Rape Case DNA Tests the Limits

Late for school, the 7-year-old girl was hurrying along South 18th Street, going as quickly as she could in her puffy snowsuit. The man appeared suddenly, wrapped his hand around her right wrist and pulled her behind a house. He raped her. Then he disappeared.

Six years later, at midnight on Dec. 2, the unknown rapist would have been forever free from punishment, saved by Wisconsin’s statute of limitations for sexual assault. Instead, he has been charged with rape and kidnapping.

His identity, such as it is, was revealed for the first time in the November arrest warrant: “John Doe, unknown male, with matching deoxyribonucleic acid [DNA] at genetic locations D2S44, D4S139, D5S110, D10S28, D1S7 and D17S79.”

In a novel effort to beat the statute of limitations on a pile of unsolved sexual assaults, an enterprising team of investigators and prosecutors here is testing the legal boundaries of DNA evidence. Instead of listing the traditional name or physical description used in a John Doe warrant, they are detailing the suspect’s most basic genetic makeup.

But the tale of one young victim’s second chance for justice also is a sobering story of the nation’s state-run DNA databanks--and, in turn, the FBI system designed to link them. Hobbled by a lack of funding, a mammoth backlog of samples and fundamental differences between systems, the promise of DNA databanks--perhaps law enforcement’s most promising tool since the FBI’s fingerprint catalog--is far from being realized.

Wisconsin is ahead of most states, and yet the semen from the girl’s rapist sat untested in a police property room for nearly six years. Now that the sample has been cataloged, Wisconsin still can search for the rapist in only 22 other states, since the rest don’t yet have the funding to tie into the FBI’s year-old Combined DNA Index System, or CODIS.

In the end, the girl, now 13, was the beneficiary of investigators with a heart-wrenching task: Go back to cases on the verge of expiring and decide which might be salvaged by an untested legal tactic, and which to write off for certain.

“We had to pick the ones where we had good evidence and the victim was still available,” said Det. Lori Gaglione, a soft-spoken, hard-boiled veteran of the city’s Sensitive Crimes Unit. “We had to choose.”

Semen in Case Untested For Nearly Six Years

The girl didn’t know the man, or even where he came from. She knew that he was wearing jogging pants and that they were still pulled down when he told her she could go.

A detective took the semen sample from a sidewalk behind the house on South 18th and sent it across town to the Wisconsin State Crime Laboratory. There it would sit, untested except to verify that it was semen, for about 1,934 days--a length of time not at all extraordinary in the United States for cases without a suspect.

Almost from the day in 1987 when British authorities made the first arrest based on DNA evidence, of a double-murderer named Colin Pitchfork, the promise of the technology has been clear. With current techniques, enough DNA to identify a criminal can frequently be found in the saliva he leaves on a cigarette butt, in a strand of hair--indeed, in the oils that make up the otherwise unusable fingerprint he leaves on a night stand.

But while the science--and the political rhetoric--of DNA evidence has blossomed, funding and coordination have not. And labs across the country are overwhelmed.

“It’s a national scandal,” said attorney Barry Scheck, who wrote New York state’s databank legislation. “This technology can both identify the guilty and exonerate the innocent, and legislatures aren’t funding it.”

The Los Angeles Police Department buys a new refrigerated trailer every six months to store its ever-growing cache of DNA evidence. The New York Police Department recently began to hire private laboratories to help analyze its untested rape kits--16,000 of them, dating back five years.

Nationwide, about 500,000 samples taken from crime scenes sit untested. And the untested crime-scene samples are only one quarter of the backlog story.

DNA databanks are, in effect, a combination of two separate catalogs--one of crime-scene evidence, the other of samples from convicted offenders. The idea is to compare one with the other in the hopes of a “cold hit,” or match.

As the half a million crime-scene samples sit untested, however, another 1 million convicted offenders who by law should be tested have not been. On top of that are another half a million convicted offenders whose samples have been drawn but whose genetic profiles never have been entered into a database, according to a federal commission.

“The longer it takes us to [clear] the backlogs and catch up, the more people we have raped and murdered. It’s that plain,” said Chris Asplen of the National Commission on the Future of DNA Evidence, a group put together by Atty. Gen. Janet Reno. “The question isn’t how long it will take us to get there, but how can we get there faster.”

The semen from the young Milwaukee girl’s rapist would almost certainly still be part of the national backlog if not for Gaglione, a handful of other investigators and Assistant Dist. Atty. Norman Gahn.

As the state prepared to tie in to the FBI’s CODIS last January, the group sat down and decided to seriously test a notion that had been floating around for several years: use DNA to try to resuscitate expiring cases.

‘You Can’t Change Your Genetic Code’

It was, they knew, a desperate act. The tactic was tried in 1991 in a Kansas case, but using far less sophisticated DNA-typing, and the idea has never been tested in court.

If and when a suspect is caught, defense attorneys are likely to argue that the warrant is an end-run around the statute of limitations. As in most states, Wisconsin law allows a warrant to be issued for a person whose name is not known so long as the suspect can “be identified with reasonable certainty.” Typically, that has meant an alias or a description or a home address.

Such means of identification, Gahn argues, are anachronistic in an age when a person can be genetically identified with an accuracy of one in billions, trillions and even more.

“You can change your name, grow a beard, shave your head,” he says. “But you can’t change your genetic code. We know exactly who these rapists are. We just don’t know their names.”

Combing through tall stacks of musty files, investigators gathered all the cases about to expire. They found dozens. And they asked cynical, practical questions about each.

Could the victim be located to testify if a DNA match was found? Was there any chance the suspect could claim the encounter was consensual? How vicious was the attack?

