Criminal Sexual Conduct in Wayne County Michigan - walk into the Frank Murphy Hall of Justice (the Criminal Division of the Wayne County Circuit Court) on any given day, open the door to any of the 20 or so trial courtrooms, and there's a good chance that the trial or hearing in progress you'll observe relates to a charge of Criminal Sexual Conduct (CSC for short). At Prain Law, PLLC, a Wayne County CSC Defense Attorney, we're no stranger to this arena - we specifically concentrate our practice on defending those accused of Criminal Sexual Conduct.
As Metro Detroiters, we've been flooded for the past few years with news stories about the tragedy of the many untested, backlogged Rape Kits from the City of Detroit that have sat around for years. Some of these news stories, like the March 15, 2018 Detroit News article "Last of Detroit Rape Kits Recovered in '09 to be Tested" grip us emotionally with the story of a victim being attacked, and then leave us feeling the shocking injustice as we picture the Rape Kit that could bring their attacker to justice sitting there collecting dust somewhere in a hot storage locker while the evidentiary value decays over time.
Now, if we hit the "reset" button for a moment, we may just see another story of injustice unfolding from the above scenario. Imagine that it's 2019 and you (yes, you, or someone you know well) receive a call out of the blue from a Detective with the Detroit Police Department informing you that you've been fingered as the assailant in a Criminal Sexual Conduct case form 1999. You eventually learn that this is the result of the recent testing of a biological sample from an old, previously untested Detroit Rape Kit that the Michigan State Police and some private laboratory in Utah are claiming matches your DNA. You don't have any idea what you're talking about. All you know is that you didn't commit any Criminal Sexual Conduct crime, Sexual Assault, Rape, or any other violent crime - ever. Your DNA was previously in the FBI run CODIS system (Combined DNA Index System) from an unrelated, non-violent felony from your younger days that was later expunged, and now they're asking you to come to the Detroit Police Department for questioning, and for your permission to take a new DNA sample from you for confirmatory testing. Long story short, you could be a victim yourself, because you are now staring down the barrel of a wrongful conviction.
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RELATED: Now, your DNA is taken and put in CODIS, even if you're innocent.
That story would be an injustice, too, wouldn't it? In your mind, that's a nightmare tragedy every bit as news worthy as an unsolved rape itself. Well, this is the other side of the coin of the untested Rape Kit tragedy, and it's exactly what is happening to some innocent men as the last of these cases are tested and Prosecutions based on these tests are ramping up in Wayne County. And if you're a person who isn't quite able to appreciate that alleged DNA evidence isn't perfect - especially decades old and degraded biological evidence - we must all at least remember that every person accused of a crime is presumed innocent unless and until guilt is proven in a Court of law beyond and to the exclusion of every reasonable doubt, As a Criminal Sexual Conduct Defense firm, we're getting more and more calls about these pending CSC charges in Wayne County every day. Here's why...
"In every CSC case based in whole or in-part on DNA evidence,, at a bare minimum, the Defense Attorney needs to do these two things: 1) obtain the "underlying data" by making a specific request; and 2) privately retain or ask the Court to appoint a qualified DNA expert witness to review the underlying data and testify in Court if necessary."
The story widely reported in the media is that the Detroit chapter of this nationwide epidemic is that apparently an Assistant Prosecuting Attorney from the Wayne County Prosecutor's Office apparently "found over 11,000 untested Rape Kits in an abandoned evidence warehouse." To those who know anything about DNA and other biological evidence and its degradation over time, particularly, in hot or otherwise unideal environmental conditions, the words "abandoned evidence warehouse" should strike a disheartening chord to say the least.
RELATED: Click here to see The Detroit News August 19, 2019 article "10 Years in, Detroit Rape Kit Crisis Vanquished."
Nevertheless, a group funded by the National Institute of Justice was formed to address the untested, backlogged Rape Kits. Recently, the Michigan State Police (MSP), which conducts the biological and serological evidence testing for law enforcement agencies across the State of Michigan (not just cases the MSP investigates themselves), received a grant of funds to address the backlogged Rape Kits and other biological evidence. This is in part due to the Sexual Assault Task Initiative, a grant program of the US Department of Justice, Bureau of Justice Assistance, which, according to their website, has provided nearly $43 Million in various grants such as this nationwide.
