Thousands of untested Ore. sexual assault kits could have helped solve 500 crimes

Portland officials came up with that number based on what Detroit found when it tackled its load of untested kits

By Maxine Bernstein
The Oregonian

PORTLAND, Ore. — Portland police left thousands of sexual assault kits untended on storeroom shelves that they now admit could have helped solve at least 500 sex crimes over the last decade.

The untested kits stacked up despite public promises by police leaders to eliminate the stockpile after a serial rapist killed 14-year-old Melissa Bittler on her way to school in 2001.

Detectives had tracked down her murderer by testing old kits that they discovered among more than 1,000 sitting in their evidence warehouse. They vowed then not to let the kits – and all the unprocessed DNA — gather more dust.

But an investigation by The Oregonian/OregonLive shows that police chiefs and supervisors failed to make good on their pledge to send the kits to the state crime lab for analysis.

The top brass didn't seek money to test the kits or make sure supervisors regularly reviewed whether detectives were getting kits tested as part of their investigations — as two city audits urged.

The Police Bureau also never adopted any standard directing detectives when to test kits, leaving individual investigators to make the decisions on their own. And they had a spotty record: Since Bittler died, the bureau sent fewer than 4 in 10 kits for DNA analysis; in 2012, just 2 in 10 were tested, according to bureau figures.

One former Detective Division commander remembers writing a memo shortly after Bittler's death to require routine testing of the kits, but neither he nor the bureau could produce it.

Not until recently did the bureau make any effort to change.

It took a Sex Crimes Unit sergeant — who had never investigated a rape case himself — to write guidelines requiring that most kits be tested by a crime lab. The sergeant also pushed for a $2 million federal grant to process and track the kits. The bureau just got word Thursday that it will get the money.

Still, Portland's untested kits now total 2,408 – more than double what existed when Bittler was killed. That number represents nearly half of the state's more than 5,000 untested kits.

When they finally test the mountain of kits – estimated to take at least two years — Portland police expect to get at least 500 matches connecting evidence in the kits to DNA profiles of criminals or crime scenes stored in the national criminal justice DNA database.

Portland officials came up with that number based on what Detroit found when it tackled its load of untested kits. The potential DNA hits in Portland will mean reinterviewing hundreds of victims and possibly solving more attacks, police say.

Chief Larry O'Dea, a 28-year Portland police veteran, said he didn't know that the bureau had previously identified a problem in its handling of kits. After he became chief in January, he found out about the glut and said he's committed to having his detectives test all kits.

"Sexual assault investigations are some of the most emotional and complex cases we undertake,'' he said in an email. "We are striving to be a leader in this country on the development of sound policy and investigative practices.''

Mary Bittler Her daughter's 2001 killing helped Portland police then identify problem of untested sex assault kits.

The bureau's failure to address the problem for so long baffles Melissa Bittler's parents.

"It's disturbing because I remember – if Melissa's death had to have some good in it, it was so other victims of rape would know their rapes would get priority and their rape kits would be tested,'' said Mary Bittler, Melissa's mom.

Tom Bittler, Melissa's dad, can't understand how the problem could be worse today.

"Did they not take rape seriously? It's a violent crime that could lead to even more serious crimes as it did with Melissa, and aren't they in the business of preventing future crimes?'' he said. "Was it just giving us lip service?"

Broken Promise
The Bittler case was supposed to have been the turning point.

The teenager had just left home when someone dragged her behind a house across the street, raped her, then choked her to death in December 2001.

Detectives reviewing 10 years of old police reports in a search for clues found three rape cases from February 1997 similar to Bittler's rape. The girls, then ages 14 or 15, had been approached from behind, grabbed around the neck and dragged behind a nearby house. They all survived, but didn't know their attacker.

Unboxing a sex assault kit Sexual assault nurse examiner and Oregon Sexual Assault Task Force coordinator, Robin Olafson, explains what's inside a sexual assault forensic kit.

