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Institute for Public Service Reporting – Memphis

Criminal Justice

“They Abandoned Us”: Rape Victims React After Hearing

Rape kit lawsuit against City of Memphis winds toward possible resolution later this month

Rape survivors speak with the news media following Thursday’s hearing. (Marc Perrusquia)

Samantha Shell had a message Thursday for Memphis leaders following a pivotal court hearing in the ongoing rape kit lawsuit against city government.

“They abandoned us,’’ Shell, 34, said in a hallway at the Shelby County Courthouse. There, a long-winding lawsuit accusing the City of Memphis of negligence for failing to test thousands of rape kits is expected to receive at least a partial resolution later this month.

“They need to say, ‘We apologize.’ That we failed y’all,’’ said Shell, who sat shoulder-to-shoulder with other victims in a back row during Thursday’s hearing. She contends police failed to adequately investigate her case years ago when she was raped as a juvenile .

“They just need to apologize to us as human beings,’’ Shell said.

Her comments followed another round of wrangling between attorneys representing the city and dozens of victims who are seeking class-action status.

Circuit Court Judge Gina Higgins set a hearing for March 22 when she is expected to rule on competing motions for summary judgment in the now nearly nine-year-old case.

The suit was filed in 2014 after the Memphis Police Department announced it had found more than 12,000 rape kits scattered in storage rooms across the city. Lacking a master inventory, the evidence was in such a state of disarray that critics labeled it, “The Mess.’’

Many of those kits collected between the 1980s and 2013 had never been tested for DNA, evidence that could have positively identified perpetrators, including some who struck again and again.

The suit currently has a lone anonymous plaintiff, “Janet Doe”, who was raped in 1997. But a number of women have signed agreements with the plaintiff’s attorneys hoping to certify the case as a class-action suit.

Thursday’s hearing focused on an 11th-hour motion filed last fall that postponed a ruling on the case then.

The motion filed Nov. 30 by the plaintiffs contends that MPD has engaged in “a pattern of false statements” about the availability of DNA testing before 2002.

Gary K. Smith

“It’s time for the curtain to come down on the city’s charade,’’ plaintiffs’ attorney Gary K. Smith said Thursday before Judge Higgins.

The city’s attorneys have argued that limitations in DNA testing prior to 2002 prevented MPD from submitting rape kits to the state crime lab in cases involving stranger rapes or unknown suspects. It wasn’t until 2002 that MPD gained access through the Tennessee Bureau of Investigation to a national FBI database of DNA profiles known as CODIS. Prior to CODIS access, there wasn’t anything to compare an unidentified DNA sample against, the city has maintained.

The plaintiffs’ motion, which seeks monetary sanctions and other actions, contends the city “misrepresented (to this Court) the pattern and capabilities that existed with regard to DNA testing of ‘no-suspect’ sexual assault cases.’’

TBI annual reports attached to the plaintiff’s motion show the state crime-fighting agency started building a statewide database of DNA profiles in the early 1990s. An independent examination by the Institute for Public Service Reporting found TBI began collecting DNA profiles in 1993 following passage of a state law requiring TBI to establish a DNA database for convicted offenders.

According to data released by TBI, the agency had collected 1,610 such DNA profiles by 1997, and the total surpassed 41,000 by 2002.

But, arguing for the city, attorney Jonathan P. Lakey said the plaintiffs’ claims are without merit.

Jonathan P. Lakey, left, and other city attorneys prepare to leave Thursday’s hearing. (Marc Perrusquia)

“The city made no misrepresentation,’’ Lakey told the court.

The database that TBI was building before gaining access to CODIS was simply a compilation of information that “wasn’t searchable,’’ he said.

“No searchable database was available until 2002,’’ Lakey told Judge Higgins.

A timeline TBI released to The Institute last fall appears to support that position.

“Due to technical limitations, no unknown DNA profiles were searched by the TBI Crime Laboratory until the implementation of CODIS,’’ TBI said in a written statement released through spokeswoman Keli McAlister on Nov. 14.

In support of its position the city submitted an affidavit by former TBI forensic scientist Samantha Spencer who said that DNA testing techniques used by the agency before CODIS were “not amenable to database searches.’’

Plaintiffs’ attorney Smith, in turn, questioned why MPD still didn’t test some kits after gaining access to CODIS.

“They’ve never explained why after 2002 they allowed these thousands of kits to accumulate without testing,’’ he said.

A smattering of victims watched Thursday’s proceedings from the gallery, and in what has become regular practice, spoke with the throng of news reporters afterward.

“There’s a lot of people out there that got raped and … (are) scared to speak up,’’ said Shell, who said she was attacked as a juvenile and contends police neglected her case. MPD did not immediately respond to an email seeking comment. Plaintiff’s co-counsel Daniel Lofton said Shell has signed an agreement seeking representation in the suit.

 The Institute typically doesn’t name victims of sexual assault, but Shell said she wanted to go on the record to help others.

“We’re here to be their voices and speak for them and let them know it’s okay. They can come. We can help them,’’ she said. “We all can be sisters, mothers, aunties, whatever, to help them.’’

Written By

Marc Perrusquia is the director of the Institute for Public Service Reporting at the University of Memphis, where graduate students learn investigative and explanatory journalism skills working alongside professionals. He has won numerous state and national awards for government watchdog, social justice and political reporting.

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