This article first appeared in Law Officer magazine: Subscribe
The first two articles of this series (Part 1 and Part 2) on investigating rape discussed legal definitions, the importance of care in handling the initial contact with a rape victim, identification and collection of rape evidence, the medical examination and the various uses of DNA evidence. In the third and fourth articles (Part 3 and Part 4), I developed a fictional sexual-assault case based on an actual incident to demonstrate the practical application of previously discussed theory. Marie Delaney, a 32-year-old bank manager in Hartford, Conn., was raped in the stairwell of the bank’s parking garage. Her assailant repeatedly struck her with a knife handle, fracturing her jaw and damaging her right eye so severely it had to be surgically removed. In this fifth and final installment, fictional detectives Anthony Capriati (aka the Cisco Kid) and Shirley Bascomb bring the investigation to a close.
Physical Evidence Collection & the Exclusionary Rule
While detectives Bascomb and Newcomb of the Evidentiary Services Division processed the crime scene for evidence, Detective Lucas worked at the hospital with Judy Benson, a nurse trained in rape-case forensic-evidence collection, to gather physical evidence from the victim. Although conscious, Delaney was heavily sedated and being prepared for surgery, which complicated evidence gathering, including swabbing her mouth, taking an anal smear, scraping under her fingernails and photographing her injuries.
This situation poses an interesting legal question dealing with the exclusionary rule. Remember: The exclusionary rule prohibits the government (police) from using illegally obtained evidence against an accused in a criminal case. If the victim didn’t give prior consent for the intrusive collection of evidence from her person, can prosecutors use the evidence in a criminal case against a defendant? Can consent be assumed? Can consent given at a later date be retroactive? A hospital employee, not the police, obtained most of the physical evidence. However, the nurse turned the evidence over to Lucas to be sent to the state lab for processing. Is the nurse then operating as an agent for the police and thus being used to circumvent the Fourth Amendment requirement relative to search and seizure? Or, is the collection of evidence from the victim an “exigent circumstances” exception to the Fourth Amendment? Talk these questions over with your colleagues, or, if you’re a training officer, use the entire Marie Delaney case in class and pose these questions to your students. I discuss the answer at the end of the article.
Across from the Crime Scene
At the crime scene, Bascomb noted several items of evidentiary value, including a sneaker print in the blood and dirt in the parking garage’s stairwell landing. After photographing and videotaping the impression, Bascomb called in a crew from the city and jackhammered out a cement block in a 4-foot square to preserve the print for lab analysis.
Meanwhile, Capriati, who was in charge of the investigation, had exited the garage’s stairwell on the bottom floor and walked across the street to the Hartford Civic Center. Although it was now past 2300 hrs, the civic center had been open at the time of the rape. The Cisco Kid figured it was a good bet the rapist had entered the lobby where there were public rest rooms and ditched the purse. Sure enough, Capriati found the victim’s purse in a metal trash bin in the men’s room. Out front, a hot dog vendor known as Sammy the Snake peddled dogs from his street cart to a group of people, including two prostitutes who were Capriati’s paid informants. One of them, Candy, told Capriati that a known rapist, Byron Jefferson, aka “Kong,” had been in the area and left shortly after the time of the rape on a Greyhound bus to South Carolina.
Capriati had arrested Byron Jefferson 10 years ago after a lengthy investigation into a series of brutal rapes in the city. Jefferson had taken one of the women from Connecticut to Rhode Island where he raped and left her for dead, but she survived. Jefferson was convicted in federal, not state, court. Capriati was surprised Kong was out of prison so soon.
Capriati called Bascomb to walk across the street to process the evidence in the civic center men’s room. She passed Candy in the doorway as she entered and raised her eyebrows, but didn’t say anything to Capriati other than, “Where’s your gloves? You didn’t touch anything did you?”
