SATI e-News: October 17, 2003

• Kobe Bryant’s Hearing Opens with Graphic Testimony
• Video Voyeurism Prevention Act of 2003 Passes the Senate
• Microsoft Helping Cops do their Jobs

News Feature

• SATI Introduces EVAW, Inc. and Scholarship Opportunity

• House Committee Approves DNA Analysis Bill
• 9th US Circuit Court of Appeals Declares DNA Act Unconstitutional
• National Rape Evidence Project Company Hopes to Raise $10 Million for Rape Testing
• Nationally Recognized DNA Expert Appointed to Superior Court Bench
• Man Convicted in San Diego, California, Rape, Murder of 2 Young Boys
• DNA News From Around the Country
   

• From the Desk of the Training Director:  Overcoming a Consent Defense

  **Sexual Assault News**

By T.R. Reid
Washington Post Staff Writer
Friday, October 10, 2003; Page A01
 
EAGLE, Colo., Oct. 9 -- Kobe Bryant's accuser told police that the National Basketball Association all-star player grabbed her by the neck, bent her over a chair, and raped her violently while she wept and repeatedly said "no," a sheriff's deputy testified Thursday in the first evidentiary hearing of Bryant's criminal case.
 
Bryant's lawyers made it clear at the preliminary hearing that his chief defense strategy will be a forceful attack on the veracity and character of the 19-year-old hotel clerk who alleges that Bryant raped her at a mountain resort in late June.
 
Defense lawyer Pamela Mackey repeatedly named the alleged victim during the explosive courtroom session -- despite a court order barring use of her name -- and then suggested that the woman had been promiscuous with more than one man in the days before her encounter with Bryant.
 
Prosecutors immediately objected, arguing that Mackey's comment was unsupported by evidence and violated the Colorado law protecting rape victims. At that point, county judge Frederick Gannett banged the session to a close, lectured the lawyers in his chambers, and rescheduled the proceeding for next week.
 
Before that dramatic denouement, though, Eagle County prosecutors, who have charged the Los Angeles Lakers' guard with felony sexual assault, used the hearing to set forth the woman's detailed description of her fateful encounter with Bryant.
 
Eagle County Sheriff's Detective Doug Winters, who interviewed the alleged victim the morning after the incident, testified that the woman described herself as excited when the superstar athlete walked into the hotel where she worked, and flattered when Bryant asked her to come to his suite. She told police, Winters continued, that she did not initially resist when Bryant hugged and kissed her, but was unable to break free when the 6-foot-6 athlete held her by the neck with one hand, pulled off her underwear with the other, and violated her. According to the testimony, the woman told investigators that Bryant repeatedly warned her not to tell anyone what had happened.
 
Winters also testified that a trained sexual assault nurse who examined the woman the day after the incident found blood in her underwear and vaginal injuries "not consistent with consensual sex."
 
Bryant, a husband and father, has admitted having sex with the woman that night. He says the intercourse was consensual, and that assertion is the heart of his defense. If convicted, he faces penalties ranging from 20 years of closely supervised probation to a prison term of four years to life.
 
Bryant was required to attend Thursday's hearing as a condition of his release on $25,000 bail. Wearing a dark blue suit over a cappuccino-colored polo shirt, he listened with an impassive face throughout the five-hour court session. Surrounded by his lawyers, his agent, and phalanx of bodyguards, he said nothing before, during or after the hearing.
 
Mackey, a prominent Denver defense lawyer, did the talking for the Bryant side, and was aggressive throughout the hearing. In mocking tones, she described the accuser's account as "this story she told." She repeatedly asked Winters why he had seen no bruises on the woman's neck or arms the morning after the incident. "Does that support this story of grabbing her
neck?" Mackey demanded.
 
Finally, Mackey got around to the nurse's report, which said the vaginal injuries were not consistent with consensual sex. It was at that point that she began to suggest the woman had been with other recent partners – until she was cut off in mid-sentence by the prosecutors' objections and the judge.
 
Colorado's Rape Shield Law makes it illegal for anyone -- even a defense attorney -- to make accusations about an alleged victim's prior sexual conduct except in rare circumstances.
 
In Colorado criminal law, a preliminary hearing is essentially a protective measure for the defendant. The prosecutors must prove to the judge's satisfaction they have enough evidence of a crime to justify a full-scale trial.
 
Several local criminal lawyers who came to the courtroom as spectators Thursday agreed that the prosecutors probably produced enough evidence to meet the fairly low standard required to "bind over" a case for trial. The judge's decision will not be made until the conclusion of the hearing, which will reconvene here next Wednesday morning. Bryant must be present.
 