In response to the grant, Kym Worthy and the Wayne County Prosecutor's Office formed the Wayne County Sexual Assault Kit Task Force, or WCSAKTF, to handle cases arising out of these backlogged, untested Sexual Assault Kits (SAK) in Detroit. According to Kym Worthy as quoted in a recent Michigan Radio NPR news article, all of the backlogged Detroit Sexual Assault Kits have now been tested, but she says there is still "a long way to go." That same article, dated August 14, 2019, quotes Wayne County Prosecutor Worthy as stating that they have "investigated and closed over 3,000 cases" based on the new testing of the Kits, they've obtained 197 convictions, and another 588 cases are either still under investigation or have "yet to be tackled."
Due to the nature of the allegations in these cases (where the victim often does not know their attacker), and the presence of DNA evidence, most of these cases imply some form of sexual penetration or attempted sexual penetration, rather than just sexual contact. As a result, many Wayne County Criminal Sexual Conduct charges from the untested Detroit Sexual Assault Kits are charged as Criminal Sexual Conduct 1st Degree, MCL 750.520b, Criminal Sexual Conduct 3rd Degree, MCL 750.520d, and Assault With Intent to Commit Sexual Penetration, MCL 750.520g, rather than as Criminal Sexual Conduct 2nd Degree, MCL 750.520c or Criminal Sexual Conduct 4th Degree, MCL 750.520e, which are based on sexual contact but not penetration.
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And we believe this whole effort is a good thing for justice - assuming that the correct assailants are being prosecuted. At Prain Law, PLLC, we handle Criminal Sexual Conduct cases and concentrate specifically on vigorously defending those accused of CSC, and it's a natural thing for us to do because we believe in our cases and our clients. This is the justice system, and we're all part of the effort to ultimately do what is right. We all have parents and brothers and sisters and children, and we want them to be safe in our Metro Detroit communities. The various groups out there on all sides of these types of sociolegal issues, we're just approaching from different perspectives. We don't hate the Prosecutors. We like and honor many of them for the skilled trial lawyers they are. We are with the Prosecutors in that we all seek justice - we simply have different beliefs about what group of people in the legal system needs the most protection in order to best elevate the overall effectiveness of our system. It's complicated...
And so is DNA evidence and other scientific evidence in Criminal Sexual Conduct cases, and it is far from perfect. Don't believe that a case of backlogged DNA can lead to a wrongful conviction? Just ask Josiah Sutton and the many others like him. DNA evidence doesn't get better over time; it degrades over time. Not to mention, where the evidence is decades old and was left "abandoned," there are some real concerns with "chain of custody" - before the Prosecution can introduce any piece of physical or biological evidence in trial, they must prove who had custody and control of it, when, and what they did with it. The more question marks in the chain of custody, the more opportunity for an injustice result.
Here, not only do we have the issue of this critical evidence being left for decades in an "abandoned" warehouse of all places, you should also be aware that while the Michigan State Police usually do all DNA testing in-house, for the backlogged, untested Detroit Sexual Assault Kits, much of the testing has been outsourced to private labs, such as Bode Cellmark in Virginia and Sorenson Forensics all the way out in Utah, where they have been conducting the initial steps of the polymerase chain reaction, or PCR, method. Plus, are you getting the whole story? Were there DNA, fingerprint, or other biometric or biological evidence samples tested from the crime scene that did NOT match any known person? If so, are you being told that, or could it be concealed or disregarded? There are endless possibilities, and we just don't know until we investigate.
Finally, just because the Michigan State Police call something a "match" to your DNA or any other person's DNA in their Laboratory Report (consisting of only a few pages), we all have to realize that that is their expert opinion - their ultimate conclusion. Yes, there are circumstances where their opinion on a match can be very solid. Sometimes, the MSP Lab will call something a "match" that isn't a guaranteed match, but rather a likelihood statistic stating that in their opinion, it is X amount of billions of times more likely that it was your DNA than some unknown contributor. How do you know the difference? Your Defense Attorney has to understand these things! Many lawyers, even ones who have been practicing for a long time but lack the highly specialized knowledge that CSC cases require, believe that the final MSP Laboratory Report provided by the Prosecutor in discovery is all there is to be had. In truth, there are hundreds of pages of "underlying data" - complex charts, graphs, electropherograms, lab technician notes, and more. But the Prosecution is NOT going to had these over unless your CSC Defense Attorney makes a specific request.
In every DNA case,, at a bare minimum, the Defense Attorney needs to do these two things: 1) obtain the "underlying data" by making a specific request; and 2) privately retain or ask the Court to appoint a qualified DNA expert witness to review the underlying data and testify in Court if necessary. The complexity of these graphs, charts and data is beyond the experience of almost any Attorney alone. Your freedom and future could hinge upon one tiny, handwritten note buried in a DNA chart or report.