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How to catch a rapist? Study finds Cleveland, Cuyahoga authorities failed to collect DNA from nearly 15,000 suspects over 7 years

The Plain Dealer  Cleveland logo The Plain Dealer Cleveland 10/23/2022 John H. Tucker, cleveland.com

CLEVELAND, Ohio – In early 2012, a 14-year-old girl was raped by a stranger in Cleveland Heights.

A rape kit captured a man’s DNA, but no match was found in the Combined DNA Index System, or CODIS, a sort of federal clearinghouse for DNA data that helps law enforcement identify suspects and match them with old and new crimes.

Three years after the unsolved Cleveland Heights rape, a man named Marquice Miller pleaded guilty to felony theft in Cuyahoga County. Per Ohio law, authorities should have swabbed for Miller’s DNA and sent it to the data system. That never happened, and Miller was put on probation.

By 2017, a Cleveland research team had aspired to locate Cuyahoga County suspects who eluded mandatory DNA collection following recent felony arrests. The team found Miller, still on probation, who provided a swab. His DNA matched the profile from the 14-year-old’s rape kit. In 2019, seven years after the crime, Miller pleaded guilty to rape and attempted kidnapping and was sentenced to eight years in prison.

Miller was one of nearly 15,000 suspects and offenders in the county who, in a seven-year span, should have been swabbed for DNA by criminal justice authorities but were not—a higher-than-anticipated glut of missed opportunities to solve cold cases, including murders and rapes, according to a Cleveland State University study published last month in the Journal of Forensic Sciences.

The study, launched in 2016 in partnership with the Cuyahoga County Prosecutor’s Office, analyzed arrest and conviction data captured from 2010 through 2016. It marks the first major effort to identify people outside the prison system who “lawfully owed” their DNA, according to the Bureau of Justice Assistance, the arm of the U.S. Department of Justice that assists state and local law enforcement, which funded the project through two grants.

“This was a much larger issue than what we initially thought it would be,” said author Rachel Lovell, the director of Cleveland State’s Criminology Research Center. “It was a widescale problem.”

The lapses, largely the responsibility of the Cleveland Division of Police, were the subject of a 2017 Plain Dealer investigation, which cited thousands. The full scope, however, was unknown at the time, posing a question the Cleveland State study now helps to answer.

The Prosecutor’s Office, which won Justice Department grants to fund the first-of-its-kind project, has used its findings to reinvestigate old crimes, leading to convictions like Miller’s. In the past decade, the office has become a national leader in identifying and prosecuting cold-case rape offenders, leaning on Lovell to oversee research support. The work has highlighted the crime-solving capabilities of CODIS, an FBI-managed index system that houses more than 20 million unique DNA profiles and works in two ways.

The first places a permanent identification tag on individuals who at one point entered the criminal justice system and were swabbed for DNA. If DNA turns up at a future crime scene or in a rape kit, law enforcement has an immediate lead if it matches with a CODIS profile.

The second profile type is much rarer. Here, the DNA isn’t linked to a known person, but to a crime, or crimes—sometimes called “John Doe” scenarios. Such cases, which often go cold, can be solved if law enforcement catches the offender in another crime, collects a DNA sample and generates a CODIS hit.

This second profile type weighed significantly in the Cleveland State study. After identifying 14,931 suspects who avoided DNA collection—what Lovell refers to as “misses”—her team went a step further.

In the five-year period ending this past June, the researchers, in tandem with prosecutors, located 3,069 of those individuals, who either remained in the justice system or had reentered it for something else. Prosecutors arranged for them to submit DNA samples by referring them to swabbing authorities.

That work resulted in 116 CODIS hits to crimes and crime scenes, most of which were cold cases; 27 indictments; and 13 additional pending investigations. (In several cases, the statute of limitations barred prosecutors from seeking indictments.) Nearly all the crimes occurred in Cuyahoga County, with rapes and sex crimes being the most common.

“Our study has proven that [collecting owed DNA] solves past crimes and solves future crimes,” said Mary Weston, an assistant county prosecutor and the project manager for the office’s Sexual Assault Kit Task Force, which formed in 2013 to address a massive rape kit backlog in the county.

Prior to launching the owed DNA project, “We had no idea what we were getting into,” she added. “It’s overwhelming how many people fell into that category.”

A national blueprint

Lovell’s research team located the individuals who owed, and ultimately provided, DNA samples through several “sweeps” of Cuyahoga County entities, including the jail, Common Pleas Court and probation network. Candidates for swabbing were limited to those inside the criminal justice system; once offenders exit the system, they can’t be compelled to provide DNA.