But the lawyers in the audience also said Mackey's cross-examination had poked holes in the prosecution's case. "I'm surprised at how weak the case was today," said Bruce Carey, a prominent Eagle County defense attorney. "I think it will go to trial. But if they don't have more than this by the trial, the result is going to be 'not guilty.' "
 
The accuser, a resident of Eagle who has finished one year in college, told investigators that she engaged in "mutual flirting" with Bryant as she gave him a tour of the $350-per-night Lodge at Cordillera in Edwards, Colo., according to testimony Thursday. They then went back to his suite and he asked for a hug, she reported. They began kissing. Then Bryant put both hands on her neck, and she became frightened, Winters testified. "She was trying to move toward the door. His back's toward the door, she's trying to get around him, and he blocked her movement," Winters testified, recalling what the woman reported. "He forced her toward the chair area. She said, 'No.' She was crying," he said, adding, "she felt pain in her vaginal area."
 
The intercourse lasted about five minutes, according to the woman's report. Winters said he did not ask her whether there was oral sex as well. But when the rape nurse asked her an hour later, the woman said Bryant had forced her to kiss his genital area after the intercourse.
 
After that, the woman told investigators, she used the bathroom in Bryant's suite to clean up and straighten her clothes. She then went to the lobby and told a bellman that she had been raped by the famous basketball player. The next morning her father called the sheriff's office, and thus began a high-profile criminal drama that will presumably continue in the courts for months to come.

© 2003 The Washington Post Company

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Legislation to prohibit video voyeurism, S.1301, passed the Senate by unanimous consent September 25. The bill prohibits knowingly capturing an improper image of an individual under circumstances in which a person would have a reasonable expectation of privacy. The bill is sponsored by Senator Mike DeWine (R-OH). The House version, H.R.2405, was introduced by Representative Mike Oxley (R-OH). The House is expected to consider the issue this session.

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**News Feature**

SATI’s Training Director, Joanne Archambault, founded EVAW, Inc. a 501(C)(3) non-profit, in January 2003, to educate the general public and public safety workers about the crimes of sexual assault and domestic violence and to provide effective, victim centered, multi-disciplinary instruction in this area.  EVAW’s mission is to provide training, with an emphasis on the law enforcement investigation and proper criminal justice responses to sexual assault and domestic violence and also to include identifying effective primary prevention programs for men.  EVAW is excited to have an impressive Board of Directors to provide vision for the future while ensuring that current training, research and prevention information is applicable and practical for today.
 
Scholarship Opportunity
 
In September 2003, EVAW, Inc. was awarded a grant from a private foundation to work with SATI, Inc., The National Action Plan Against Sexual Assault (NAPASA)and Carleton University, in Ottawa, Ontario, Canada, to sponsor two national conferences within each country to promote an integrated community response to sexual violence. Attendance at the conference will be selective, through application only. A competition will be held to award conference scholarships to six to eight representatives from the police, prosecution, rape crisis centers and other sexual assault service providers, within the same jurisdiction, who jointly apply for support. The conference will provide training in a comprehensive strategy designed to stimulate innovation and social change. The communities selected will receive follow-up support.
 
The Proposed Project:

The project will promote an integrated community response to sexual violence by selecting communities, not individuals, as the “participants” through a competitive selection process to attend a three-day conference in either the United States or Canada. Full support will be provided to communities where representatives from the police, prosecution and sexual assault services demonstrate they are prepared to work together to implement the social action program designed by NAPASA and SATI.

• Teams from the participant communities will receive training at a national conference to develop an Integrated Community Sexual Assault Response in the strategy and methods for challenging the legal system to more effectively prosecute sexual assaults.
   
• Teams from the participant communities will become international partners in a US/Canada effort to set new national standards for effectively prosecuting sex offenders, particularly ones whose crimes do not fit the stereotype of rape. The activities of the participant communities will be coordinated through a dedicated web site.
   
• Teams from the participant communities will receive follow-up support through on-site and on-line consultations, evaluation, and through joint publications and presentations to academic, professional and applied journals and conferences.

Selection Criteria:

Reference the US conference, participant communities accepted will receive full conference support to attend a three-day conference to be held in San Diego, California in October 2004. (Exact dates TBA.) The scholarship will include the conference registration fee, training material, hotel accommodations, travel and meals. The scholarship will not cover the participants’ salaries. The application criteria and selection process will be based on documentation that:

• The participant community agencies (advocates, police, prosecution, and medical supporting services) have open channels of communication, and ideally have worked together in the past.
   
