Even with DNA, cases don't bring convictions

Many Baltimore cases have crumbled, Sun analysis shows

December 28, 2010|By Justin Fenton, The Baltimore Sun

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 DNAthat 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 testifychange 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:

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