The team chose 53 unsolved sexual assaults. The girl’s case made the cut in part because it so shocked the investigators, many of whom have children of their own.

“It was so awful and chilling,” said Gahn, a father who has been prosecuting sex crimes for a decade and a half. “We just couldn’t let this guy go.”

The hits came quickly after the 53 profiles were entered into the databank. One sample matched a convicted rapist already in prison in another part of the state. Eight hours before the statute of limitations was to expire, Gahn charged him with the Milwaukee rape. Another sample matched a rapist incarcerated in Minnesota. Three samples matched, indicating an unknown serial rapist, who has been charged.

The girl is still waiting. Maybe her rapist is in jail, too. Maybe he lives near her new school.

Databank Not Used to Full Potential

Until now, DNA profiling has been employed primarily when police have a suspect but want that final bit of evidence for prosecution. But the extraordinary promise of DNA databanks lies in their ability to stretch the use of DNA samples from the courtroom to the streets, to find the suspect in crimes without any, breathe new life into cases long gone cold.

At many labs nationwide, however, it is more than they can do to keep up with the cases that have suspects.

“The laboratories are telling the police, don’t even send us your non-suspect cases--we can’t do them,” said Asplen.

The lab in Milwaukee is one of two for the entire state of Wisconsin. It has nine full-time DNA analysts. Each year, the city of Milwaukee has about 1,600 sexual assault cases alone, and some of those cases have a dozen or more different samples. One complicated case can occupy an analyst for weeks.

“Are we getting the work done that needs to be done? Yes,” said Dirk Janssen, head of the lab’s DNA unit. “Are we getting the most out of the databank that we could? Probably not.”

A few states, notably Florida and Virginia, have been actively funding and improving their systems for nearly a decade. Both states now boast more than one cold hit a week, a figure that has increased dramatically as their databanks have grown.

California, nearly five times the size of Virginia, has scored just a dozen cold hits in the last five years, according to the DNA Commission. Despite being the second state, after Virginia, to pass databank legislation, California’s system is seriously hampered, experts say, by lack of coordination among jurisdictions and funding spread out among dozens of labs.

The Los Angeles County sheriff’s office’s databank, for example, is tied into the national system, but the LAPD’s is not, according to the FBI. The California Department of Justice’s databank in Berkeley is tied into CODIS, but the one in Fresno is not.

And California is still ahead of many states, a half-dozen of which still don’t have an operational databank at all.

Even as the labs fall further behind, many legislatures are expanding the list of those to be tested.

In the early 1990s, sex offenders were the primary targets of sampling programs. Four states, including Virginia, now sample all felons, and many states are considering legislation that would add thieves, burglars, arsonists and others.

Still, “the [national] backlog is growing,” said Paul Ferrara, director of Virginia’s state crime lab. “And the backlogs cost lives.”

Ferrara knows. Last fall, Virginia Beach police arrested longtime criminal Christopher Banks, 28, on a shoplifting charge--but they also suspected he was the man who, three months earlier, had raped and stabbed an 18-year-old 10 times, leaving her for dead. Detectives asked the state crime lab to hurry and compare a DNA sample from Banks with DNA from the rape kit before he could be released on the shoplifting charge.

But the lab, one of the most efficient in the nation, was swamped. Banks was released, and 11 days later he raped and murdered a 22-year-old woman in a town nearby, crimes he was later convicted of. When technicians compared the samples, Banks’ DNA was found in rape-kit evidence taken from the 18-year-old.

“In retrospect, we were indirectly responsible for the second woman’s murder,” Ferrara said. “And we’re one of the few state’s in the country that has much DNA capability.”

The system is relatively new and would not yet be operating with great efficiency under any plausible circumstances, everyone agrees. At the same time, serious and difficult debates are under way over who should be tested, the security of the samples, the information they could one day divulge.

A sample taken today, critics note, could theoretically be tested again when knowledge of the human genome has grown--having implications far beyond criminal justice, revealing everything from racial makeup to a predisposition to Alzheimer’s disease.

Many civil libertarians also argue that sampling of entire groups of people, even convicted offenders, is a violation of 4th Amendment protections against governmental intrusion. Collecting a sample, they contend, amounts to a search and seizure, and should be carried out only with a warrant.

“There’s absolutely no problem with a dangerous sex offender who is suspected of yet another sex offense of having his DNA taken--against his will, if necessary--so long as there is probable cause,” said Massachusetts public defender Benjamin Keehn, who represents several inmates in a challenge to the state’s sampling law; the group lost its case before the state Supreme Court last year but is appealing. “But as soon as you start talking about groups of people, you’re on a very slippery slope. What about people on welfare? Maybe we should all be databanked at birth.”

In Britain, which has far less stringent privacy laws than the United States, some jurisdictions test people upon arrest--an idea being considered in many states but discouraged by the DNA Commission, at least for the moment, because the backlog would only grow that much faster. Entire communities in England have been sampled in the hunt for a murderer or rapist.

Hand-held DNA scanners for instantaneous typing, scientists say, are perhaps a decade away.

Money Needed to Clear Big Backlog

Even with tough ethical questions yet to be answered, though, testing of the most dangerous criminals and the clearing of the backlogs could be completed in a matter of a few years, experts say, but only if lawmakers come up with the money to send the samples to private labs.

President Clinton signed a bill in November that will dedicate $15 million to reducing the backlog. Putting the entire national databank in order will carry a price tag closer to $500 million, according to the best estimates.

In the meantime, many in law enforcement, including the FBI, are watching the case of the girl in Milwaukee. “Someday, somewhere, we hope this guy comes up in somebody’s databank,” Gahn said. “And we’ll nail him.”