District Attorney Summer Stephen told Voice of San Diego Tuesday that the San Diego Police Department was wrong to implement less rigorous testing procedures for dozens of old rape kits it analyzed after outside groups pressured the department to clear its backlog of untested cases.
And she said that no one at the district attorney’s office signed off on the change – or even knew about it.
While Stephan commended SDPD for reversing course on its decision to water down its testing methods for certain kits, she blasted the department’s overall approach to dealing with rape kits and urged it to join the existing countywide effort to quickly test all of the untested kits in the region.
After a reported sexual assault, nurses take swabs from different parts of a victim’s body in search of DNA from the alleged attacker. Those swabs are then put into a single kit for future testing.
In March, SDPD began testing just one swab from dozens of previously untested kits . But the department canceled the less rigorous testing process in August, a day after Voice of San Diego first asked about the practice.
“No we weren’t aware of it,” Stephan said. “I don’t think that that’s the right thing to do. I was glad to hear that SDPD acknowledged, and I saw the reporting that they pulled back from that. But again, the DA’s office, in our role, we advocate for policy and what we’re advocating for is all of these have to be tested. We assume that the testing will be done by proper standards. We don’t get into the technical because that’s not our area. We trust that forensic experts will make those decisions correctly … mistakes happen, but the key is to not get stuck on ego, to correct and to move forward so we can serve this community.”
The district attorney’s office struck an agreement with the Sheriff’s Department and all 11 other police departments in the county except for SDPD to clear the county’s backlog of kits by sending them to third-party labs for testing.
SDPD declined to join the effort, and instead created a working group that included a police sergeant from the sex crimes unit, the district attorney in charge of sex crimes, the crime lab manager and a victim’s rights advocate. The group would work its way through the backlog of kits, determining which ones to test.
SDPD organizes its untested kits into 18 separate categories, one for each reason the kit wasn’t tested – for instance, because the district attorney declined to prosecute. The working group has been working through cases category by category.
Stephan said she disagrees with SDPD’s approach, even though the working group includes a representative from her office.
“Where it comes to sexual assault testing, I’ve completely disagreed from day one,” she said. “I believe that they shouldn’t be put in categories. Categories have subjective elements to them. That’s the whole point of the Department of Justice guidelines changing to allow testing of all rape kits, so that we don’t have a subjective element: What case is credible? What case is worthy? Who should get testing?”
Stephan said the crime labs at the Sheriff’s Department and SDPD both told her that they didn’t have the capacity to test all of the untested kits in their possession while still handling their usual daily flow of casework. When she proposed finding grant money to pay to have all the kits tested, SDPD said it wanted to do it internally.
“We asked questions, ‘How are you going to accomplish that? You’re already stressed, busting at the seams, trying to keep up with cases,’” she said. “They assured us they can, and so we moved ahead and now we reported a milestone. We’re only a hundred rape kits away from finishing the backlog for every agency except SDPD.”
SDPD asked the DA’s office to be part of the working group that would advise its own internal process, and Stephen said she had to consider whether to be a part of it.
“We discussed it, and we decided even though we don’t like this category system, we are better being at the table and trying to be part of the solution, hoping that we would make almost every case fit within this category. That was our role.”
But that working group was never asked, she said, about any changes to crime lab testing procedures.
“Whatever misstatements were made about us approving a technical process of what a scientist would come up with on how to test, we are not a part of that. We were part of a working group to determine and to help encourage them to expand these categories.”
Stephan said that she has again asked SDPD Chief David Nisleit to join the countywide pact to test all kits through private labs.
“I trust we’re going to get to a solution together,” she said.
SDPD has for years been hostile to the nationwide movement to test all rape kits . In 2016, crime lab manager Jennifer Shen argued that the department’s policy of only testing kits it already had reason to believe would yield valuable evidence was superior to the test-all-kits movement. A year later, in 2017, former Police Chief Shelley Zimmerman said that was still the right approach, and that the push to test all kits was misguided.
Stephan said that argument is over, SDPD lost and it’s time to accept that and test all kits.
“That argument went out the window in August of 2017 because we are a region that follows best practices,” she said. That’s when the Department of Justice published guidance  urging departments to test all kits. Stephan said SDPD’s reasoning that it’s not always useful to test certain kits directly conflicts with that guidance.
“Whatever arguments that might have been valid at some point … we have to go with what is current science, and current science is that the old way of doing it, which is you test when there is an unknown perpetrator, when you don’t know the identity, that that has gone out the window. Because we know that even known perpetrators, if we know their identity, they strike again,” Stephan said.
The “old way of doing it” that Stephan mentions is an argument Shen has explicitly made herself , emphasizing that SDPD already tests “stranger cases,” and the untested kits largely revolve around cases with a known victim.
City Attorney Mara Elliott, who has also for years objected  to SDPD’s contention that testing all kits isn’t necessary, reiterated that position following VOSD’s revelation that the department lowered its testing standards to clear the rape kit backlog.
“I’ve long advocated that every rape kit be tested because the evidence they contain can help solve cold cases and uncover serial rapists, and because every rape victim who cooperates with this long, grueling, and invasive procedure deserves to be treated with dignity and respect,” Elliott wrote in a statement. “I have spoken with the police chief and he has assured me that building public confidence in his department’s testing processes is a high priority.”
San Diego Councilwoman Monica Montgomery, who chairs the Council’s committee on public safety, said the city’s rape kit policy still isn’t good enough.
“Of utmost importance to me, as a person and a Council member, is fairness,” Montgomery wrote in a statement. “This is why my office is doing our due diligence to get to the bottom of this issue with the rape kits. Every rape kit should be tested using best practices and the highest industry standards to ensure that victims are protected, and justice is served. I’ve been in constant communication with the chief of police and I’m staying updated on next steps. As a city, I’m confident that we can do better.”