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NM’s stunning ‘rape kit’ backlog

Copyright © 2015 Albuquerque Journal

Spurred on by complaints from victim advocates about a growing backlog in testing sex assault evidence kits in New Mexico, the state Department of Public Safety surveyed police agencies earlier this year in an effort to find out just how serious the problem is.

The results stunned them.

At least 5,341 sexual assault kits – some dating back to the 1980s – are sitting in police department evidence rooms still untested for a criminal suspect’s DNA. And that doesn’t include results from several dozen departments that haven’t responded.

The Albuquerque Police Department had 3,476 sexual assault kits listed as untested based on computer database searches, but no one has gone in and looked at the evidence envelopes on a case-by-case basis.

The Bernalillo County Sheriff’s Office reported 472 untested evidence kits, and the rest of the departments around the state reported 1,393 untested kits.

Only kits in cases in which a police report had also been filed were included in the tally.

Failure to test doesn’t mean the cases weren’t prosecuted.

DNA evidence from the kits is especially important in cases where the suspect is unknown or denies there was a sexual encounter.

The DNA can also be entered into a national database where it is checked against DNA evidence gathered in sexual assaults around the country.

“Knowing that evidence in sexual assault isn’t being tested has a chilling effect on the next victim,” said Connie Monahan, the statewide coordinator for Sexual Assault Nurse Examiners. “The problem is not going away. It has been building over time.”

DPS Secretary Greg Fouratt’s department sent letters last summer to 148 law enforcement agencies around the state asking for the number of untested “rape kits” they had in their evidence lockers. Of that total, 113 responded.

While APD and Bernalillo County, whose kits are tested by the APD forensic lab, accounted for nearly 72 percent of the untested kits, many small police agencies, which have their evidence tested at the DPS lab, had no evidence kits awaiting testing.

DNA extracted from swabs and clothing are put in tubes for further testing at the DPS crime lab. (Dean Hanson/Journal )

DNA extracted from swabs and clothing are put in tubes for further testing at the DPS crime lab. (Dean Hanson/Journal )

Roswell was one of the largest police departments that didn’t respond.

In 2014, more than 1,400 rapes were reported to police agencies in New Mexico, according to the FBI uniform crime statistics report, and more than 1,000 sexual assault evidence kits are used by trained nurses each year.

“We knew there was a problem, enough people told us it was a problem, but we had to get some idea of how many were out there,” Fouratt said.

“We don’t know anything about the cases,” Fouratt said. “We don’t know if the cases were ever prosecuted, and we don’t know how old they are.”

“That’s the next step,” he said.

A step forward

Under the best of circumstances, officials say, it will take years and millions of dollars in extra funding to clear the backlog, while also dealing with other new cases and all the other work the state’s forensic scientists must handle.

But even confirmation of the huge backlog is greeted as helpful by some.

“The fact we recognize there are rape kits out there that have not been processed is a huge step for victims of sexual assault,” said Donna Richmond, director of La Piñon Rape Crisis Center in Doña Ana County. “Providers have been saying there were untested kits for some time; now we can move forward and do something about it.”

There was an effort in the Legislature last session that would have mandated the testing priority of sexual assault evidence over all other criminal cases, including homicides. The bills didn’t reach committee hearings and died.

But the complaints and the legislation got the attention of law enforcement.

In addition to initiating the survey, Fouratt established a working group to try to come up with solutions. Richmond and Monahan are members of the working group.

Magic bullet

DNA was supposed to be a magic bullet in solving sex crimes when it first became part of the law enforcement tool chest in the late 1980s. So why do so many evidence kits sit on shelves in evidence lockers?

Fouratt and others who spoke to the Journal said that, at this point, they could offer only speculation.

“There could be perfectly legitimate reasons they weren’t tested,” Fouratt said.

