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Victims Seek Sanctions Against MPD, City of Memphis

Plaintiffs in a rape kit lawsuit accuse Memphis police of making a “pattern of false statements” about DNA testing capabilities

    She fell asleep early that night, only to be awakened by a masked intruder.

    In the desperate struggle that followed, the woman — a Nashville attorney — bit off skin from her attacker’s finger as he attempted to rape her.

    Details of the gruesome 1994 Davidson County encounter have long lined law books, but they now are part of a new legal twist in Memphis’ ongoing rape kit lawsuit accusing police of decades of negligence.

    Plaintiffs’ attorney Gary K. Smith is surrounded by reporters Thursday, October 20, outside a Memphis courtroom where rape victims are suing city government for alleged negligence in the handling of thousands of sexual assault cases. (Marc Perrusquia)
    Plaintiffs’ attorney Gary K. Smith is surrounded by reporters outside a Memphis courtroom in October. Smith represents rape victims who are suing the city of Memphis for alleged negligence in the handling of thousands of sexual assault cases. (Marc Perrusquia)

    In a motion filed Wednesday, Nov. 30, attorneys representing dozens of victims cite early DNA testing on that severed skin as one example of how law enforcement routinely used the technology long before the Memphis Police Department contends it became widely available to solve rapes committed by unknown assailants.

    The attorneys contend MPD has engaged in “a pattern of false statements” about the availability of DNA testing before 2002. They’re seeking monetary sanctions and other actions they hope will turn the eight-year-old Circuit Court case in their favor.

    “This Supplemental Memorandum and Motion for Sanctions will make clear that the City of Memphis has misrepresented (to this Court) the pattern and capabilities that existed with regard to DNA testing of ‘no-suspect’ sexual assault cases before and after Plaintiff Janet Doe was raped in 1997,’’ the 18-page motion says.

    Janet Doe is a pseudonym for the case’s sole plaintiff, whose rape kit was tested years after her 1997 rape by a then-unknown assailant. Her attorneys say they have dozens of other victims lined up and are asking Judge Gina Higgins to certify the case as a class-action suit.

    A sexual assault kit used by investigators to collect evidence from rape victims. (Karen Pulfer Focht) 

    “Specifically, the City has repeatedly indicated that no-suspect cases were not submitted and could not be submitted for DNA testing until at least the year 2002, once the Tennessee Bureau of Investigation requested that municipalities provide sexual assault kits from no-suspect cases to TBI. That is false,’’ says the motion by attorneys Gary K. Smith and Daniel Lofton.

    The motion follows two days of hearings in October when attorneys for the plaintiffs and the City both asked Judge Higgins to grant them summary judgment. Higgins had indicated she would rule in two weeks, or about Nov. 4, but agreed to delay her ruling pending the plaintiff’s motion citing new evidence.

    City officials declined to comment Wednesday on the motion.

    “As standard practice, we do not comment on pending litigation,’’ MPD spokeswoman Theresa Carlson said.

    Smith and Lofton say in their motion they don’t believe the City’s attorneys are responsible for the false statements, indicating blame lies within MPD. The motion says sanctions against the City are in order nonetheless due to “improper discovery conduct.”

    Key to the plaintiff’s claims is an affidavit by TBI’s retired Nashville DNA Unit supervisor Joe Minor, who says DNA testing was available in no-suspect cases as early as 1993.

    “Between the years 1993 and 2002 the Tennessee Bureau of Investigation DNA Unit would and did accept no-suspect cases for DNA testing,’’ Minor said in his Nov. 22 affidavit. “No-suspect DNA testing during that time period was available to law enforcement agencies across the state of Tennessee, including the Memphis Police Department and its Sexual Assault Unit or Sex Crimes Unit.’’

    The City’s attorneys have argued that MPD didn’t submit rape kits with an unknown suspect for DNA testing before 2002 or 2003, when the agency gained access through the TBI 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.

    “In 1997 there was no DNA database available to MPD to compare to the DNA from a ‘no-suspect’ SAK (sexual assault kit),” said MPD’s Assistant Chief of Police Services Don Crowe in an Oct. 20, 2021, affidavit. (Mark Weber/The Daily Memphian file)

    “As her (Janet Doe’s) sexual assault occurred in 1997, consistent with professional investigation standards, Ms. Doe’s SAK (sexual assault kit) was not submitted for DNA testing during the investigation because the DNA testing would only be conducted if a suspect had already been identified,’’ MPD Assistant Chief Don Crowe said in an Oct. 20, 2021, affidavit filed in the case.

    “In 1997 there was no DNA database available to MPD to compare to the DNA from a ‘no-suspect’ SAK.’’

    However, TBI annual reports attached to the plaintiff’s motion for sanctions show TBI 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.

    TBI’s 1993-94 annual report says its Forensic Services Division conducted 427 DNA tests that fiscal year involving 97 cases.

    “Thirty-six (36) suspects were identified with evidence from a crime scene or a victim of the crime,’’ the report said. The report said TBI forensic scientists had begun “utilizing the FBI DNA computer software using the same methods as the FBI for DNA testing’’ and that all DNA profiles “are being entered into the TBI’s DNA database.’’

    Available records provide conflicting accounts, however, on just how often TBI searched databanks to match unknown DNA profiles in the 1990s.

    A timeline TBI released through spokeswoman Keli McAlister seems to suggest that DNA matches were mostly or perhaps even universally made then by comparing an unknown sample against a specimen taken directly from a known suspect.

    “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 to The Institute on Nov. 14.

    Presumably, that implementation happened in 2002. That’s when “the first unknown DNA profile (was) submitted from the TBI Crime Laboratory to the (national) CODIS database,’’ the TBI timeline says.

    TBI didn’t spell out in its statement what those technical limitations were. But it noted that an early DNA testing process known as Restriction Fragment Length Polymorphism produced results on an autoradiograph that “is not amenable to database searching.’’

    Nonetheless, evidence in the 1994 Nashville case involving defendant Robert Jason Burdick shows that a DNA profile was developed from his severed skin and submitted to the CODIS national databank prior to February 2000 after using more advanced Short Tandem Repeat DNA analysis.

    According to a 2012 Tennessee Supreme Court opinion upholding Burdick’s conviction for attempted rape, no match was found in CODIS. But Nashville police then filed an affidavit on Feb. 2, 2000, accusing an unknown DNA profile of aggravated rape. The action was taken to file charges before the statute of limitations expired. The DNA profile later proved to be Burdick’s, and he eventually was convicted of attempted aggravated rape.

    TBI did not respond to questions about whether it had alerted Tennessee law enforcement agencies to the potential use of its databank in the 1990s or if MPD was correct in its assertion that CODIS didn’t become widely available until 2002.

    “We do not believe it is appropriate to comment on the policies, practices, or accounts of other individuals or agencies,’’ McAlister said in the emailed statement.

    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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