Capriati indicated the trashcan. “The purse is in there. He must have gone through the purse, dumped a lot of stuff he didn’t want and then tossed the purse in after he was done. Maybe you can get some prints.” He told Bascomb he was going after Kong.
Bascomb was worried. “You don’t have any p/c this guy’s the perp. It’s probably him, but we have nothing linking him to the crime yet.”
“He was in federal prison and must be out on probation. If he left the state, that’s a probation violation and I’ll grab him for that.”
Bascomb frowned. “You better have a piece of paper in your hand if you catch him. We’re local cops. It takes a hearing to determine a person has violated their probation. You’re going to get jammed up.”
Capriati laughed. “Nah, I’ve got you, Shirley, and you’re going to call me on my cell phone in a couple of hours and tell me you found me some probable cause. Besides, the blood-splatter trail isn’t the victim’s. She took a piece out of him, probably his face. He’s marked, and that’s p/c.”
Bascomb looked depressed. “It would be a miracle if he’s stupid enough to leave his prints,” she said.
Capriati nodded. “Well, he’s not the brightest bulb in the box. Maybe we’ll get lucky.”
Bascomb thought to herself that Kong was smart enough to have evaded a task force for five months headed up by Capriati and Frank Kelleher, the state’s FBI chief, but didn’t say it.
Finding the Suspect
The Greyhound bus station was only two blocks away from the Civic Center. Capriati confirmed that a bus left Hartford at 1945 hrs bound for Charlotte, S.C. The first stop was in Atlantic City, N.J., and included a 2-hour layover.
The Cisco Kid left the bus station, got into his car and made several phone calls. Power can be defined as the ability to make a telephone call and galvanize people into action. To people outside the police family, Capriati was just a detective, and a large hierarchy of cops with bars and stars outranked him, but Capriati had spent a lifetime making a significant difference in other people’s lives. He was one of the few people on the job who could get the head of the federal probation department, Steve O’Leary, out of bed to verify that Jefferson was in fact on probation and would violate his probation by traveling out of state. O’Leary said he’d send an e-mail to the detective division confirming the information.
Only Capriati could call a longtime friend and high-ranking member of the state police to have a helicopter waiting on a pad at the same hospital where Delaney had lost her right eye in surgery. Next, Capriati called Kelleher, and got him out of bed. “Frank, it’s Cisco. Saddle up. We have to take a little copter ride, and I need your federal jurisdiction. I’ll be in your driveway in 20 minutes.”
Finally, the Cisco Kid made his most difficult call. He told the chief of the detective bureau he was “in hot pursuit,” but it involved a little helicopter ride to Atlantic City with the FBI, and he’d “keep the chief informed.”
Modern technology has now equipped some patrol vehicles with a computer, printer and fax machine. Capriati drove his own old car (jet black, of course) at work, so he stopped a patrol officer and obtained several copies of the latest mugs shots of Jefferson to bring along on the trip. He picked up Kelleher, who didn’t look too happy, and a short time later they were flying toward the New Jersey turnpike in a state police chopper.
The state police helicopter had a cruising speed of about 100 mph depending on wind and weather. The two state cops in the chopper told Capriati they’d have to stop and refuel along the way, making it a 2-hour trip to Atlantic City. Since it was a 5-hour ride by bus, Capriati felt confident they would be there long before the bus arrived and have adequate time to come up with a tactical plan to arrest Jefferson.
Both Kelleher and Capriati made calls on the way to Atlantic City, and by the time the chopper set down on the helipad near the Atlantic City convention center, a small army of federal, state and local cops were waiting to greet them. It was the local cops the Cisco Kid wanted to talk to. They knew their city, the bus station and the surrounding area. After a short briefing, they all agreed on a tactical plan Capriati thought would work because of its simplicity. The bus station was essentially a box with four corners, two exits, a ticket counter and restrooms. The plan was for some local tactical-team cops in civilian clothes with duffle bags to act the part of Greyhound bus travelers seated on benches in the terminal. A couple more would wait in the men’s room, and another behind the counter in place of the ticket taker. Jefferson and the other passengers would probably make a beeline for the restroom, and they would take him there. Capriati knew Jefferson smoked; the backup plan was to take him the minute he walked outside to have a cigarette.
