America’s Cold-Case Crisis

The following article was originally published in a condensed version on The Daily Beast on February 26, 2011.

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 thirty-year jail sentence.

Even more shocking was the news that Helena Lazaro received last fall. In August of 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 fourteen 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 earlier this month. In a completely irresponsible piece posted on Women’s eNews on February 9, Wendy Murphy dismissed the importance of the backlog by ignoring the facts about sexual assault.

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 ten 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.

So what is wrong with the opinions of the backlog naysayers? They start from the very moment after victimization, when most women sensibly call 911. Whether the assailant was known to the victim or not, it is essential for her physical well-being to submit to a medical exam. Yes, the wait in a hospital ER may be long and arduous, because for the overwhelming number of rape victims, the life-threatening danger has passed with the rapist’s departure, and they are triaged behind more critical medical injuries. She needs to be examined from head to toe, as well as internally, because sometimes the abrasions and lacerations–even when minor–that are occasioned by forcible sex are in places she is not able to observe. She has been exposed to the potential of venereal disease, HIV infection and the possibility of pregnancy, all of which make medical attention imperative.

Murphy goes on to call this essential evidence collection process one of “needless tests,” falsely describing medical professionals as “agents of the government” when they do this work. No victim is subjected to evidence collection without her informed consent. The doctors and nurses who do these exams all over the country–many of them trained specifically as forensic examiners–explain the purpose of the additional tests. Most intelligent witnesses understand their value and wisely agree to the procedures.

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.  That result cannot happen, though, without a proper forensic medical exam. These are totally false arguments advanced by Murphy, which suggest that the state has the awesome power to force a victim to put her feet in the stirrups and submit to medical probing–arguments that are as foolish and fear-mongering as they are false.

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.  This may be because they have had a prior sexual relationship, or have dated briefly, or have a professional connection (cases include dentists, doctors, teachers and just about every career connection imaginable), or hooked up at a party the night the crime occurred. 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.

A man who forces the most intimate sexual acts on a loved one–like Courtney–rarely has a problem compelling a stranger to submit to him. Many of the date rapists we prosecuted had multiple victims and got away with this serial conduct for a very long time, often because women were reluctant to report the crimes. And many of the acquaintance offenders who use drugs to render their victims unconscious repeat their acts over and over again–whether college students or health care professionals or the guys who hang out in clubs, waiting for vulnerable prey. Outsource your backlog and I promise you there will be crossover cases between the categories of offenders–stranger and acquaintance assailants.

There are other examples. Terrence 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 fifteen 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 twelve 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 thirteen 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 being released on March 8th by Dutton. Fairstein also serves as Vice Chair of the Joyful Heart Foundation’s Board of Directors.

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