Two of San Diego’s top law enforcement officials remain at odds over how police should handle DNA evidence collected from victims of sexual assault.

During her 2016 run for city attorney, and now almost a year into her tenure, Mara Elliott has repeatedly called for the San Diego Police Department to send all sexual assault kits to the crime lab for analysis. She’s had multiple discussions with Police Chief Shelley Zimmerman, she said, to no avail. Zimmerman maintains that the department’s approach — to first determine whether the kit will provide useful evidence before sending it off the lab — is smarter and more efficient.

“You might say we have a professional disagreement,” Elliott said.

Elliott recently sent letters to Gov. Jerry Brown, urging him to sign legislation encouraging law enforcement agencies to analyze all sexual assault kits. Right now, there are roughly 2,500 untested kits in the San Diego Police Department’s evidence room, and between 6,000 and 9,000 untested kits statewide.

San Diego’s approach came under scrutiny in 2014 when a state audit found that three of California’s largest law enforcement agencies — the Oakland and San Diego police departments and the Sacramento County Sheriff’s Department — analyzed only about half of the kits they collected. While the audit concluded that the benefits of testing all kits was “unknown,” Oakland and Sacramento changed their approach, making it a practice to analyze all kits.

But just because a kit is analyzed doesn’t mean the resulting DNA profile can be uploaded to state and federal databases. If investigators aren’t confident a crime actually occurred, federal rules bar a DNA profile from being uploaded to the national Combined DNA Index System database. That is why the department does the investigative work upfront, said Jennifer Shen, manager of the San Diego Police Department’s crime lab.


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“By the time a kit gets to the laboratory [for analysis], it’s been vetted as a piece of evidence that’s meaningful, as a piece of evidence that could yield a profile that we would be able to upload into a database at a national or state level,” Shen said last year.

But some of the department’s untested kits come from victims deemed “uncooperative” by investigators. Advocates argue that even if a victim refuses to cooperate with prosecutors, a kit’s DNA evidence could identify a repeat offender, or solve a cold case. That is Elliott’s position.

“I have yet to hear a convincing explanation for why San Diego should not join with other cities in adopting a policy to test every rape kit that law enforcement collects,” she said. “The experience in other jurisdictions shows that the evidence in untested kits can prove valuable in solving cold cases and identifying serial rapists. That alone is good reason; removing sexual predators from the street should be among law enforcement’s highest priority.”

Zimmerman takes issue with Elliott’s suggestion that her department’s approach falls short.

“We always want the very best and to seek justice for our crime victims. Anyone who thinks we do differently is flat-out wrong,” she said via a spokesman. “I have personally invited our city attorney to sit down with our crime lab manager and our Sex Crimes Unit to help her understand our methodology. To this date, she has refused to accept that offer.”

The three bills Elliott’s pushing for would require law enforcement agencies to submit annual reports to the California Department of Justice explaining why individual rape kits weren’t tested, allow taxpayers to donate a portion their tax return to a fund to support eliminating rape kit backlogs and require law enforcement agencies to notify victims of the status of their kits.

In June, the San Diego City Council added a one-time expenditure of $500,000 to the Police Department’s budget for rape kit testing. A department spokesman said they’re using the money to buy equipment to improve turnaround time for testing the kits. Any remaining money will go toward testing unanalyzed kits, he said.

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    Written by Kelly Davis

    Kelly Davis is a freelance journalist focusing on criminal justice and social issues. Follow her on Twitter @kellylynndavis or send an email to kellydaviswrites@gmail.com

    9 comments
    Martin Eden
    Martin Eden

    The Sand Diego Chef of Police is practically alone among law enforcement leaders in her defiant stand against testing rape evidence kits and effectively shielding sexual predators from prosecution.  In other jurisdictions clearing rape kit backlogs results in convictions.  It is very, very unlikely that there is no useful evidence among the thousands of rape kits lying untested under the protection of this Chief. The Obama administration made funds available for clearing backlogs so the cost to San Diego of testing all of these kits is exactly $0.00.  The Chief can not know if there is important evidence among untested rape kits until they are tested. Her argument that she can divine the value of untested rape kits is absurd.  This Chief's incredible, indefensible, and unusual efforts to prevent San Diego's rape kit backlog from being cleared gives rise to suspicion.  Whomever is being protected by her campaign against testing rape kits, it cannot be imagined to be the citizens of San Diego.

