It’s long been an article of faith at the Memphis Police Department: Unlike numbers of police agencies across the country, MPD did not destroy rape kits.
Police officials have said that MPD’s refusal to discard old evidence was a key reason for its massive backlog of 12,000 rape kits that came to light in 2013.
But that official narrative was challenged in a recent deposition of a top-ranking police official when attorneys for rape victims suing the City of Memphis presented new allegations contending kits indeed were destroyed. The attorneys hope the new evidence will help prove their claims that MPD was negligent when it failed to test thousands of kits over the course of decades as perpetrators roamed free.
“Certainly, we would want to keep evidence,’’ MPD Assistant Chief Don Crowe testified in answer to questions from an attorney representing scores of victims in the hotly contested, long-running Circuit Court lawsuit.
Crowe’s answer in the February hearing came in response to a former police official’s claim that he opens in a new windowdestroyed reams of evidence — including rape kits — in hundreds and possibly thousands of sex crime cases in the 1990s because of limited storage space.
That former official, retired evidence room manager Lester Ditto, says he received authorization in a now-contested 1995 District Attorney’s memo to discard evidence in older, uncharged cases where it was believed the statute of limitations had expired.
But as the Institute for Public Service Reporting reported in 2020 in a special series on Memphis’ rape kit crisis, ‘The Mess,’ legal experts say the memo was flawed: Some cases covered by the document are still prosecutable today. That includes the case of Debby Dalhoff, now 66, who is still seeking answers for her unsolved 1985 home-invasion attack by a masked intruder who tortured and sexually assaulted her and a roommate for hours.
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.’’
Asked about Ditto’s claims, Assistant Chief Crowe said he’s never heard that.
“At no point during my participation have I come across any information like that,’’ Crowe says in the just-released transcript from his Feb. 9 deposition.
Filed in 2014, the lawsuit is the last surviving suit filed against the city in response to MPD’s rape kit backlog. It pursues a legal theory that the city negligently inflicted emotional distress on victims through careless handling of rape kits and indifference to sexual assault.
The case builds on a 2005 Tennessee Supreme Court decision involving the Catholic Diocese of Nashville. In that suit, the court allowed families of two non-Catholic boys abused by a priest outside of church activities to pursue discovery against the diocese because church officials had recklessly inflicted emotional harm on the families by not adequately investigating longstanding abuse allegations against the priest inside the church.
In 2020, plaintiffs’ co-counsel Daniel Lofton said of the legal approach the plaintiffs are taking in their suit against the city, “It has some major challenges, but it’s got some major advantages, too … Our standard (of proof) is much lower. We only have to prove that the city was negligent.”
The case is one of two filed against the city in response to its announcement in 2013 that it had failed to keep a thorough rape kit inventory. MPD found more than 12,000 kits scattered in warehouses and storage rooms across the city. Rape kits are packets of evidence containing hairs and body fluids collected from victims following sexual assaults. Some kits degraded in harsh temperatures in conditions that weren’t climate controlled.
The other lawsuit was a class action suit filed by former City Attorney Robert Spence in U.S. District Court in December 2013 alleging the city failed to test kits and properly investigate the rapes of mostly female victims in violation of the 14th Amendment that guarantees equal protection under the law. Judge John T. Fowlkes Jr. dismissed the suit in 2017 but the Sixth Circuit Court of Appeals in Cincinnati reversed the decision in 2019 and sent it back to the lower court, giving the case new life.
But the suit was dismissed again last month after the plaintiffs conceded they could not meet the high burden of proof required to receive class-action certification. According to paperwork in the case, that burden includes proving “the allegations for acts of discrimination by the individual officers involved in this case emanate from an established policy, practice and/or custom of the City of Memphis.”
However, the Circuit Court case was given new life following claims by former evidence room manager Ditto that he dumped reams of evidence in a local landfill. Plaintiffs’ attorney Gary K. Smith filed a notice this month to take Ditto’s deposition, a move that comes even as motions for summary judgment filed by the city are pending before Judge Gina C. Higgins.
Ditto was not mentioned by name during Crowe’s deposition, but his account triggered sharp exchanges between attorney Smith and the assistant police chief. At one point, Smith asked Crowe about an October 2021 affidavit he filed in which he said, “Unlike some other jurisdictions, Memphis did not have a practice of disposing of SAKs (Sexual Assault Kits) in its historic inventory.”
“How did you determine that?” Smith asked.
“Twofold,’’ Crowe responded, saying he’d discussed the issue with other police agencies and had read a Tennessee Bureau of Investigation report indicating other agencies didn’t keep kits as long as Memphis had. MPD initially found kits “very consistently” dating to the early 1980s and later found some from the ‘70s, Crowe said.
“Were you aware that during this time period that MPD disposed of thousands of SAKs, threw them away in a dump?’’ Smith asked.
“No, sir,’’ Crowe answered.
“Assume that it’s true, that MPD took literally thousands of these SAKs and threw them in a garbage dump, you would not approve of that, would you?’’ Smith inquired.
“No, sir,’’ Crowe responded.
“That would be inappropriate, wouldn’t it?”
This story first appeared at dailymemphian.com under an exclusive use agreement with The Institute.