• They recognize that improvements are needed and are looking for ways to become more effective as a sexual assault response team.
   
• They have reviewed the web sites of SATI and NAPASA and are prepared to work together within their own jurisdiction and with the other participant-communities to develop a strategy that reaches from the front to the back end of the criminal justice process.
   
• They show an awareness that participation will take resolve to question, and at times to challenge, the status quo.

A formal announcement, application and other information will be available soon. Check for future updates. 

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**Forensic News**

 From the Women’s Policy Inc newsletter: http://www.womenspolicy.org

On October 8, the House Judiciary Committee approved, 28-1, a legislative package (H.R. 3214) that includes a number of proposals to improve the collection and analysis of DNA for criminal prosecutions. Sponsored by Chair James Sensenbrenner (R-WI), the Advancing Justice Through DNA Technology Act would allow inmates access to post-conviction DNA testing and would include a number of provisions important to women.
 
SATI interviewed Rob Smith who said, "It combines our bill into 3 others, but does leave ours mostly intact. Debbie and I are very excited about this version because it appears to be one that both sides of Congress are willing to pass. After working towards this end for 2.5 yeas, we are very happy to see the end in sight."
 
H.R. 3214 would authorize $755 million over five years for the Debbie Smith DNA Backlog Grant Program. This program would provide grants to states and local authorities to eliminate the current backlog of over 300,000 rape kits, other sexual assault evidence, and samples taken in cases without an identified suspect currently awaiting DNA analysis in crime labs. The measure also would expand the Violence Against Women Act (VAWA) to provide legal assistance for victims of dating violence. Finally, H.R. 3214 would incorporate the text of the DNA Sexual Assault Justice Act (S. 152). Sponsored by Sen. Joe Biden (D-DE), this bill would provide grants for training and educating law enforcement, judicial authorities, and medical personnel on the use of DNA analysis in sexual assault cases.
 
Rep. Sensenbrenner argued that this legislation is necessary because “public crime labs are ill-equipped, and consequently, overwhelmed by backlogs of unanalyzed DNA samples that could solve violent crimes if the states had the funds to process them. Experts have estimated that DNA evidence from more than 180,000 rape crime scenes have been collected, but never analyzed.”
 
In a statement released by his office, Rep. Jerrold Nadler (D-NY) lauded the authorization of funds to reduce the rape kit backlog. “This is a serious effort to combat crime, locate and apprehend rapists, and use powerful evidence to put them in prison. Unlike the sound bite crime legislation that so many Members of Congress seem to advocate these days, this bill will actually make a difference,” he stated.
 
Prior to final approval of H.R. 3214, the committee adopted, by voice vote, a manager’s amendment that would allow states to run DNA profiles on arrested individuals through the FBI’s Combined DNA Index System, without adding those profiles to the system.
 
The House could take up the bill as early as next week. Judiciary Committee Chair Orrin Hatch (R-UT) has introduced comparable legislation (S. 1700) in the Senate.

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A 3-year old law that requires federal inmates and parolees to give blood samples for DNA profiling in CODIS was declared an unconstitutional invasion of privacy by the 9th Us Circuit Court of Appeals. The 9th Circuit Court covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington State. The Court said the requirement “violates the 4th Amendment protection again illegal searches. Several states included in the 9th Circuit Court’s district have indicated that they intend to proceed with DNA database efforts, despite the controversial ruling from court regarding federal statutes.
 
An Alaska court has ordered a temporary injunction against collection of DNA from certain offenders based on the ruling and a New Jersey man is challenging the state’s DNA database statute.
 
A spokesperson for the California Attorney General said the ruling does not undermine the California law. “Our review of the panel’s decision is that it does not have a direct impact on California because it is specific to the federal DNA database collections and federal inmates. California’s law and the databank have been upheld by the Third District (California) Court of Appeal as constitutional under both the state and federal constitutions.” But, the office admitted that the practice of having federal prison officials collect DNA on the states’ behalf might have to stop if the ruling survives further appeals. And the State is concerned that public safety might be compromised if federal inmates get out of prison in California without being on law enforcement’s DNA radar.

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In San Diego,California, Richard Allen Davis, a 40-year-old man was convicted of raping and murdering two boys in 1992.  The identification was made just two years ago after Davis was linked to the murders through new DNA extraction techniques.  Davis was serving a 70-year prison sentence for raping a woman six months after the boys’ deaths.  Last year, he was linked to the rape and 1989 slaying of a woman in Palm Beach County, Florida. 

