She walked up to him slowly, with an uneasy smile that soon gave way to tears.
For two hours, Debby Dalhoff had listened as retired Memphis police evidence room manager Lester Ditto testified about a now-contested legal memo he’d relied on to destroy rape kits and collateral evidence in possibly thousands of cases in the 1990s.
Now, it was Dalhoff’s turn to talk, and she wanted Ditto to know. One of those cases was hers.
The memo was wrong: The statute of limitations had never run out on her case. It could still be prosecuted today, if only authorities could identify her assailant — if only they hadn’t destroyed her evidence.
“I don’t hold you personally accountable for what happened,’’ Dalhoff told Ditto, “because I know you were given instructions from the powers above you.
“(But) I am one of those that was destroyed.’’
The scene Tuesday, April 12, came at the end of a deposition hearing in a Circuit Court lawsuit accusing the City of Memphis of negligence for the Memphis Police Department’s failure to test rape kits. The suit continues to wind through the legal system eight years after it was first filed.
Scores of largely female victims have signed on as potential plaintiffs, though a motion for class-action certification is still pending.
The suit followed MPD’s 2013 disclosure that it had failed to properly inventory sexual assault evidence and had found more than 12,000 rape kits scattered in warehouses and property rooms across the city. That number — dubbed a “backlog” by officials but derided as “the mess’’ by activists — was among the largest in the nation.
MPD has long maintained that its backlog was so large, in part, because, unlike many other police agencies across the country, it didn’t destroy old rape kits. Rape kits are packets of evidence containing hairs and body fluids collected from victims following sexual assaults.
Now, Ditto’s account, which he opens in a new windowfirst told to the Institute for Public Service Reporting in 2020, challenges that official narrative.
Telling his story under oath for the first time Tuesday, Ditto told a roomful of attorneys how he gathered reams of evidence from sex crimes cases and dumped those items in a landfill.
The exact number is unclear. It’s also uncertain how many of the cases, such as Dalhoff’s, were labeled as non-prosecutable under the mistaken belief that the statute of limitations had expired.
Ditto has said MPD’s central evidence room at the Criminal Justice Center at 201 Poplar had become overrun with evidence from multiple law enforcement agencies involving a range of cases including murder, robbery, theft and rape.
He testified Tuesday that he’d discussed the lack of space in 1995 with supervisors in MPD’s Sex Crimes Bureau prior to undertaking a massive purge.
“I’m the one who said, ‘Hey, we’re running out of space,’’’ said Ditto, 67, who retired from MPD in 2000. “So, I went to Sex Crimes.’’
Ditto then was referred to MPD’s legal adviser and, eventually, to the Shelby County District Attorney.
In turn, then-District Attorney John Pierotti’s Office issued a March 1, 1995, opens in a new windowmemo authorizing Ditto to destroy “rape kits, records and evidence in unsolved, uncharged and unindicted sex crimes cases.”
The memo, presented as evidence Tuesday, is unequivocal in its authorization to destroy evidence:
“Today’s date is March 1, 1995. (Let’s say) you have a case that occurred on March 1, 1989. This case is now 6 years old and cannot be prosecuted even if the defendant walked into your office today and confessed. We do not need evidence, records or rape kits on this case or cases like this.”
Legal expert David Raybin told The Institute in 2020 the memo’s legal analysis is flawed.
According to Raybin, the memo misinterprets the statute of limitations in several ways:
First, it doesn’t appear to consider older instances of aggravated rape — sexual attacks involving a weapon, serious bodily injury or multiple perpetrators. Tennessee lawmakers rewrote the penalty for aggravated rape in 1989, limiting sentences to 15 years. But prior cases of aggravated rape carried a possible life sentence and, thus, had no statute of limitations.
Second, the memo fails to consider that the statute of limitations can be tolled if a perpetrator leaves the state. Though simple rape carried a minimum sentence of five years in Tennessee in the 1980s, cases could still be prosecuted years later if the perpetrator moved to, say, Arkansas or Mississippi.
Another concern involves exoneration: Kits may contain evidence that helps prove a suspect was misidentified and wrongly convicted.
“All the exonerations that I have seen in Tennessee have all — every one of them — been sexual cases,” said Raybin, a former prosecutor who helped rewrite Tennessee’s criminal code in 1989.
Under questioning Tuesday by plaintiff’s attorney Gary K. Smith, Ditto estimated that perhaps a tenth of the space in his evidence room was crammed with sex crimes evidence. That included small rape kits, each about 12-by-six inches in size.
Though he said he destroyed rape kits and collateral evidence in thousands of sex crimes cases, Ditto conceded under cross examination by City of Memphis attorney Jon Lakey that the actual number of rape kits destroyed might have been only “hundreds” and not thousands. The former manager at times struggled when trying to recall precise numbers from a quarter of a century ago.
It wasn’t discussed at the hearing, but official reports indicate that thousands of rape kits collected between 1985 and 2014 might be missing from MPD’s inventory. For example, MPD reported to the Tennessee Bureau of Investigation in 2014 that its inventory included 228 kits collected in 1996 that had not been tested for DNA. DNA testing was rare at the time. But police also had reported to the FBI that there were 789 rapes in Memphis in 1996, meaning that more than 500 kits might be unaccounted for from that year alone.
MPD last year denied a request by The Institute to obtain copies of electronic records documenting the destruction of sex crimes evidence, contending in a written response that “we have no way of pulling the information in the manner requested.’’
Following Tuesday’s hearing, rape survivor Dalhoff told Ditto she’s been searching for decades for answers for her still-unsolved 1985 home-invasion attack by a masked intruder.
“It has been hard on me for 37 years,’’ Dalhoff, 66, said as she and Ditto grasped each other’s hands in an extended handshake.
“I am so sorry,’’ Ditto told her.
Dalhoff says she began investigating her case years ago after receiving little cooperation from police. Dalhoff’s investigation uncovered opens in a new windowevidence disposition sheets in MPD files showing key pieces of her evidence — including clothing and bedding —were destroyed without her consent or knowledge weeks after Ditto received the District Attorney’s memo authorizing the destruction of evidence.
Those disposition sheets identify Ditto by his MPD employee number, 2198, as the one who destroyed her evidence.
Dalhoff’s rape kit was never found.
Because her assailant had a knife it’s believed her attack constituted aggravated rape for which there was no statute of limitations at the time.
The Institute typically does not identify rape victims. But Dalhoff spoke on the record because of her enduring anger and frustration over the handling of her case.
She and Ditto rode an elevator down to street level after the hearing and chatted briefly outside as a light rain began to fall.
“God bless you,’’ Ditto said as they parted. “I pray justice will prevail.’’