By Andrew Keatts.
After getting in a fight with her mother, a 13-year-old girl went to Memorial Park to walk around. That’s where she met a 15-year-old who invited her back to his house for some food.
Once there, he told her that he was in a gang. When she asked to be taken home, he said that would have to wait until “after sex.” That’s when he allegedly held her down and raped her.
Ten years later, on June 12 of this year, the San Diego Police Department’s crime lab tested the rape kit from the incident. The kit included five swabs taken from the victim’s body, potentially containing DNA from the suspect.
But the crime lab did not test all five swabs, as it would have under its normal procedure.
Instead, analysts tested just one swab from the kit. That one swab did not find any male DNA, and all other testing was discontinued. Because the other swabs were not tested, there is no way to know whether they contained the suspect’s DNA, which might have allowed the lab to check the suspect’s profile in a federal database to potentially connect it to other sexual assaults.
SDPD nonetheless marked the kit’s testing complete, removing it from the backlog of untested kits the city has been pressured to analyze as part of a nationwide movement to test all rape kits – an effort SDPD has vocally opposed.
The kit is one of dozens that the city’s crime lab has tested this year under a less rigorous procedure in which city criminalists examine only one swab from certain rape kits. Crime lab management told staff about the new procedure in March, according to minutes from a meeting of the lab’s biology unit obtained by Voice of San Diego, as well as five crime lab employees.
Those criminalists, whose names Voice of San Diego has agreed to withhold because they fear retribution, said crime lab management explicitly told them the less rigorous procedure was meant to get the kits tested so they could “check a box” saying they had been tested.
“That we were ‘just checking a box’ was mentioned numerous times by numerous people at various levels, both the analyst and supervisor levels, in one-on-one interactions and in meetings,” said one of the criminalists. “I took that to mean that the only purpose for testing these kits was for accounting purposes, to show that this kit had been on our books, we tested a single swab and that should satisfy any sort of public demand.”
In another of the cases where just one swab was tested, a 16-year-old girl spent the night at a friend’s house, when an 18-year-old suspect she knew came into the den and they began kissing. When she objected to additional advances, he allegedly held her down and raped her. A 6-year-old victim’s mother told police in another case that the victim’s uncle had been coming into her room at night and touching her inappropriately. A different 6-year-old victim visited her grandfather, when she says her 16-year-old adopted uncle allegedly took her into the bathroom and orally copulated her genitals. Another woman told police she went to a former sexual partner’s house to pick up her son’s hat when he began serving her vodka; she woke up the next morning with memory loss but said he told her that he had sex with her. In another case, a woman met up with her ex-boyfriend in North Park when he allegedly pulled her behind a dumpster, head-butted her in the face, held her down and raped her.
In each of those cases, just one swab from each kit was tested, no DNA was found and the remaining swabs and, in some cases, other clothing collected by detectives was left untested.
SDPD Lt. Shawn Takeuchi said the less rigorous testing was acceptable because it happened in cases where investigators had already identified who the suspect was, and hadn’t previously tested the kits for other reasons.
“In all of these cases, the suspect was known, and enough information was available in these cases to either submit to the District Attorney’s Office for prosecution, or to issue an arrest warrant,” Takeuchi said in a written response to Voice of San Diego’s findings. “All kits are kept indefinitely, and at any time further analysis was needed, the laboratory could do so immediately.”
The argument for testing all rape kits, though, is that doing so could identify patterns of behavior, by linking suspects to past assaults through the federal database run by the FBI.
“The value of testing those kits is to have profiles in the database to solve other cases,” the first crime lab analyst said. “But management and above still sees this as a fool’s errand.”
Whether it is worthwhile to test these kits has been extensively argued in San Diego. SDPD and the crime lab lost the argument. A 2014 state audit of three large crime labs, including San Diego, found that less than half of collected rape kits had been tested. The other police departments, Oakland and Sacramento, agreed to begin testing all kits. San Diego refused, with Crime Lab Manager Jennifer Shen arguing in 2016 it was a waste of time and resources.
A year later, City Attorney Mara Elliott publicly disputed the contention by former SDPD Chief Shelley Zimmerman and Shen that there was no value in testing every kit, arguing that other jurisdictions had already demonstrated that “the evidence in untested kits can prove valuable in solving cold cases and identifying serial rapists.”
That same year, the City Council set aside $500,000 for the crime lab, and directed it to use the money to help clear the city’s backlog of untested kits. At the start of 2018, a still-skeptical SDPD presented a plan to the City Council to test about 500 of the 2,000 untested kits in its possession.
