Despite audit Ky. State Police don't know how many rape kits remain untested; 3,090 identified kits still await testing

03/13/2016 05:45 AM

Splashed across headlines and television screens last year was the number 3,090 the figure represents thousands of survivors of rape who are awaiting justice in the criminal justice system, but Pure Politics has learned that number could be but a fraction of the actual problem.

Complicating the situation for victims, advocates, police, prosecutors and state lawmakers are long procurement wait times, systemic failures and financial hurdles at every turn.

In April of 2015 former Auditor Adam Edelen launched a review of untested rape kits in the state. The audit came to Edelen by way of a Senate Joint Resolution 20 filed by Sen. Denise Harper Angel, which called on Edelen’s office to count the number of pending kits in the hands of law enforcement — a task which wouldn’t receive full buy-in from some agencies.

Edelen and his team went a step further than a simple audit, holding stakeholders meetings in an attempt to find reasons and resolutions to the underlying causes of why some kits never make their way into the crime lab for testing.

By late September 2015, Edelen revealed that 3,090 untested sexual assault evidence kits exist in the state. Those untested kits were supposed to be analyzed as part of a $1.9 million grant the Kentucky State Police received from the Manhattan (NYC) District Attorney’s Office.

Those kits remain untested, and there are more untested kits being “found” in the state, according to the head of the state police crime lab.

Waiting for justice

The Kentucky State Police (KSP) submitted a request for proposals on a contract to conduct off-site analysis of kits that have been found and submitted. That contract was posted online on February 10 and closed on February 17, 2016.

There are currently two out-of-state bidders on the contract, according to KSP Forensic Laboratory director Laura Sudkamp, who said the agency is evaluating the proposals and are trying to assign the contract before the legislative session expires.

“We are hoping for April 1 — I am praying for April 1— we need to get these kits out the door,” Sudkamp said in an interview with Pure Politics.

Attorney General Andy Beshear says the delays in testing are “taking far too long.”

“These people have waited for justice for so long, some of these kits are very old,” Beshear said. “I know KSP is working through the system and we do have a system that you have to work through in state government that tries to make sure that contracts are awarded on their merit and that’s important, but we have got to get this process started.”

The delay in testing of the known kits are but one of several problems state officials are beginning to be made aware of in this on-going story, including the possibility of an expansive number of additional untested kits.

Previously unreported kits which were not captured in the audit are beginning to be identified, but Sudkamp says the forensic lab doesn’t know how many more exist in the state. Officially KSP estimates 3,300 kits, but additional cases found in Louisville are already over exceeding those expectations.

“We really don’t know how many are out there,” Sudkamp said. “I have no idea.”

Sudkamp told Pure Politics that Lieutenant Carolyn Nunn with the Louisville Metro Police Department’s Special Victims Unit recently informed her of “an additional 400 cases they’ve gone back and found,” and she says there could be even more than that just at LMPD.

Part of the reason for the newly discovered kits, Sudkamp said was collecting agencies not submitting cases if they did not have a victim willing to take the case to trial

“Louisville (Metro Police) originally when they had to do the audit – they were basically calling victims and saying ‘if we submit your kit would you go forward’ and if they said ‘no’ then they didn’t count that kit.”

Since that time LMPD and KSP have “seen the light,” she said.

“It took us a while to come to this realization too,” Sudkamp said. “I’m not just laying that on Louisville.”

By direction of the crime lab there was a period where they were only working cases that had a chance to go to trial. If there was no case the process was never completed.

“There was a while if you told us a kit was coming in, and if it didn’t have a suspect — then the kit was coming in to see if we could get it into the database and identify the offender through the database,” she said. “Then, other than that, if it came in suspect we were working it for court purposes … so if you have a suspect we need the DNA to compare it to.

“So, we would get it all the way up to where we would identify semen in the kit or not,” Sudkamp continued. “Notify the agency if they hadn’t submitted a standard and say ‘you have to submit a standard for us to compare it to or were going to kick it back it to you’ … we’d make three or four attempts to get a hold of it, to get a standard submitted and if they didn’t then we’d kick it back and write the report up as please resubmit with a standard for comparison.”

A majority of rape kits which were sent back to collecting law enforcement agencies have not returned to the crime lab for final collection, Sudkamp said and thus ended up unreported in the audit.

“Those kits would end up going back, and I hate to say it, but 60 to 70 percent of the time those kits never came back,” Sudkamp said. “So, were asking for those kits to come back.”

Currently the crime lab is going back through their records in an effort to track down kits that were sent back to reporting agencies. They’ve also sent out a newsletter detailing the importance of collecting the kits so DNA can be run through the FBI’s Combined DNA Index System (CODIS) to match against potential suspects.

“We’re starting to get that information,” General Beshear said of learning about the additional untested rape kits coming forward.

“In addition to the 3,090 the audit counted there are other kits that people are discovering or had maybe classified differently, and all it says is that it is as important of a problem as we thought it was,” Beshear said. “Three-thousand alone is a huge problem…I don’t look at these as kits, as a box on the shelf, they represent a victim of one of the most horrific crimes — that had the courage to come in and go through one of the most invasive tests, sometimes five-hour tests.