While investigating Bittler's homicide, police were surprised to find kits from more than 1,000 unsolved sexual assaults – including from two of the 1997 rapes – still in the bureau's property room. They submitted the two kits for the first time to the state crime lab.

The kits typically contain hair and body fluids from victims who undergo hourslong forensic medical exams. If an attacker leaves behind blood, semen, saliva or hair, lab scientists can identify a DNA profile to provide police with leads in unsolved cases.

The state lab reported back that it had found DNA linking Bittler's rape to the ones in 1997, but the DNA didn't match any suspect in the crime database. Still, police finally realized that a serial rapist was targeting young teenage girls in North and Northeast Portland. They went back to interview the other victims and for the first time made the public aware of the threat that they had missed earlier.

Then another woman was raped four months after Bittler, and she knew her attacker: Ladon A. Stephens. Stephens had been on a list of more than 200 sex offenders and other criminals under general suspicion in Bittler's killing. This time, the lab connected Stephens to Bittler's attack and the other rapes. On the strength of the DNA evidence, he was convicted and sentenced to life without parole in the teenager's murder.

Jim Ferraris, commander of the bureau's Detective Division then, repeatedly said he was disturbed by the discovery of all the untested kits.

"Have we learned something from this? Absolutely," he told The Oregonian in July 2002. As commander, he oversaw lieutenants, sergeants and investigators in the Detective Division, which includes sex crimes, homicide, robbery, assault, burglary and child abuse investigators.

Ferraris said at the time that the bureau had drafted a new policy requiring police to route all sexual assault kits to the state lab unless the case was unfounded or stretched beyond the statute of limitations, the kit had no evidentiary value or the evidence wasn't needed.

In a recent interview, Ferraris said he believed he wrote a memo to the Detective Division or Sex Crimes Unit outlining the new standards.

"My recollection is that we dealt with SAFE kits at that time. They were supposed to go to the crime lab,'' said Ferraris, who went on to serve as assistant chief of investigations, then retired and now works as a Salem deputy police chief. "I have to presume there was (a memo), but shoot, it's 14 years ago.''

The bureau, in response to a public records request, couldn't find any written protocol, memo or policy governing which kits to submit to the lab for testing.

"Supervisors have changed, detectives have changed and command has changed several times over and there is not any effective way to get these questions answered,'' police spokesman Sgt. Pete Simpson wrote in an email.

The focus now "is forward-looking and to insure that we are following the best practices with sex crimes investigations and working with our partners to effectively investigate these cases,'' he wrote.

Best practices identified by the National Institute of Justice call for a lab to test a kit within 30 days of receipt. Some police agencies have moved to test all kits received. Experts suggest police, at the least, adopt written procedures with clear expectations.

One retired Sex Crimes Unit supervisor, Sgt. Mike Geiger, said he had encouraged his detectives to send more kits to the lab, although there was no formal written criteria.

But the bureau's own records don't back that up.

The number of sexual assault kits collected from alleged victims has grown dramatically over the past two decades as DNA testing became more widely understood and more trained forensic nurses were available at all Portland hospitals to do the sexual assault exams.

But receiving more kits didn't translate into more testing: The number that Portland police sent to the state lab has remained stagnant since 2000.

Lt. Dave Meyer, who now oversees the Sex Crimes Unit, said he doesn't know why previous supervisors didn't deal with the growing pile of untested kits.

"Either somebody put policies in place and somehow they floated away, or they were never written,'' he said.

The constant turnover of command staff could have played a role, Meyer said. The Sex Crimes Unit has had eight supervisors since 2002. An outside consultant found this year that the bureau's transfer of top supervisors was too frequent, with an average tenure of less than 18 months per assignment.

Each new supervisor has a steep curve to learn the unique demands of sex crimes investigations and the constant turnover makes it difficult to identify and correct problems, other city police agencies have found.

"You move people so often, some of these things take more time than a heartbeat to correct,'' Meyer said.

Sex Crimes Unit Comes Under Fire
The importance of testing sexual assault kits got lost as the bureau sought to respond to a wide range of scathing criticisms facing the Sex Crimes Unit over the years.

