Even with DNA, cases don't bring convictions
Many Baltimore cases have crumbled, Sun analysis shows
By Justin Fenton
The Baltimore Sun
December 28, 2010
Six times police had locked up Jaydee McNeil as a suspect in sexual attacks in Baltimore. Only once was the 31-year-old convicted, and his plea deal allowed him to walk out of the courtroom without serving prison time.
Detectives believed the seventh time would be different. This time, police had DNA evidence, recovered from a sweat shirt left at the scene 11 years earlier.
That " genetic fingerprint" has become the gold standard of the criminal courtroom, propelled to prominence by its featured role in popular television crime dramas. In Baltimore, jurors have taken an increasingly dim view of cases that lack DNA or other key forensic evidence, and prosecutors often must caution that not every trial produces damning genetic traces.
Yet even when it does, prosecutors still struggle to win guilty verdicts in cases involving sex crimes, an analysis by The Baltimore Sun reveals.
Of the 85 sexual assault cases involving DNA that resulted in criminal charges over a three-year period in Baltimore, nearly 40 percent have been dropped. About 26 percent resulted in a conviction, and the rest are pending, according to an analysis of court records, along with a sampling of police investigative files obtained through the Maryland Public Information Act.
In McNeil's case, prosecutors dropped the charges because they say the alleged victim did not want to testify — an issue that has caused other sexual assault cases to crumble in Baltimore.
Sex crimes are notoriously difficult to prosecute, even with DNA evidence, and problems can be heightened in years-old, " cold" cases. Many victims who initially indicate that they will testify change their minds as court dates near. Multiple postponements and a choked court docket mean that few cases go to trial, and plea deals bring relatively little prison time. Juries, meanwhile, are reluctant to believe the testimony of accusers who have criminal records.
"The court process isn't designed to make this easy for the victim," said Adam Rosenberg, executive director of the Child Abuse Center and a former city sex offense prosecutor. "We do a tremendous job protecting the rights of defendants, but the victims are thrown around. That's why some of these cases, no matter how good they are, end up getting pled out or dropped."
At best, law enforcement officials say, a DNA match can help prove that sexual contact took place. City prosecutors declined to discuss cases in detail, but said in a statement that the participation of an accuser in a case is required by the U.S. Constitution, with "no exceptions." Too often, they say, victims choose not to participate.
"The policy of the Baltimore City State's Attorney's Office has never been to force a survivor of a sexual assault to testify," the office said in a statement. "The state must have enough evidence to prove all elements of the crime of sexual assault and a [DNA] hit alone is not enough."
Baltimore's handling of rape cases came under fire this year, when a Sun investigation showed that the Police Department led the nation in the number of allegations that detectives had ruled "unfounded." City officials launched an audit that found that more than half of such cases over an 18-month period had been wrongly discarded by police.
The problem, police said privately, was partly an outgrowth of prosecutors' reluctance to try tough cases. The department declined an interview to discuss how police assemble charges, but said in a statement that DNA should be enough to move forward in some cases.
"Sometimes it can be the sole piece of evidence that makes or breaks a case and sometimes it alone is not enough," the statement said.
Meanwhile, defense attorneys say that sexual assault charges are too often filed before the facts have been established.
"In some ways, charging is their way of moving forward and trying to collect more evidence," said Allen Wolf, a public defender who worked in the state's forensic sciences division. "They have smoke, and by pushing ahead with the charges maybe they find out there's fire. And sometimes they're finding out there's not."
Digging into cases
The use of DNA evidence has gained momentum in Maryland in recent years. With increased funding from Gov. Martin O'Malley beginning in 2007, the state began clearing a backlog of more than 24,000 untested samples and later expanded collection of DNA to include all people charged with felonies. That work led to a flood of DNA matches to open cases — many that had long fallen off the list of priorities for detectives.
New leads took city detectives to Mississippi to re-interview one woman; another was located in California. All were tested for their recollection of the incident, shown photo lineups and asked whether they would cooperate with a prosecution.
There have been some successes as a result of that effort. Among those convicted, two people have received life sentences, and others have received an average of 20 years behind bars:
•Investigators were able to track down a 49-year-old man who raped an elderly Roland Park woman in her home in 2007, a crime that resulted in a sentence of life plus 35 years. Roger Ervin's DNA match cleared another man who had been wrongly charged.
•Last week, Gregory Brown, 43, was sentenced to life with all but 30 years suspended after being found guilty of a first-degree sex offense in a 2004 attack. A second rape charge, in which he is accused of forcing sex at knifepoint in a Mount Vernon alley, is pending.