States differ dramatically on who is obliged to submit DNA, who collects it, and when it is collected. All states collect for felony convictions, but they differ on whether to collect for arrests. Some do for serious felonies only, while others do for low-level felonies, or even misdemeanors. Ohio began collecting for felony arrests in 2011.

Lovell says the study offers a blueprint for other Ohio jurisdictions struggling to collect DNA, along with other states considering new legislation. According to a National Institute of Justice-funded policy report published last month, mandatory DNA collection has been inconsistent across the country.

Populating CODIS with new DNA samples is “low cost, high stakes,” said Lovell. She and other forensic experts believe that the more robust the database, the more effective it is in solving crime.

“When you know a lot of offenders slipped through the cracks and aren’t in CODIS, it’s a disservice to survivors,” said Angela Williamson, the forensics unit supervisor for the Bureau of Justice Assistance, part of the Justice Department. “What this study has done has put numerical value to [owed DNA collection]. It’s qualitatively and quantitatively showed hard evidence.”

However, swabbing for DNA suspects upon arrest, when they are still presumed innocent in the eyes of the law, is not without controversy. That practice has been federally permissible in America since 2013, following a 5-4 Supreme Court decision, to the consternation of defense attorneys and civil libertarians. Many defendants are acquitted at trial; charges against others are dropped; and some arrestees are never even indicted. Yet their DNA, once collected, is a criminal flag against them, locked inside a federal vault.

“Most people would be offended to know that, if they were arrested for a crime they didn’t commit, and then found not guilty or had their case dismissed, their DNA would still be part of a criminal database,” said Cuyahoga County Chief Public Defender Cullen Sweeney, suggesting that the framers of the U.S. Constitution would condemn the Supreme Court decision. “By collecting DNA before there is even a trial, we are treating the innocent and the guilty the same.”

There are various mechanisms across the country that allow acquitted suspects to have their profiles sealed or expunged from the DNA database. In Ohio, such people must file a petition and wait for a statute of limitations to expire. Lovell says she is not a proponent of innocent people remaining in CODIS.

Police failures

The 14,931 misses captured by Lovell’s study were largely the responsibility of the Cleveland Division of Police, the county’s biggest booking agency at the time, though swabbing responsibilities also fell to the Cuyahoga County Sheriff’s Department and trial courts.

Between 2011 and 2015, the police hewed to a policy allowing arrestees to opt out of DNA collection in exchange for an obstruction of official business charge, a Plain Dealer analysis found. That report also revealed that in 2013 and 2014, the police averaged nearly 8,400 felony arrests a year, but only submitted about 1,800 DNA samples, on average, for testing. (Shortly after Lovell’s team finished its data collection, Cleveland police transitioned their booking and swabbing responsibilities to the Sheriff’s Department.)

Officials for Cleveland police and the county declined to comment.

Lovell’s team collected its data in two phases. The bulk came in the form of booking data provided by the Ohio Bureau of Criminal Investigation, as reported by Cleveland police and the Sheriff’s Department. A smaller portion represented conviction data, provided by prosecutors, covering the year-and-a-half period prior to the swab-upon-arrest mandate kicked in. Many offenders were missed not just by arresting agencies, but by the court system, as well.

Culling through the data was laborious, since many crimes, like domestic violence and drug possession, can be felonies or misdemeanors, depending upon the circumstances.

The project was the latest of a series of Justice Department-funded endeavors led by the Prosecutor’s Office to address cold-case rapes. In the past decade it has solved hundreds of those crimes—more than any other U.S. jurisdiction. During that time, Lovell has built the largest rape database in the country, she believes. Her research has confirmed that serial sexual assault offenders are more common than once thought, and sexual assault offenders are frequently linked to other types of crimes.

Ilse Knecht, the director of policy and advocacy for the Joyful Heart Foundation, a New York-based organization that combats sexual assault, domestic violence and child abuse, says Lovell’s work has been a “game-changer” in helping her persuade legislators across the country to fund the testing of old rape kits.

“Rachel takes a problem and gives you a number and concrete data to make policy arguments that change minds,” she said.

Though the numbers behind owed DNA are still complicated to many, Lovell underscores the urgency of the stakes.

“There is a victim behind all of these different hits,” she said. “Solving these crimes gives victims great peace of mind.”

©2022 Advance Local Media LLC. Visit cleveland.com. Distributed by Tribune Content Agency, LLC.

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