A 2007 city audit found some victims had to wait weeks, even months, before a detective first contacted them. It identified sloppy documentation and inadequate investigative techniques. Auditors found that the practices likely contributed to Portland's low rape clearance rate — 20th out of 21 cities its size between 1998 and 2006.

Then-Chief Rosie Sizer doubled the number of detectives working in the unit from four to eight by that fall and tapped a new sergeant to work to improve the unit.

That was Geiger. Under his leadership from September 2007 through September 2010, the unit began to require that a sergeant assign nearly every sexual assault complaint to a detective, who was required to interview victims in person. Sergeants also needed to sign off before a detective closed the case. Geiger also worked to ensure that the city had trained forensic sexual assault nurses at more than one hospital.

"We had so many issues that we were trying to address,'' Geiger recalled. "We were identifying deficiencies. It felt like many times things were coming at us from so many different directions — how do we respond better, withhold any pre-judgment and let the evidence lead us where it will.''

But if a suspect was known, had confessed or claimed that the sex was consensual, detectives in the unit generally believed that sending the kit for testing might not tell them anything, Geiger said.

While the unit had no written policy on testing kits, he said he and officers constantly communicated about the need to test more.

"We keep trying to get better and better," he said, "and you just don't know all the answers.''

How a sex assault kit is processed Behind-the-scenes at Portland Forensic Laboratory, forensic scientist, Chrystal Bell, shows us how a sexual assault forensic kit is processed. Get an up-close look at how DNA samples are tested for sperm.

By 2012, a city audit again identified hundreds of DNA samples from sexual assault kits and other crime reports that hadn't made it to the state lab for analysis. The audit pushed police to establish some type of "periodic supervisory review system'' to make sure the kits went to the lab.

Then-Chief Mike Reese responded by saying he believed such reviews were occurring when a supervisor approved a detective's investigation. The bureau did nothing more to address that concern.

The Sex Crimes Unit now has 10 detectives, along with one sergeant and two victims advocates.

This year an outside consultant's staffing study recommended adding another sergeant and two detectives to the unit, finding that the average active caseloads per detective – 13 – were slightly above the acceptable benchmark. Unit supervisors say the number is closer to 20 per detective.

O'Dea, the current chief, didn't ask to boost the Sex Crimes Unit because he said he was directed by the mayor's office not to expect any staff beyond what was added to support the city's federal settlement stemming from police use of force against people with mental illnesses.

But O'Dea said he's planning to add one administrative assistant to the unit to oversee tracking and monitoring the kits, from the collection to submission to the lab to follow-up investigation. The job is listed as a new position under the just-awarded federal grant.

"Under our grant request, we would form a task force to dedicate personnel to process the backlog of untested kits, including the appropriate follow-up when necessary,'' he said.

O'Dea also hopes to keep police supervisors in command positions for at least two years to reduce the turnover, he said. 

Sergeant's Initiative
The Police Bureau finally began to pay attention to its cache of untested sexual assault kits only after Sgt. Peter Mahuna took the helm of the Sex Crimes Unit in July 2012.

A 20-year bureau veteran, Mahuna had previously worked gang enforcement for 14 years, spent 10 years on the bureau's special tactical squad and supervised detectives investigating property crimes for 2 ½ years.

He'd been reading news stories about untested rape kits from across the country and had talked to police supervisors in other states who were changing how they handled the kits.

A police captain visiting from the Houston Police suggested Mahuna check to see if Portland police had any written guidelines for testing its kits.

Mahuna found nothing among the bureau's directives or operating protocols.

"It was always just left up to detectives to decide,'' Mahuna said.

He set about ending that practice. He consulted with the Oregon Attorney General's Sexual Assault Task Force and Salem police, who had adopted a written policy early last year – one of the few Oregon cities to have one.

Mahuna drafted written protocols for Portland police calling for sex crimes detectives to submit all kits that involve an unknown suspect to a lab.