“The test itself violates these victims, but they had the courage to do it. Why? So that they could seek justice against their perpetrators,” Beshear continued. “So, we have 3,000 or 5,000 or more instances where we have not sought justice for these people and we absolutely have to do it — it’s our moral obligation.”

Additional Costs

The $1.9 million grant Kentucky obtained by way of the Manhattan District Attorney’s Office may not address all of the costs associated with justice for victims represented in the untested rape kits. Kentucky’s forensic laboratory says Kentucky’s grant was written with the intent of testing 3,300 untested kits — 210 more than the audit first uncovered.

With out-of-state testing, and the potential to identify new suspects and bring new cases to prosecution brings into question the cost of bringing into the commonwealth out-of-state analysts to testify before a jury.

Kenton County Commonwealth’s Attorney Rob Sanders has never had to bring in an out-of-state analyst for any prosecution of a rape case he has done, but he said any Commonwealth’s Attorney bringing an outside analyst would have to have that approved through the Prosecutors Advisory Council.

The cost, he said on average for out-of-state analysts are $2,000 to $5,000 per witness, which would include witness fees and travel costs.

“Where it becomes very expensive, very fast is when there are multiple persons in the chain of custody from the outside vendor,” he said, adding that prosecutors are concerned that if KSP outsources a large number of kits for testing the cost to prosecute will skyrocket.

“I think the expert witness fund for every Commonwealth’s Attorney in Kentucky is only $40,000,” Sanders continued.

Fans of the Netflix show ’Making a Murderer,’ know that in criminal cases prosecutors have to establish a chain of custody for each person taking possession of evidence. Everyone who handles the kits has to be called as witnesses in a criminal prosecution, Sanders said.

The Kentucky State Police is “very good” about the number of people they insert into a chain of custody so they can keep costs down, Sanders said. Outside labs on the other hand, can be a problem.

“Private labs that don’t always deal in criminal prosecutions aren’t as guarded about how many persons they let into a chain of custody, so if a lab manages to put four or five people into the chain of custody, even if only one person did the testing, we have to fly in all four or five people,” Sanders said.

Of the two companies who have submitted bids, Sudkamp said KSP is still negotiating the fees for prosecution.

The Kentucky State Police worked into their request for proposals a maximum number of three analysts which the state would pay to testify, “Even if it takes five to testify,” Sudkamp said they’d only pay for three analysts.

Sanders says that language adds only more confusion to the situation.

“That’s not exactly crystal clear … it doesn’t address what happens if there’s six people in the chain of custody and KSP only has to pay for three, what’s our recourse if the company says, ‘you pay for three, you only get three, and were not sending you six?’” Sanders said.

The out-of-state lab the state police forensic lab often deals with is in Utah, Sanders said and there’s not much a prosecutor could do to demand someone 1,600 miles away come to the state to testify.

“KSP, I think is putting forth a very good faith effort in trying to work out these complications but despite everyone’s best efforts there’s not an easy answer,” Sanders said.

Attorney General Beshear says he appreciates Gov. Matt Bevin’s budget addressing the issue and sending the dollars requested, though “what’s missing” are the dollars for prosecutions. Beshear’s office is working with the House in addressing the prosecution costs in their version of the two-year spending plan.

“I want to make sure, and I’ve been working especially with the House, to try to make sure there is a funding mechanism for this — that the moment we get a hit we are ready to go,” Beshear said. “People have waited long enough, and I tell you what, my office is committed to this — we are committed.

“If a local prosecutor doesn’t want to take a valid case we’ll do it out of this office,” he continued.

Tracking the dollars, disparity in pay

Gov. Bevin’s budget proposal has earmarked $4.5 million at the request of the Kentucky State Police. The proposal would appropriate $1.1 million in Fiscal Year 2016, $2,013,300 in Fiscal Year 2017, and $1,466,400 in 2018, according to figures from the Justice and Public Safety Cabinet. The money is coming in the form of a sweep from the Kentucky Law Enforcement Foundation Program Fund.

That money will be spent on a number of things, from equipment to additional space within the lab for DNA technicians and additional personnel, according to Laura Sudkamp with the state police.

If approved this session, Sudkamp said KSP will spend $2 million in new equipment, $150,000 a year for additional space, $325,000 a year in additional chemicals used in testing, and the rest would be spent on staff.

Currently, there are 15 people who work on the DNA side of the state police forensic crime lab. Sudkamp has had to do a fresh round of hires to replace personnel for regional labs in Western, Northern Kentucky and in Jefferson County — those hires are set to finish training in a four months.

When everyone from those labs is on the staff the lab will be back to 20 people, and under Bevin’s budget they will add another 10 people to help tackle not only the rape kit backlog, but the 1,200 additional murder and other cases the lab faces. Sudkamp said it takes, on average, 200 days to complete a case.

Newly hired DNA forensic biologists go through about four-months, and then go on to do case work for a “little while” with supervised help, before tackling projects on their own. Over the course of training techs run many rounds of DNA chemical tests, which can add up.

