By Melissa Gira Grant

Source: In Justice Today

November 21, 2017

The Memphis Police Department failed to discipline detectives who routinely left rape kits untested, former Memphis Police Lieutenant Cody Wilkerson testified on November 8. Memphis police detectives closed rape cases without testing rape kits, he said, “hundreds, hundreds of them”, and without any consequences to their careers. Detectives also closed other rape cases only after minimal investigation, and when Wilkerson sought departmental charges against one such detective, Wilkerson’s superior refused. “What the detective did was criminal,” said Wilkerson. “We could not even hold him accountable.” (MPD did not respond to a request for comment.)

Wilkerson made these statements in a deposition taken in a Tennessee case filed March 26, 2014 against the city of Memphis and Memphis police. (The suit, first filed in Federal court, has moved to Shelby County circuit court.) The plaintiffs are three women — Meaghan Ybos, Madison Graves, and Rachel Johnson — who were sexually assaulted between 2003 and 2010 and whose rape kits were not tested for years.

In 2012, Ybos saw a news story reporting the arrest of a man she believed raped her in 2003. What she learned once she called the police was that her kit had never been tested. The delay allowed Anthony Alliano, a serial rapist who raped eight separate women in similar cases — including Ybos, Graves, and Johnson — to remain at-large. Alliano, who was convicted in 2013 and is now serving a 178 year sentence, raped two of the plaintiffs, Ybos and Graves, within three days of one another in 2003. As the three plaintiffs’ rape kits containing evidence of Alliano’s DNA sat untested, two kits neglected for as long as nine years, he continued to assault other women.

Memphis police failed to test more than 12,000 rape kits, the city finally acknowledged in 2014, with some dating back to the 1970s.

“It was never contemplated nor imagined that [a] rape kit would be misplaced, discarded or otherwise forgotten about,” the women’s lawsuit against the city and police states. Each woman “consented to the forensic examination of her body. She entrusted the custody of her personal body fluid sample as well as the DNA sample of her assailant to the agents of the City of Memphis and Shelby County. She entrusted that each of these would be used responsibly and in a diligent manner to identify, apprehend and prosecute the rapist.”

One of the women suing the city and Memphis police, Madison Graves, was 12 years old when Alliano raped her. As the suit states, “[h]e spied on her and accosted her as she was entering her parents’ house … subdued her, restrained her and raped her… Alliano’s face was hidden at all times such that DNA evidence was of particular import.” But when Memphis police arrived, the suit continues, the victim, not the perpetrator, fell under investigative scrutiny: “[t]he inquiries focused largely on her and presupposed the falsity of her story rather an on the particular facts relevant to the assault.” Alliano would remain at-large for nine more years.

Fifty more plaintiffs have since joined the three women since they first sued the city of Memphis and Memphis police in 2014, a suit slowly advancing toward trial despite the city’s attempts to dismiss it, and the Memphis mayor’s claims that the suit compromised his fundraising efforts for rape kit testing. In September, the city appealed a judge’s decision to deny the city immunity in the suit.

This suit could uncover more information about the city’s pattern and practice of failing to test rape kits. Former lieutenant Cody Wilkerson’s deposition this month has already exposed that the failure to test the kits was condoned and institutionalized in the police department.

Wilkerson retired in January 2016, after more than 26 years with the Memphis Police Department. During his time as a detective with the sex crimes unit from 2009 to 2012, Wilkerson said, it was “pretty common knowledge” in the unit that kits were untested, he said. Detectives routinely closed cases without sending rape kits to the Tennessee Bureau of Investigations (TBI) for serology or DNA testing. In one case, in which a kit was tested and matched a sample in the FBI database, five years lapsed before police followed up. “The answer to a crime,” he said, “had sat there on somebody’s desk for five years.”

But Wilkerson offered specific details on how some Memphis police prevented him from taking action to address their poor investigations of rape. He testified that Lieutenant Wilton Cleveland told him to stop talking to a victims’ advocate with questions about lapsed investigations, “because it was making the police department look bad.” (Wilkerson said he continued to talk to her.) When Wilkerson later served as a supervisor in the sex crimes unit, he tried to make some changes from within the department. “I wanted some oversight. I wanted more supervision. I wanted detectives to not have the ability on their own to close a case… and I told that to everybody that I could,” Wilkerson said. “But the answer always was, we now know better, we do better… those were mistakes made in the past.” Then he said he discovered an abandoned investigation, and he linked it to a man police had since arrested for a different sex offense. Wilkerson said he then notified Major Don Crowe that he had probable cause to charge that detective with “accessory after the fact to aggravated rape,” and that Crowe would not allow him to discipline the detective.

As the suit has progressed, the city has attempted to spin its belated acknowledgment of the neglected rape kits into a kind of success story. Earlier this year, the city’s Sexual Assault Kit Task Force submitted three cases for the “DNA Database Hit of the Year” award, administered by a forensic DNA policy firm. One was named a finalist.

But seven years ago, when the untested kits were first reported by the local news, the city denied there was any need to test all the kits. Citing a case where a woman who had first reported a rape later told police she didn’t want to pursue it, in February 2010 Director of Police Services Larry Godwin wroteto Memphis television station WREG, “There are many more cases that resemble this one. This submission is made at what cost to the tax payer?” (Federal grants through the Forensic DNA Reduction Program have been available since 2004. As of 2010, Tennessee had received more than $4Mthrough this program; in 2004, 2006, and 2007, the state did not apply for these funds.)

Since then the city’s interest in the rape kits had changed dramatically, especially after Memphis was awarded a $1.07 million grant in 2017 from the Department of Justice, on top of previous grants totaling $3.9 million, which allowed them to test nearly all the remaining backlog. According to the city’s Sexual Assault Kit Task Force, 250 kits remained untested as of September 2017.

Today, Memphis wants to be seen as a “model” of taking rape kit testing seriously. But the kits are just one part of the department’s failures in sexual assault cases. The much more significant, and possibly still unresolved problem — as Wilkerson’s testimony and the plaintiffs’ experiences with Memphis police point to — is law enforcement’s pattern of disregard for survivors of rape.

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