•Orville Cooper, 27, was charged in four rapes that police say occurred over a span of a few months in 2006. He has been convicted in one of the cases, the rape of a Fort Meade cook who missed the bus in West Baltimore and accepted his offer of a ride. The other cases are pending.
At Cooper's trial, prosecutor Katherine Moxley Smeltzer told jurors, "The question is, who did it? It's not a question. Science is going to tell you who did it."
The victim's tearful testimony helped persuade jurors to convict Cooper, who is appealing a 70-year sentence handed down by Circuit Judge Barry Williams.
But the flood of new DNA information initially overwhelmed detectives, and when two officers assigned to the cold case squad retired, the matches began to pile up — some two years old or more. The accusers, often transient or troubled, were difficult to find.
Cases that progressed, in turn, often brought challenges for prosecutors. Few victims were able to identify their attackers. Some said they never got a good look to begin with; others said they had trouble remembering because of the time that had passed.
Many were content to put the trauma behind them, choosing not to reopen old wounds even with the prospect of ensuring that their attacker would be punished.
"They were going to dig into my background," said a woman who reported an attack in Park Heights in 2000. "I gave them everything. [When they dropped the case] I was disappointed, and then I was scared. I didn't want to go through all this."
The Baltimore Sun does not identify alleged victims of sex crimes.
According to police records, detectives sought charges only if accusers agreed to work with authorities. But prosecutors said some apparently had a change of heart as their cases moved through the legal system, and they cited a lack of cooperation as the most common reason for shelving cases. In some instances, charges were dropped within weeks of being filed.
"It's troubling to hear cases are being dropped, particularly that quickly," said Jennifer Gentile Long, a former Philadelphia district attorney and director of AEquitas, a consulting and training program for prosecutors in cases that involve violence against women. "Sometimes the cases are hard, but that's what the offender is counting on. … We should have a system where people want to engage."
While Baltimore prosecutors have held to a maxim of "no victim, no case," critics say that oversimplifies the options and misinterprets the section of the Constitution that deals with suspects' right to confront witnesses.
A policy of dropping cases unless a victim is willing to testify is "nonsense," said Richard D. Friedman, a University of Michigan law professor who writes and blogs about the confrontation clause of the Constitution. An accuser's documented injuries, for example, could suffice to prove that sex was not consensual, he said.
"The fact is, in many cases there can be sufficient evidence for prosecution without testimony of the victim," Friedman said. "Sometimes it's a matter of prosecutorial choice."
Still, experts say that pursuing a sex case without the cooperation of the accuser is difficult and rarely occurs.
Breakdowns
While friction between high-level city police and prosecutors is well-documented, Joseph Peters, a former Baltimore sex crimes detective, said the personnel investigating sex offenses in the two agencies have worked well together. He did not fault prosecutors for breakdowns in court.
"There were some cases where we had all kinds of evidence — on the outside it looked like the perfect case — and then when you try to take it to trial it would go downhill," said Peters, who retired from the Baltimore force in 2008 and now works for the Harford County sheriff's office. "We'll still try to give it a shot, but sometimes there's not a whole lot more we could do."
A woman who alleged that she was attacked in Park Heights on Aug. 30, 2000, said she had ordered a pizza for her family and was headed home from work when she was approached by two men who dragged her to the rear of a building in a residential area and raped her at gunpoint.
"The place I was walking through was nice and bright, but they snatched me in the alley," she said in a recent interview. "They beat me with a gun. … I'll never forget it."
A forensic examination at the time confirmed that she had suffered injuries. The woman acknowledges that she was addicted to crack cocaine during that period and occasionally solicited sex for money, but said neither was the case that night. The man linked to the case years later through DNA evidence, meanwhile, had no prior record of sexual assault but had a lengthy history of drug arrests.
She twice picked him out of a photo lineup after detectives visited her following the new forensic match, but said she was uncertain it was the same man.
"People's faces change. He looked bigger," she said.
Rosenberg of the Baltimore Child Abuse Center said cases rarely present an "ideal" victim, making prosecutions difficult. "If [jurors] don't like the victim, they are reluctant to convict the defendant," he said.
In the Park Heights case, prosecutors engaged in plea negotiations with the suspect's attorney, Tony Garcia, for months. After six postponements spanning more than a year, the case was dropped.
Garcia said his client vigorously maintained that he was innocent. And the defense attorney says prosecutors withheld key information about the woman's past until the eve of trial.
"Almost two years go by before we're informed the victim has a history of trading drugs for sex," Garcia said. "When you get an explanation like that, it steals the thunder out from the potency of that DNA evidence."
