
That case was one of many going on around the country where hearings had to be held about the validity of the scientific evidence. People were thoroughly mystified for the most part by the science of DNA and how it could possibly connect. In 1989, in a Bronx County case, the first DNA test that was admissible was admitted in a Bronx rape case. Then there was a case of homicide on Long Island. That began to blow things open for us in the best sense and we moved forward.
ST: In those years when you were starting to use DNA in more criminal cases, before New York discovered its backlog, what did that do? You talked a bit about how it took some weight off the victim in some cases for providing all of the evidence—why don’t you talk a little bit about how your cases started to change and how you were able to resolve your cases differently as you were starting to rely more on DNA?
LF: Again, for those fans of Mariska and crime novels, I’m smiling because it was so very different then. The results you could get in 24 hours now took six months in 1986 and the first few years afterwards. There was not a DNA lab then, there was a biology lab, but not a quick way to process DNA, except for Quantico at the FBI. So we would send a sample, potentially to Quantico, which was getting requests from all over the country. So they could only do a handful of them. To get a preliminary result took six months. So, you had to build your case without it. At the end of six months, in the rare number of cases, you might get the wrong guy,and you let him go. Or you’ve got the incredible phone call from a scientist telling you that everything your witness said can be confirmed with science: that there’s only one person out of four hundred million who could have this sequencing of DNA.
So we all had to learn the science–I mean how it was done was very important. The forensic biologists were amazing in the time they spent educating lawyers about it. For the first many years we all had to use private labs because there just weren’t city and state labs. So the expense then was enormous. My recollection is that in the eighties, if the FBI didn’t do your test, you were talking about at least $5,000 per sample. So if you had the victim and you had wanted to eliminate her boyfriend and you had maybe three suspects, you could be talking about $25,000 dollars. Then, there’s how, in the criminal justice system, you are making decisions about prioritization. This is an ugly thought, but it was all so gradual. I mean we were grateful for what we had in 1989, but by 1994 there finally was a databank. So things happened that you could never have predicted. I just didn’t have the vision to see how this was going to change the system but it has revolutionized it in absolutely every way.
ST: As a prosecutor, you may not have been the first responder, or the one to open up the rape kit, but you would be in communication with a lab and know what condition the rape kit was in. Could you tell the difference between someone who collected the rape kit from the victim who only had a general sense of medical care but didn’t understand evidence collection versus someone who was given at least rudimentary training on evidence collection? What would the difference in those two kits look like from an evidentiary point?
LF: Oh, that’s a great question. For example, I remember to this day a case where a victim was taken to Bellevue [Hospital] in the middle of the night and the person on call was a neurosurgeon. And he had never examined the vaginal wall, and there were nurses–not SAFEs–but nurses who had done this many times who tried to talk him through it. There is, as you know, an instruction sheet to the steps inside the kit. I mean, ideally a plumber could open that kit and do the steps. That particular doctor just wasn’t interested in doing it and just he did slides. He left all the ot her manila envelopes that might have had potential value. I remembered that kind of circumstances versus the times when I would go up to the lab and work with our friends, Dr. [Mecki] Prinz, bringing samples from the [New York Office of the Chief Medical Examiner] OCME now, and that magic of opening the kit so you could examine it with pretrial, and having them show me that everything had been done meticulously and every step had been followed.
At some point in the late eighties, maybe, we began to see forensic examiners, SAFEs and SANEs. SAFEs understood how important this issue was in giving care to a patient. The original response I used to get going to hospitals to train was, “we’re here to save lives. We’re here for the victim’s physical well-being. We’re not an evidence collection department.” And we’d say, “this is her well-being, this is the only shot at her well-being.” So detectives would sometimes fight with doctors to do those steps.
By the mid to late eighties it was getting better and everybody was introduced to DNA. You might say that some in pockets of places came to it much later than others, but people got it. Kits were revised, kits were expanded, manuals were created to help with training. I didn’t forgive incompetence in the early days, but I understood why people not trained couldn’t do it. I hated that they wouldn’t open the box and read the instructions and use all the envelopes.
Now, there’s just no excuse at all. I mean nobody in even those days, in the seventies and early eighties, had an hour of a course about the sexual assault victim in four years of medical school. By the late eighties, Columbia University of New York, Cornell University [Medical School]–right down the street from where we are today–would begin to include some of us as guest lecturers, just for an hour. Many obviously have gone beyond that now. And with ER medicine a specialty in most places, it’s very much a part of the ER training, because you see so much of it.