Pressure has also been coming from the state. The Legislature just this month passed SB 22, requiring all new rape kits to be tested within 120 days of being collected, to prevent any new backlogs from forming. It is awaiting the governor’s signature. AB 3118, signed into law last year, required all crime labs in the state to audit their untested rape kits and report the results to the Department of Justice by July.
But it was this spring that crime lab analysts were told to start testing just one swab from certain kits, breaking with their normal practice of testing six swabs from each kit, which was adopted by a working group including representatives from the district attorney’s office, a victim’s advocate, a sex crimes sergeant and the crime lab manager.
“The reason given was, ‘we just need to check the box,’” said a second crime lab analyst who spoke to Voice of San Diego. “There was no scientific reason given, not that this would be more effective, there was no indication that this was anything other than a political policy decision.”
Ilse Knecht, director of policy and advocacy for the Joyful Heart Foundation, the victims’ advocacy group that has spearheaded the nationwide push to end the rape kit backlog, said she was disheartened to hear a crime lab was still exercising so much discretion over which kits deserved full analysis.
“All the research across the country, so many crime labs have seen the light – this is just out of the wave of the future, it’s out of line with what’s being done by the very progressive labs that are committed to the future, who understand that offenders and repeat offenders are dangerous,” she said. “To just check a box? That’s not in the interest of public safety.”
“The reason given was, ‘we just need to check the box.’ There was no scientific reason given, not that this would be more effective, there was no indication that this was anything other than a political policy decision.”
But Takeuchi said the city is proud of its process.
“This laboratory was not ‘forced’ to clear the backlog, and are, in fact, moving forward in a thoughtful, victim-centric manner, testing kits category by category,” he said.
For most kits – both those in SDPD’s backlog now being testing and new, open cases – crime lab analysts test six swabs, after reading the medical report in the kit to understand which swabs are the most likely to find the suspect’s DNA, based on the nature of the alleged assault.
In March, the crime lab introduced a new, less rigorous testing procedure for a specific subset of historic kits. The one-swab procedure was reserved for kits in cases that the district attorney declined to prosecute, or where a warrant had been issued for an individual’s arrest.
SDPD said about 40 kits were tested in that manner.
But the crime lab has already canceled the practice. It appears to have done so just one day after Voice of San Diego asked about the policy. Going forward, all rape kits – including those that the district attorney declined to pursue or where an arrest warrant was issued for a suspect – will now undergo the same analysis.
Voice of San Diego first requested an interview with Shen, the crime lab director, on Aug. 13. SDPD Sgt. Michael Stirk formally denied that request on Aug. 20. On Aug. 21, Voice of San Diego informed the city that it had obtained minutes from the biology unit meeting describing the adoption of the one-swab testing procedure for certain kits.
The following day, Aug. 22, crime lab management told its analysts that going forward, they’d be doing things differently. They had completed testing the historic kits in which the district attorney declined to prosecute or where a warrant had been issued, two analysts who attended the meeting said, and going forward they would test all kits in the same manner – meaning analysts would test at least six swabs from the kit. If they found additional old kits that the DA declined or where an arrest warrant was issued, those kits would be tested under the standard six-swab testing procedure.
The city still has not agreed to make anyone from the crime lab or SDPD available for an interview, but responded in writing to Voice of San Diego’s findings.
Takeuchi said the department stood by its decision to test certain kits under a standard that it will no longer use for future kits that fall into the same category.
“This plan was vetted through the Sex Crimes Unit, and was approved by the Sex Crimes Division Chief at the district attorney’s office,” he wrote. “If the suspect was arrested, at that time, we would go back to the kit, and test any additional item that the detective thought was probative.”
The argument against testing rape kits in cases in which there was a warrant issued or a suspect was identified but the district attorney declined to prosecute is that the alleged rapist is already known, so there’s no reason to try to identify them through their DNA.
The Joyful Heart Foundation and others, though, argue those are exactly the types of cases that should be tested.
For one, prosecutors often turn down cases they don’t think they can win, and disproportionately those cases could include “bad victims” – people who they think juries may find a reason to doubt. That could include sex workers, for instance, or women who acknowledge they were severely inebriated during the alleged crime. It could include women who say they were raped by an ex-boyfriend.
But where any one of those individual cases may be tough to prosecute, linking it to other cases in which the alleged perpetrator may have done the same thing could establish a pattern that aids investigators or prosecutors.
“Through testing kits, we can find patterns that we never would have found before or revealed before,” Knecht said. “It’s really crucial to make those connections in the database. There are dangerous offenders moving between communities because they’ll never be caught. Any category of kits in either ‘decline to prosecute’ or ‘unfounded,’ those are red alerts to me. These are the kits you want to look at. Now it’s time to say we have a chance to review these cases, test this evidence and see who is walking on our streets right now.”