In the case of known suspects, the kits must go to the lab if the sexual assault involved any form of violence or if the suspect has a history of violence.

"We wanted to take a lot of the decision-making process out of a human's hands,'' he said. " Without any written policies, you're allowing victim biases or detectives' biases to exist. ''

So there's no room for questions, Mahuna added this sentence in bold type: "Potential prosecution has no influence on submission of SAFE kits.''

With new procedures in place last year, the police surveyed how many untested kits they had. Mahuna, his detectives and a victim's specialist compiled case numbers for every kit in the property room.

"We'd pull up each case number and check and see if reports were still available and if the kit had been sent to the crime lab,'' Mahuna said.

Some case reports older than 20 years were gone, destroyed in the normal records retention cycle.

The bureau found 2,235 untested kits through the end of 2014.

Mahuna said he expected to find untested kits, but had no idea how many because he had no point of reference. With so many, he was concerned about how police would get the testing done, do all the investigations and cover the costs.

That led him to seek the $2 million federal grant to send the untested kits to a private lab for testing. The U.S. Justice Department last week announced Portland was one of 21 cities, counties and states to receive part of $41 million to address the national problem.

In past years, the bureau had applied for national grants to help pay for processing all kinds of untested DNA evidence from cold case homicides at the state lab or private labs, but the money — $257,316 in 2008 and $280,453 in 2010 – mostly went to investigate deadly sexual assaults, not sexual assaults of victims who survived.

In the new grant application, the bureau acknowledged the impact of its years of inattention:

If Portland police test about 2,000 kits, half of those are expected to yield eligible DNA profiles. And when those profiles are run through the national database, about half again, or 500, are expected to match convicts or crime scene evidence.

The estimate is based on Detroit's experience: Initial testing of 1,595 kits yielded 785 DNA profiles that could be uploaded to the national database; of those profiles, 58 percent resulted in matches and 28 percent were linked to serial offenders.

"I think it's the right thing to do for the victim who goes through the exam,'' Mahuna said. "I think we'll identify serial sexual offenders. ... We're trying to make a difference. You want it better when you leave than when you started.''

Mahuna no longer leads the Sex Crimes Unit. He was promoted to lieutenant in April and went back to patrol, where he serves as an East Precinct day shift supervisor.

More Promises
In June, Portland Detective Division Cmdr. George Burke went before the City Council and gave a public shout-out to police supervisors for deciding this year to count how many sexual assault kits sat untested in storage.

They "had a lot of foresight" in doing an inventory, he said, and deserved praise for recognizing national trends. He left out any mention of the bureau's dismal history in handling the kits.

While police and prosecutors across the country have said they've only in recent years recognized the importance of testing kits to identify serial rapists, Bittler's death should have made that glaringly obvious long ago in Portland, her parents said.

In the future, the bureau wants to send 100 percent of its sexual assault kits to a lab for testing, minus about 300 kits from victims who wish to remain anonymous.

"That's absolutely going to happen,'' said Meyer, the lieutenant who now oversees the Sex Crimes Unit.

But police made a similar pledge in 2002.

That's why Tom Bittler said the Legislature should step in to ensure police follow through on such promises. He wants a statewide standard for sending kits to the crime lab and doing regular inventories of untested kits.

At least seven other states have passed kit inventory laws.

A bill to do that here stalled this year. Instead, state police took the initiative, offering to coordinate a statewide inventory of untested kits and assemble a work group to recommend best practices.

Bittler also suggested that detectives who decide not to process a kit should have to contact that victim and get her to sign off on the decision. California and Utah require that now.

At the sentencing of his daughter's killer in 2004, Bittler spoke out in anger. "Did Melissa really have to die before these kits would be checked?" he said in court. "Is rape just not that big of a crime to be concerned about?"

Now he wants detectives to have to explain themselves.

"I'd like to see a detective inform a victim that her kit will not be submitted for testing after she's been through such a difficult exam,'' he said.

Copyright 2015 The Oregonian

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