Defense attorney Margaret A. Mead said false allegations are more common in sex cases than in any other type of crime. Some accusers might not want to go forward because their accusation was false from the start, she said.
"Police are quick to charge, and the state's attorney's office is stuck filtering out all this stuff," she said.
Cases rarely follow a predictable narrative. One woman, for example, called police with a story that seemed too wild to believe.
The recovering heroin and cocaine addict, who suffers from bipolar disorder and schizophrenia, said a man had broken into her home in the early morning of July 2, 2004, beat her with a loose floorboard and raped her. She said the same man returned days later, this time "inserting an object" that required surgery to remove.
Detectives, who in case notes seemed perplexed by the circumstances and the woman's erratic behavior, marked the case "unfounded" and the investigation was shelved.
But years later, DNA linked a 30-year-old man named Terrance D. Thomas to the crime scene and police obtained a warrant. According to detectives' handwritten notes, Thomas, who was serving a 10-year sentence for drug dealing in Baltimore County, acknowledged having "rough sex" with the woman, but said she had traded sex for drugs.
Detectives seemed delighted with his admissions, in one instance writing "Yes!" in the margins of their notes. But prosecutors dropped the case in District Court, 28 days after Thomas was charged.
The woman said in a recent interview that she told prosecutors she didn't want to testify. "I don't want to end up back in the psych hospital — it's a bad place to be," she said.
Long, the former prosecutor who consults on sex offense cases, said prosecutors need to balance "a respect for the victim's autonomy and really trying to explain to her how important his or her testimony is."
A city task force that has been re-examining the Baltimore rape cases that initially were deemed unfounded also plans to examine the court process.
The Sexual Assault Response Team, which includes police, prosecutors, the lead forensic exam nurse at Mercy Hospital and victim's advocates, has been reviewing the city's response to sexual assaults with renewed focus since last summer. Mayor Stephanie Rawlings-Blake ordered the panel to review cases after the Sun investigation.
Sheryl Goldstein, director of the Mayor's Office on Criminal Justice, said the court process is on the group's agenda: "We will be looking at best practices for handling … sexual assault cases, from beginning to end."
DNA is not enough
The most recent charges against Jaydee McNeil followed a pattern familiar to sex crimes investigators: A young woman walking alone late at night along McCulloh Street in West Baltimore in 1997 was dragged into a vacant house by two men. Though she had been unable to identify her attackers, one left behind a sweat shirt, according to investigative documents.
According to the case file obtained under a Public Information Act request, she told police that the men beat her with a wooden stick and dropped her on her head. They forced intercourse, she said, then stole her high school ring, a watch with a sunshine face and her pager.
Photographs documented injuries to her back, head, lip, thighs and hands, records show. Experts say such serious injuries go a long way toward rebutting any defense contention that sex was consensual.
In October 2005, authorities were notified that DNA found at the crime scene had been matched to McNeil, who had been charged with rape or attempted rape six times between 1995 and 2000. In each case, records show, charges were dropped with the exception of a 2000 guilty plea to a lesser charge of third-degree sex offense. One of the dropped cases, from 1995, appeared to have been expunged from his record but is included on printouts of his rap sheet contained in detectives' case notes.
For the third-degree sex offense conviction, he received a seven-year sentence with all but seven months suspended and was required to register as a sex offender. He was sent to prison a year later to serve the balance of that sentence after twice violating probation.
Charges would not be filed in the McCulloh Street case until March 2008, after detectives tracked down the woman and showed her a photo lineup. It is not clear from case notes whether other attempts had been made to find her in the more than two years since police had learned of the DNA match.
McNeil pleaded not guilty to the new charges. In a telephone interview, he said that the matter is behind him and declined to comment further.
Police said this summer that the charges were dropped because the woman could not describe the suspect. They said they were angry that the case had not received special attention, given McNeil's previous arrests. Prosecutors, meanwhile, said the woman did not want to testify.
Reached at her North Baltimore home, the woman, now 46, confirmed that, acting on recommendations from her therapist and her husband, she had declined to go forward. But she has a different recollection of the circumstances.
"They said they didn't need my case, they had another against him," said the woman, who believes that McNeil is in prison.
But McNeil was not charged in another case. Though police say they indeed have a second DNA match connecting him to an open case, they have not been able to locate the alleged victim.
And while the woman he was accused of raping in 1997 believes he is behind bars, McNeil, according to the Maryland Sex Offender Registry, lives in a Northeast Baltimore duplex. He is listed as "compliant" with the state's requirements for sex offenders.
http://www.baltimoresun.com/news/maryland/baltimore-city/bs-md-ci-dna-outcomes-20101228,0,4158660,full.story
