$35 Million Reasons to Test Your Backlog

Melissa MourgesChief, Forensic Sciences/Cold Case Unit

New York County District Attorney’s Office

N.Y. / Region | NYT Now

New York Initiative to Help Other Cities Clear Rape-Kit Backlogs

Cyrus R. Vance Jr., the Manhattan district attorney, announced that his office had committed up to $35

million to eliminate a backlog of rape kits that await testing– deadline June 1st.

New York City’s Backlog Project

17,000 kits citywide: 1989 - 1998

Manhattan: 3,799

Why Test? POPULATE THE DATABASES!!OCME couldn’t do them and keep up with new

cases

OUTSOURCED

Bode /Cellmark/ GeneScreen

Swabs only/600 kits per month

October 2000 - April 2003

Lots of problems….

Forklift Approach

We tested everything: open cases, closed cases, stranger cases, acquaintance cases, cases beyond

the statute of limitations

We pried police files from “secure storage” in the basement of the MSVS squad

Problem: Incomplete paperwork Victim’s name = “Known to Department” Solution: Contract labs Xerox front of rape kit for file

A victim who undergoes rape kit collection expects that kit will be tested.

We test all the evidence in other types of cases

“Don’t bother to test these guns and drugs; we know who was in possession because we got them red-handed!”

NOT!

Many Benefits of Forklift Approach

Corroboration of all kinds:Cases with Compromised Victims

Confused or Elderly Victims

Victim #1: 56 year old woman, with slurred speech and history of alcohol abuse. Police thought she was intoxicated when she

reported rape; in fact, she was a stroke victim. Case was unsolved.

Confused or Elderly Victims• Victim #2: Elderly “pigeon lady” who was attacked in

elevator after feeding birds. Reported rape. Police suspected raped in retribution, because her grandchildren involved in drugs. Case was unsolved.

Cases matched each other, then CODIS hit to Carleton Evans.

Convicted after trial = 20 years.

Moral of the story: 2 is better than 1; gaps in victims’ memories less important with DNA evidence

Sex Worker/Drug Addicted Victims

Victim #1: Prostitute reports john with butcher knife raped her. Case unsolved.

Victim #2: Prostitute reports john with butcher knife raped her. Case unsolved.

Victim #3: Addict reports man with butcher knife raped her during drug transaction. Case unsolved.

All cases match to same guy.Convicted after trial = 25 to

100 yearsMoral of the story: the rape of one prostitute may go unsolved; DNA may not prove a thing; but three victims makes a serial rapist and a

compelling case.

Benefits of Forklift Approach:“Date” Rapists

We linked several different perps in “date-rape”cases.Moral of the story: One drunk girl who wakes up confused

about what happened is a shame; 2 or 3 with the same guy points to a predator.

Even When We Know WHO DID IT, TESTING PROVIDES CORROBORATION!

Moral of the Story: Prosecutor still needs to prove the who, what, where, when and how, even in an

acquaintance case. DNA helps!

Benefits of Forklift Approach:Acquaintance Rape Solves Stranger Rape

Victim #1 reports rape by husband, then drops charges.

Victim #2 reports stranger rape; case unsolved.

Case to case CODIS match; we know ID of assailant in the intimate partner case;

stranger case is solved because the intimate partner kit was tested.

Moral of the story: Testing kits with known assailants can solve other

cases!

Benefits of Forklift ApproachImpact on current cases

• Defendant had pleaded guilty to a Manhattan rape, and was begging judge for mercy.

• He argued that this behavior was an aberration, no record.• Days before sentencing, we received CODIS hit to 5 other

Manhattan cases and 2 Queens cases – all barred by SOL.• Judge used this information to give maximum sentence.

MORAL of the Story: TIMING IS EVERYTHING!

Benefits of Forklift Approach:Detecting New Patterns

• Serial rapists often go undetected- they move, change MO, learn from mistakes, escalate violence.

• Recent NDIS hit from offender in Puerto Rico to 13 unsolved NYC home invasion/rapes: all barred by SOL.

• Can provide the information to parole.

Manhattan:11 rapes

Queens: 1 rape

Bronx: 1 rape

Benefits of Forklift Approach:Victims in time-barred cases write

parole letters. Their voices are heard.

Moral of the Story: Even cases barred by the Statute of Limitations provide important evidence!

• Tested in 2005, 1973 underpants matched to 23 cases in three states… from the 1980’s and 1990’s

Unexpected Benefits of Forklift Approach• SOL outrage led to change in law in 2006.• Large number of CODIS-eligible profiles• Success stories led legislature to expand convicted

offender database.• NY now takes DNA from all convicted felons and all

persons convicted of Penal Law misdemeanors.

Benefits of Forklift Approach: EXONERATION

Michael Mercer was freed after 12 years when backlog testing using new technology identified Arthur Brown as the true rapist.

1405 Park Avenue, NYCMarch 19, 1991

The 18 year-old victim got on the

elevator. A man got on, too.

He pulled a gun, and forced her to the

rooftop landing where he raped and robbed

her.

She went to the hospital, where a rape kit was done.

The victim moves out for three months. When she returns, she sees Michael Mercer and identifies him

as her rapist.

Rape kit proves negative

Mercer was convicted and sentenced for rape

20½ to 41 years

Michael Mercer’s convicted offender profile entered CODIS in December, 2001

• A profile from the victim’s rape kit was entered into CODIS in April, 2003.

• On May 14, 2003, Manhattan DA’s Office is notified by the OCME that the DNA profile from the victim’s rape kit matched convicted offender Arthur Brown.

Um, what?• What went wrong?• Who’s Arthur Brown? A convicted rapist!• We have a problem because Michael Mercer was

convicted, NOT Arthur Brown

We found the victim on May 15, 2003

• She had since become an NYPD police officer• Showed her a photo array. She picked Arthur Brown • She fell apart. We arranged counseling.

What did we do? • Checked the convicted offender sample – no mix up• Examined rape kit – all envelopes properly labeled

On May 16, 2003, detectives interviewed Arthur Brown in jail

• He admitted to earlier robberies and rapes.• He says he is “haunted” by what he had done.• He refuses to discuss this case.

As best we could figure, the original serologist thought he tested all four swabs, but he had

only tested three.

The backlog lab developed a profile from the fourth, untested swab.

On Monday, May 19, 2003, detectives drive Michael Mercer from state prison to Manhattan

Supreme Court.

Mercer has no idea what’s going on.

DA makes motion to vacate judgment based on newly discovered evidence.• Mercer is a free man.• Years Mercer served in prison: 12• Days from cold hit to exoneration: 5

Disadvantages of Forklift Approach