San Diego is no stranger to such cases.
In a string of rapes known as the “Efficient Pickup” case, three men were found guilty of raping drunk women they had picked up in downtown bars. One of those men was initially charged with one rape, then was charged with a second rape after his DNA matched a swab from a kit taken from an underage girl who was picked up at a downtown bar, taken back to his hostel and raped. SDPD didn’t test the kit until three years after the incident. Once it was tested, the swab matched the DNA from another victim in the federal DNA database.
That’s why Knecht said it’s necessary to close the gap in cases where investigators hand off a case to a district attorney who declines to prosecute because it will be difficult to win, leaving the kit untested.
“If you have 80 pounds of potatoes and someone tells you to start putting them in a 40-pound bag, you start by picking the best ones,” she said. “That’s what happens with cases. The cases that are more credible – the victim has no drug history, or they never did sex work – are the ones that are charged. The others fall off – and unfortunately, it’s the most marginalized men and women and trans people who are going to be on that list of declined-to-prosecute cases.”
SDPD has touted its “informed triage method” – its standard process that calls for testing six swabs per kit – for bringing down the average time it takes to test a kit by 18 days, and increasing the number of cases uploaded to CODIS, the FBI’s federal database, by 14 percent.
The largest private lab in the country, Bode Technology, which now markets itself as a solution for labs seeking to end their backlog of untested kits, screens three swabs and sends the most promising result for DNA testing.
In Oakland, where Jennifer Mihalovich, past president of the California Association of Crime Laboratory Directors, worked prior to her retirement, analysts tested every swab that was present in a kit, usually between seven and 10, depending on the nature of the assault.
“In my opinion, I would rather do more swabs in a kit than not,” Mihalovich said.
Mihalovich said that SDPD’s system of testing six swabs is “totally fine.” She said on the kits where only one swab was tested, she expected that analysts would have the freedom to test additional swabs if necessary. “If they see something, but it’s not necessarily enough to get a really good profile, I bet they go back and get more samples,” she said.
Likewise, she suspected that the analyst would have the freedom to read the medical report in the kit to determine which swab would be the most promising.
“I would bet they are not so bound to that one swab, they can probably talk with their supervisor and say ‘this one doesn’t make sense to test,’” she said.
If crime lab analysts were not given that freedom, she said that would be a problem. But the crime lab staffers who spoke to Voice of San Diego said they were explicitly told not to exercise any discretion over which swabs they tested.
The biology unit meeting minutes obtained by VOSD call for analysts to always test one specific swab: the external vaginal swab. Internal lab research, according to the meeting minutes, SDPD’s written response and the criminalists who spoke to VOSD, indicated that was the swab most likely to find male DNA. If that swab wasn’t present in the kit, analysts could refer to the department’s internal research to determine the next swab that most often produced a hit. Otherwise, they were directed to test only the external vaginal swab.
A third crime lab analyst who spoke to Voice of San Diego stressed that testing the external vaginal swab simply doesn’t make sense in every case – particularly cases in which the alleged crime involved a different part of the victim’s body.
“To have a case where a victim is forced to orally copulate a male, and there’s an oral swab, but we’re testing the external genital swab, or she says, ‘He bit me on the breast,’ and there’s a swab from the breast and that’s the only contact … the external genital swab won’t be usable, but that’s what we’ll test,” the third crime lab analyst said.
The second crime lab analyst said it was clear they could test only the external genital swab, unless it was not in the kit.
“If that was in the kit, you test that,” the second crime lab analyst said. “You weren’t to read the medical report, or check the crime report, or get any additional information to modify your test.”
Takeuchi did not directly respond to the testimony from crime lab staffers who said they were explicitly instructed to test only the external genital swab for all kits where only one swab was being tested, unless there was no external genital swab present in the kit.
The second crime lab analyst said they’re relieved that the lab has discontinued its one-swab testing process, but remains uncomfortable that they “put up reports and discontinued cases based on these policies, and that I’m never going to be able to go back to those cases to do the work I think should have been done in the first place.”
“The biggest source of discomfort for working only one swab is that I have absolutely seen kits where 90 percent of a kit is negative and only one swab has DNA on it,” the analyst said. “So working one swab and thinking that’s representative of the entire kit makes no sense to me.” The third analyst said they were frustrated because they chose to enter the field to help solve crimes.
“This seemed to be the exact opposite – to do work for sake of checking boxes, without any regard to finding potential suspects, or eliminating potential suspects,” they said.
That analyst said, “We are just checking boxes” was a direct quote from one supervisor.
“There was no reservation at all in [the supervisor’s] voice,” the analyst said. “The only thing that I could sense was potential frustration that we have to do anything.”