    Langhorne Bond
    Langhorne Bond

    In my opinion the most controversial and questionable player in this debate in not Eliot or Zimmerman and the most problematic organization is neither the City Attorney's Office or SDPD. These honors should go to Jennifer Shen and the San Diego Police Crime Lab. My reasons for this go back to the publication of "Forensic Fraud" by Brent E. Turvey. 


    For those of you who are unfamiliar with the paper "Forensic Fraud" let me fill you in. Many law enforcement professions have stated that nothing in recent history has fundamentally shaken the faith that the US public has had in the integrity of law enforcement than this paper. Not even the Ferguson case or the events in Chicago. 

    "Forensic Fraud" examines and documents verified cases of fraud by certified forensic examiners in the US. The report makes it clear, fraud committed by crime labs and certified "experts" in forensic examination is rampant, out of control and has resulted in a shocking amount of false convictions. While forensic fraud occurs on many levels and places in the criminal justice system, one area clearly stands out as being the biggest offender. Specifically government run(usually state, county or municipal run) crime labs. In comparison private independent contracted crime labs are clearly better. The reason for this is clear, these crime labs are often connected or closely governed by the law enforcement organizations that benefit from the fraud. Jennifer Shen and the SDPD crime lab is in my opinion a perfect example of the central thesis of "Forensic Fraud." 


    I'll even go one step further, I'm going to point out what I believe to be a real example. The Stephanie Crowe disaster I believe was text book case of forensic fraud. If you remember Richard Tuite was unsuccessfully prosecuted for the crime because according to SDPD crime lab who originally examined his shirts did not find any DNA. As remember it was when the court forced the DA to hand over Tuite's shirt for testing from independent crime labs that three drops of Stephanie's blood was found on Tuite's shirt which forced the DA to drop their case against Stephanie's brother. 


    One more thing to consider. In the introduction to "Forensic Fraud" Bren E Turvey states that the events that led to "Forensic Fraud" originated in good ole San Diego. The the Chair of the Forensic Science program at National University in San Diego, California plagiarized a paper Turvey wrote as a graduate student. The only thing the Professor changed was the name of the author of the paper.

     

     

    Scott Gauss
    Scott Gauss

    Mara Elliott is a breath of fresh air.  She gets right to the point with her opinions.  Could she be a potential District Attorney that would reduce the terrible influence of politics in the DA's office?

    lorisaldana
    lorisaldana subscriber

    It's also quite possible that Sheriff Bill Gore, SDPD Chief Shelly Zimmerman, Mayor Kevin Faulconer, former DA Bonnie Dumanis and current DA Summer Stephan are worried that changing over to these new, widely accepted testing protocols will expose some unpleasant facts.

    Specifically: that previous protocols re:discretion with regard to testing sexual assault evidence kits (SAKS) may have resulted in serial rapists and other violent criminals being set free and harming others. Suspects may also have been allowed to plead to lesser charges to avoid being investigated for related crimes that could have resulted in harsher penalties.

    For one recent example of a similar situation, where a person who committed abuse against a spouse was released, see the outcome here: http://www.sandiegouniontribune.com/news/politics/sd-me-dumanis-record-20170906-story.html

    Chris Brewster
    Chris Brewster subscribermember

    This is a great point. Normally, if the City Council funds a program, department directors are happy to implement. The reason for resistance in this case has made no sense to me, until reading your comments.

    Oscar Ramos
    Oscar Ramos subscribermember

    A disagreement of this sort with the police chief is why the search for her successor needs to be as transparent as possible. I would love to see candidates for police chief have to sit for in-depth interviews on a range of issues, including rape kits. 


    joe vargo
    joe vargo subscriber

    This is just another case of good cop/bad cop. Came outta nowhere. City has been sitting on this stuff for millennia. Both have a credibility problem. Governski?

    rhylton
    rhylton subscriber

    The City Attorney and/or the people who are pushing the bills that will require require law enforcement agencies to submit annual reports to the California Department of Justice are trying to kill me. So what if something is reported to the  California Department of Justice? Does anyone think or believe that the CA-DOJ will do something about what is reported to them?  The CA-DOJ is a significant part of the problem, take for example AB953. Those stumblebums have gone 9 months beyond the date where (final) data-collection collection and submission rules were required. I am tempted to report them; but to whom?


    That said, it seems to me that testing the kit is the first step, and can often determine if there was sexual contact between the people in the dispute. Despite this obvious thing, we have a Chief who prattles about "seeking justice for our crime victims." First things first.

    Chris Brewster
    Chris Brewster subscribermember

    Interesting that all it takes for a DNA profile to be uploaded to the national Combined DNA Index System database is an investigator's confidence that a crime occurred. No due process in that.