ST: So things are moving forward on the DNA front, but 1999—or maybe a bit earlier–you learned that there was a big backlog of untested rape kits in New York City. Can you talk a little bit about how you found out about it? I’m sure you already had intuition or thought or knew that not every kit was getting tested, and 1999 was still very different than 2011.
ST: I want to talk about that at some point too–the difference in New York having a backlog in 1999 versus LA having one in 2009. But, first, how did it come to your attention that you had a significant backlog that was as big as it was and what did you do about it?
LF: Okay, we knew from the time that the first small databanks went up in 1994. In 1996 that there was a way to have a computer attempt to compare untested evidence to known offenders, or other crime scenes. The problem was, like everything, a resource problem. The police department at that time in New York was acting with very little until databanks came along. They would only test kits when there was a defendant arrested and you had a suspect against whom to test “match” or “doesn’t match.” So we–my colleagues and I at the DA’s office–were all pretty much aware by the late ‘90s that kits were being collected every week and were kind of stacking up if there wasn’t a suspect. Citywide, it became a problem. The mayor’s problem. Rudy Giuliani’ criminal justice people realized it. I mean, everybody was on the same page at the same moment in New York, which doesn’t usually happen. Howard Safir was the Police Commissioner and there was a genuine care about this issue. The count became somewhere between 16,000 and 17,000 of these kits. And everybody was committed to taking them on, and taking them all on–not prioritizing stranger victims over acquaintance, recognizing that some acquaintance attackers also attacked strangers. I mean they may rape their wife, but they also may be going out on the street, foolish to think anything else of it.
So the decision was made–at great expense to the city–to round up these 16,000 plus kits, and outsource them because our lab couldn’t; no lab could do it. That it would take several years. Three labs were selected by their credentials and board certification. These kits over a period of four or five years were outsourced to the three labs to come back with hits.
ST: What did you learn? You know the big debate right now among those of us who are working to solve the rape kit backlog: the big debate is, do you test all kits, or you just test the stranger rape kits? What’s the value of testing non-stranger rape kits? One thing that I found so compelling when I talked to Martha and Melissa was the number of cases that end up being resolved or solved, that they weren’t expecting to resolve or solve, either at all or in the direction that they went. Would you talk a little bit about these hits that were coming back? What did you learn? Even as an expert in sexual violence and an expert in how perpetrators work, what did you learn about the nature of sexual violence, but also the value of testing as many kits as you can?
LF: Sure. Even though I left the DA’s office in 2002, I stay very closely connected with the DAs working with the kits, Martha Bashford and Melissa Mourges, who I think know more about this than any two lawyers on the planet. They began to call me as the hits came back, and you know, first of all it was just… there were a lot of surprises. There were cold hits, which continue to be made today in 2011, connecting cases to people only now being arrested somewhere else for a crime eligible to go in the computer. So that’s still thrilling. They recently solved the case of a 16-year-old girl whose attacker was only now arrested in Virginia for drugs. Imagine knocking on her door, calling her and saying, “I’m sure you still think about this every day of your life, and we’ve got him now,” which is one of the most thrilling parts to be able to give to another human being.
The concept that some people have that if you’re doing acquaintance rapes, you’re not going to learn anything about stranger rapes is just a fallacy. In acquaintance rape cases, not only is, “yes [there was] consent” often the defense, but sometimes the defense is, “I don’t know what she’s talking about, I didn’t have sex with her.” So just getting DNA in a case like that makes him a liar and resolves this.
New York had one exoneration that I know of. So, for example the LA County Sheriff’s Office decided not to test kits in cases in which there was, in some other way, a conviction. Well, Martha and Melissa set a man free who had been wrongly convicted. There was such a range of value to doing this that you couldn’t even go in and try and parse out from what you think is your experience and say “we’re just going to do it for these victims.” It’s just wrong.
ST: It seems like every week we hear about a new jurisdiction that has a backlog. As they are discovering their backlogs and trying to wrestle with is this worth the resources, what does the New York model show them? You know, for these jurisdictions that are trying to figure out right now, is it worth it for us to get rid of this backlog? What would you say to them based on your own experience?
LF:You know, I think of the examples in the NYPD and the LAPD–the idea of solving any number of cases is bringing justice to those victims who have been denied it all these years. It’s taking potentially a bad guy off the street. The chance to exonerate just one person is huge. It’s a lot of money and a lot of resources, but I just think it has to be done.
Linda Fairstein’s new novel, SILENT MERCY, is being released tomorrow, March 8th, by Dutton. Check back then for the third installment of our interview. In addition to being an author, advocate and former Chief Prosecutor of the New York County Special Victims Unit, Fairstein also serves as Vice Chair of the Joyful Heart Foundation’s Board of Directors.