The problem with bringing in new people is that the lab has become a training ground of sorts for other states.

Kentucky finds, trains and spends dollars on the chemicals for a technician to get up to snuff and then often, young biologists will leave the state to earn significantly more money at neighboring states or in the private market place.

A survey sent out by Sudkamp on Sept. 29, 2015 and obtained by Pure Politics shows many qualified technicians decline to interview because of the low salary available in the bluegrass.

Kentucky ranks 49th out of the 50 states in what forensic scientists earn, she said.

“In reviewing the salaries for entry level forensic scientists with no experience in the states surrounding Kentucky and their surrounding states, the salary range was between $53,000 and $77,000,” Sudkamp wrote in the report sent to her commander and human resources at KSP. “Kentucky’s entry rate is $32,042.40 with a 5% increase to $33,644.52 at the end of the one year probationary period.”

Sudkamp told Pure Politics that she has an analyst now who currently makes about $42,000 who applied for another job outside of the state that starts at $61,000.

“We need to be able to retain the current staff and be able to find 10 qualified analysts that will be able to come in for our low salary and retain them as well,” Sudkamp said of the additional biologists they’ll try and add if Bevin’s budget request stands.

Sudkamp says a lot of her staff are invested in the DNA lab, but she worries about new hires that can quickly move on and make much more. She has requested that the pay parity be addressed in the session as part of the budgeting process, but if it doesn’t come through Kentucky could find itself in a crippling situation.

“If they can’t get it into the budgetary session they have to get it in the next one or I will have a mass exodus,” Sudkamp said.

Beshear said that the issue is one that state leaders are aware of, and that they “do need to address.”

“While I don’t think we’ll be worse off with more people we won’t necessarily solve the problem without a parity in pay,” he said. “Just last year or the year before we solved this problem at the state level with transportation engineers, surely our citizens and their safety and protecting them from rape and sexual assault is as important as the structural integrity of our roads.”

The Democratic attorney general said he believed Bevin’s budget was trying to address “all of these issues,” so he doesn’t find fault in the first year Republican governor.

Legislation clears first hurdle

In Edelen’s audit he found that approximately 41 percent of Kentucky’s 389 law enforcement agencies reported that they do not submit all kits for analysis, and that most agencies lack clear policies for handling sexual assault kits in a timely manner.

Many of Edelen’s recommendations in the audit are found in Senate Bill 63 which would mandate that each law enforcement agency in the state will need to develop a policy and procedure manual related to sexual assault kits. The legislation, if passed, would also put time frames in place — mandating that every kit will be taken into custody from the collecting facility within five days; and that all kits shall be submitted to the KSP Crime Lab within 30 days.

The bill also mandates that every rape kit submitted to a law enforcement agency shall be tested; and that agencies are prohibited from destroying any sexual assault kit.

SB 63, also known as the Sexual Assault Forensic Evidence (SAFE) Act of 2016, which is also sponsored by Sen. Harper Angel, D-Louisville, includes a notification for victims on the progress and results of the testing of their kits. Harper Angel’s legislation also sets in place an average completion date for assault kit testing not to exceed 90 days by July 1, 2018 and not to exceed 60 days by July 1, 2020.

The bill cleared the Senate Judiciary Committee on Thursday with a unanimous vote of approval with a committee substitute calling for all kits collected prior to this bill and which were not yet tested are submitted to the forensic laboratory by January 1, 2017. The committee substitute also stipulated that the goals for average completion time are contingent on receipt of adequate funding.

Senate Judiciary Chair Whitney Westerfield, R-Hopkinsville, said the changes reflect that the House has yet to pass a budget and he wanted to ensure that the funding was there before mandating a timeline, which he thought is a great to have in the bill, and he would have liked it as a former prosecutor.

The committee substitute would also add additional accounting measures put in place to help victims, but Harper Angel said the major thing was flagging additional funding and tying that to the timeline.

“I think it will help us keep our eyes on the need for the funding of the crime lab,” Harper Angel said.

There are numerous agencies including KSP, the Kentucky Association of Sexual Assault Programs, the Attorney General’s office, the Auditor’s Office and state prosecutors paying attention to the need to fix what Edelen referred to as a “broken system,” they’re just going to have to put all the pieces together to get there with time running out in the legislative session.

“I think everybody has the best of intentions — it’s just a complicated subject,” Sanders said.

“Everybody wants the same outcome, but everybody brings a different perspective on what the hurdles are going to be to get across the goal line of improving the speed with which kits are tested.”

About Nick Storm

Nick Storm is the Anchor and Managing Editor of Pure Politics, the only nightly program dedicated to Kentucky politics. Nick covers all of the political heavyweights and his investigative work brings to light issues that might otherwise go unnoticed, like the connection between the high profile Steubenville, Ohio rape and a Kentucky hacker whose push for further investigation could put him in federal prison. Nick is also working on a feature length bio documentary Outlaw Poet: A documentary on Ron Whitehead. Follow Nick on Twitter @NickStorm_cn2. Nick can be reached at 502-792-1107 or nicholas.storm@charter.com.

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