After speaking with Capriati, a seasoned Atlantic City detective left the briefing, returning 35 minutes later with a special briefcase for Capriati. The Cisco Kid emerged from the men’s room a short time later transformed into an aged woman sipping from some Johnny Walker Red in a brown paper bag. This served two purposes. First, it broke up the mounting tension natural for cops waiting for the bell to ring, and second, Capriati, who was well known to Jefferson, could serve as a spotter in the bus terminal. The photographs of Jefferson were good, but any margin of error needed to be eliminated in this type of situation.
Capriati’s cell phone rang, and the excited voice of Bascomb came on the line. “Cisco, we got him. The fingerprints on the library card with the victim’s name on it found in the trash can match Jefferson!”
Capriati asked, “Are you absolutely certain?”
There was a pause. “Is the Pope Catholic? Of course I’m certain.” Bascomb launched into a lecture on “points of comparison” and so on.
Capriati thanked Bascomb, promised her a steak dinner and informed Kelleher. “Thank God,” Kelleher said. “We were on pretty thin ice you know.”
Capriati disagreed, but just smiled though the false teeth of his disguise.
The bus arrived. Jefferson was one of the last people to get off. He had a makeshift bandage across his cheek where Delaney had gouged him, but there was no doubt it was him. Capriati stood up from his bench, and seconds later it was all over. Two of the Atlantic City tactical cops had Jefferson on the floor of the terminal before he took two steps. After a brief scuffle, he was cuffed and the knife he’d used to hit Delaney was found on his person. The Atlantic City cops took Jefferson into custody on a charge of resisting the police until the more serious charges could be lodged against him in the morning.
Evidence & Conviction
Eyewitness and victim identification in stranger-to-stranger cases often prove unreliable. Delaney could not pick Jefferson out from a group of photographs shown to her. In fact, she picked out another photograph in the display, stating she was “absolutely certain” it was the man who had raped her. Neither the oral nor anal smear contained enough biological material to complete a DNA-typing profile. Although Delaney had gouged out a chunk of Jefferson’s face with her fingernails, that also turned out to be a dead end.
Even so, in the end it was science that killed the beast. The sneaker print found at the scene was consistent with the sneakers Jefferson was wearing. Human blood found by microscopic examination on the sneakers matched Delaney’s blood type, which was not the same as Jefferson’s blood type. Jefferson’s fingerprint was found on Delaney’s library card in the trash bin at the Civic Center. The coup de grace was the knife and the straw from the soda cup. There was enough biological material on the handle of the knife Jefferson used to repeatedly hit Delaney to link Delaney to Jefferson through DNA-typing, and the straw had enough DNA material to link Jefferson to the scene of the crime. Jefferson was convicted in court and sentenced as a career criminal to life without parole.
The Cisco Kid made his way into the judge’s chambers during a break in Jefferson’s trial and was able to obtain a nolle in a prostitution case against Candy, the prostitute who had given him the lead on Kong. Then he, the two state cops who flew the chopper, Amaral, Lucas, Kelleher, Newcomb and Bascomb had the best steaks money could buy, and all toasted a round of cheer to the Cisco Kid.
| Answer to the Exclusionary Rule Question The Fourth Amendment applies only to unreasonable searches and seizures, not reasonable ones. The test is one of reasonableness. Were the officers’ actions in gathering evidence from the victim reasonable given the totality of circumstances of this particular case? The victim is not an accused, nor is she a suspect. Although the procedure for gathering evidence is intrusive, under the exigent circumstances doctrine, it would be reasonable for the police to believe evidence in and on the person of the victim was about to be destroyed or altered (in this case, during surgery), and a search and seizure warrant isn’t required. |