Source: Associated Press Online, October 2, 2003

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Indiana detectives are reviewing evidence in sexual assaults in dozens of cities after DNA tests linked a man to the rapes of two girls in Muncie and attacks on women in two other cities in Indiana.  Detectives canvassed the neighborhood where the girls were raped and came across the suspect, who lived nearby.  He was not at first considered a suspect in the rapes, but was arrested on unrelated warrants.  DNA tests on 23 other men who lived in the neighborhood did not match the forensic profile, but the state crime lab reported a match to the suspect from a sample a judge ordered him to give in an unrelated burglary case.
 
DNA Leads to Florida Arrest in 1996 Homicide
St. Petersburg Times, October 4, 2003
 
A 7-year old DNA sample taken from a murder victim turned up a match in Florida’s DNA database, and proved to be the key piece of evidence that allowed Hillsborough deputies to solve a 1996 murder case.  Deputies said they solved the cold case through the use of DNA testing.  It was their first use of the new technology to solve a crime using a blind hit on the DNA database. The offender was in the database for a 1998 burglary conviction.  A sample from the crime was submitted to the state’s DNA lab in January of this year.
 
Texas Cold Case Cracked
The San Francisco Chronicle, October 4, 2003
 
A Texas inmate has been charged with raping and strangling to death a woman at a popular reservoir in California 25 years ago, after DNA evidence linked him to the crime.  The case was reopened in 2000 as part of the Sheriff’s Department’s review of unsolved murder cases.  A detective realized that blood found under the victim’s fingernails could be analyzed for DNA evidence.  The inmate is now awaiting extradition to California to face charges of murder and rape that could make him eligible for the death penalty.  He would have been eligible for parole in Texas in November 2003.
 
Florida Groups Work to Preserve DNA Evidence
Florida Times-Union, October 4, 2003
 
In Florida, directors of two criminal justice watchdog groups (Florida Innocence Initiative and Florida Innocence Project) are calling for a statewide system to preserve biological evidence that may free innocent men and women in state prisons.  The organizations have said a uniform system is needed to ensure DNA evidence being stored in police department lockers and prosecutors’ vaults stays intact and available.  Such a system is a step toward guaranteeing that innocent inmates are exonerated and unpunished criminals are caught.
 
Los Angeles Police Making Progress on Backlogged DNA Samples
City News Service, October 2, 2003
 
Los Angeles police have made considerable progress through more than 1,000 backlogged DNA samples since August, and authorities expect to complete the work by early next year.  A $500,000.00 state grant has allowed police to send many of the samples waiting to be tested to outside laboratories for processing, and officials expect to be fully caught up by February.  A City Councilman has also called for a four-step effort to increase the frequency of future DNA testing: a report from the LAPD about the current process for when detectives refer sexual assaults and other cases with DNA evidence for testing; the development of a new policy to test current cases in real time; a quarterly report on the number of cases tested and the amount of funding needed to keep pace with incoming cases; and a report from the LAPD about plans for local implementation of the “DNA Bill of Rights.”

Challenges to DNA Evidence

Reverse Court Decision On DNA
The Oregonian, October 4, 2003
 
Editorial regarding the 9th Circuit’s ruling on collection of DNA samples for the database.  Excerpt: “The question is: Do convicted felons and parolees enjoy the same protections against such searches?  We do not believe they do…  There’s no question that DNA testing of parolees and prisoners advances the interests of justice.  Such testing has greatly amplified the resources of law enforcement in Oregon and led to the solving of dozens of crimes.  The DNA Unit of the Oregon State Police forensic lab keeps track of the matches it has made using DNA samples. As of mid-September, it could boast of 263 successful “hits.”  DNA sampling is invaluable to the public.  Whether involving blood samples or cheek scrapings, the 9ty Circuit Court panel should not be allowed to deprive law enforcement of this rigorous scientific tool to solve crimes.”
 
Judge Will Allow New DNA Test in Rape-Murder Case
Orlando Sentinel, October 54, 2003
 
A Florida judge agreed to allow newer DNA testing on a small semen sample that might prove the innocence or confirm the guilt of a former police officer on death row for raping and killing an 11-year old girl in 1987.  The Florida Department of Law Enforcement tested cuttings from the child’s clothing, scrapings from her fingernails and other evidence, but found little aside from a slide with evidence taken from the pink panties she was wearing.  That slide showed the presence of sperm.  However, scientists so far have been unable to remove the sample – stuck between the slide and a cover slip with a glue-like mounting medium—without destroying it.  Discussions over how to remove the sample are ongoing.

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