In some cases, suspects confessed and pleaded guilty, making the tests unnecessary in the eyes of the detective handling the case; some victims may have decided not to cooperate after the evidence was collected; turnover in detectives handling the case put older cases on hold; and turnover in lab analysts who leave New Mexico for higher pay may have added to the backlog.

Or in the days before the nationwide CODIS system that can match DNA of criminal suspects, police officers may not have seen any reason to send the evidence kit to the crime lab if they don’t have any leads on a possible suspect. CODIS came online in 1998, but law enforcement laboratories have to be accredited by the FBI to be part of it. Both the state DPS lab and the APD lab are accredited.

Some of the untested evidence kits at the Albuquerque Police Department evidence lockers date back to 1988.

Fouratt said follow-up letters will be sent to local law enforcement agencies asking for more specific information about the cases connected to the untested evidence kits.

“We didn’t want to put the agencies on the defensive when initially we were just trying to get a handle on the size of the problem,” Fouratt said.

The state Auditors Office is also preparing to conduct a “best practices” study of the problem, and the Legislative Finance Committee has included the issue on its agenda.

Clearing the backlog

Advocates are more interested in how to get all the sexual assault evidence kits tested.

DPS has a plan for the 1,393 evidence kits that officials there know they will have to test to clear the backlog.

“Our goal is that there be no rape kits sitting in evidence rooms,” Fouratt said. “The nature of sexual assault crimes is so severe, there should be no reason to keep these kits in evidence rooms.”

Margo Mikeska is the supervising forensic scientist at the DPS crime lab in Santa Fe. “Our staffing allows us to keep up with the kits that are sent to us,” she said. “But we are not staffed to handle the 1,393 that are out there.”

Mikeska said some of the money now being made available in grants either through the federal government or programs offered elsewhere would require using out-of-state laboratories.

“There are problems with that,” she said. “District attorneys have to pay to bring the out-of-state witnesses in to testify. That can get expensive and difficult to coordinate.”

Only accredited law enforcement forensic laboratories can enter information into CODIS.

She said that work done by the out-of-state laboratories would have to be rechecked by the local labs that are accredited by the FBI.

It would cost just under $1.2 million to hire two analysts and gear up to clear the backlog in 3.6 years.

To eliminate the backlog in 2½ years, the lab would need three analysts and supplies.

The state lab isn’t large enough to accommodate more than three additional DNA analysts and their equipment.

And that doesn’t take into account the 3,848 kits in the possession of APD and BCSO.

House Speaker Rep. Nate Gentry, R-Albuquerque, said in a telephone interview that he has asked the Legislative Finance Committee and others involved in preparing the legislative budget to make sure that clearing the backlog is included in the budget process.

“We want to make sure we carve out the money to address the problem,” Gentry said. “We’re also going to have to include money to help victims in some of these cold cases.”

He said he was concerned about revictimizing people who are told by police that they now have a suspect in a case that could be years old.

“We’re going to have to make sure these victims have proper support,” Gentry said.

Modest goals at APD lab

The problem for the APD crime lab is more complicated.

John Kresbach, who heads the lab, said in an interview that the goal for the DNA section is modest.

“We want to be able to complete testing on sexual assault evidence kits requested by our detectives within a year,” he said.

Kresbach said he is sure that a portion of the 3,476 untested evidence kits have been tested but that information can’t be retrieved from computer databases. It would require looking at each envelope containing the kits.

Besides personnel turnover, Kresbach and APD Commander Jeff McDonald said changes in court rules requiring evidence to be turned over earlier to defense attorneys in criminal cases have stretched the lab’s resources to the limit.

“The lab work is driven by what detectives ask for,” McDonald said. “They prioritize. They are the drivers.”

Kresbach said, “Homicides and those sexual assault evidence kits with suspects take priority.”

But Kresbach said the department and lab would continue to look for grants and other funding to try to deal with the 3,476 untested evidence kits.

“There are still issues to deal with,” he said. “Do you test the oldest first, or the more recent cold cases?”

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