San Juan County 'rape kits' go untested

FARMINGTON — The Department of Public Safety is calling on police agencies throughout the state to submit a backlog of more than 1,900 untested sexual assault evidence kits to the department's crime lab in Santa Fe for testing in the hopes of catching more offenders.

Cabinet Secretary Greg Fouratt told The Daily Times Friday that the DNA collected in those kits, some of which date back decades, could be entered into a national database and matched with a felony offender anywhere in the country.

"We want to get them in the lab and out of the police evidence rooms," Fouratt said. "Even if it is a backlog, it will be a backlog in our office, and not theirs."

The department sent letters on Sept. 8 to 148 law enforcement agencies in New Mexico asking for a tally of the number of sex assault kits collected as evidence during criminal investigations but never tested.

Statewide, 113 agencies reported 5,341 sex assault kits that were collected but not tested.

The majority of those kits, 3,476 in total, are held by the Albuquerque Police Department and will need to be tested by crime labs dedicated specifically to that agency, according to Fouratt. But Fouratt said the remaining 1,865 cases reported by the state's smaller police agencies will need to be tested by the Department of Public Safety.

In San Juan County, almost 100 sex assault kits were reported untested by law enforcement officials. None of the police agencies contacted by The Daily Times reported having specific policies for how to process the kits.

Fouratt said he went before the Legislative Finance Committee on Wednesday and requested $2 million to hire two DNA specialists and purchase the equipment necessary to analyze the state's untested sex assault kits, which could take more than three years.

Fouratt said his agency sent a letter to Navajo police regarding untested kits, but never received a response. Jesse Delmar, executive director of the Navajo Nation Division of Public Safety, said in an email Friday Navajo police agencies in Shiprock and Crownpoint reported no untested sex assault kits. FBI spokesman Frank Fisher said the bureau handles most child sexual assault cases on the Navajo Nation. Fisher said the bureau was not aware of any backlog at its testing facility in Quantico, Va.

The San Juan County Sheriff's Office reported 20 untested kits, but has since sent all its kits, except four, to the state's crime lab, according to detective Lt. Kyle Lincoln.

"Those four kits that remain untested were submitted anonymously and will remain untested unless the victim seeks prosecution," Lincoln said.

Lincoln said his office has no specific policy addressing when detectives should test rape kits, but he said all forensic evidence should be tested.

Bloomfield police Chief Randy Foster reported 17 untested sex assault kits held by his agency. Aztec police Capt. Troy Morris reported 18 untested kits.

Foster said it was difficult to create a policy for every different situation that could arise.

"A lot of times, you have to look at each case individually and think of how to address it," Foster said.

Morris said that when his department audited its evidence room they found kits for crimes that were decades old.

"If they admit guilt, we may not test them, but we should be sending those, too, because they go into the (Nationwide DNA) system," Morris said. "So, I hope we don't have those, but these are cases we have going back decades."

Farmington police spokeswoman Georgette Allen said the department reported to DPS on Oct. 15 that it had 143 sex assault kits in its evidence room, 58 of which had not been tested. Fourteen of those 58 kits were associated with open criminal cases and are being sent for testing, Allen said.

The remaining 44 kits were not tested for a variety of reasons, according to Allen. Some cases were never prosecuted, or the victim was examined, but asked to remain anonymous, she said.

In other cases, the suspect confessed and testing was determined to be unnecessary, Allen said.

Regardless, Allen said the department was working to submit all its kits to the Department of Public Safety for testing.

The Farmington Police Department, which receives guidance from the national Commission on the Accreditation for Law Enforcement Agencies, also does not have a policy for testing sex assault kits.

"However, we continue to work with DPS and send kits that are identified as untested, to be tested under the umbrella of Katie's law," Allen said.

Katie's Law requires DNA be collected from individuals arrested for a

felony offense in the state of New Mexico. The DNA results are kept in a national database maintained by the FBI.

Fouratt said all kits that aren't anonymous should be sent to the department of public safety for testing.

"Let's assume a defendant pleaded guilty in a San Juan County rape case five years ago, or this year," Fouratt said. "Let's assume he is in prison or something. A rape kit from 1999 could bear that defendant's DNA, and we might be able to link offenders, through Katie's Law or otherwise, to those untested rape assault kits. We don't know what we don't know."

Katie Sepich, a 22-year-old grad student, was raped and strangled on Aug. 31, 2003, outside her home in Las Cruces. Her killer, Gabriel Adrian Avila, was connected to the crime based on DNA evidence collected after his conviction in 2006 for an unrelated offense.

New Mexico Gov. Susana Martinez prosecuted Avila for Sepich's murder when she was the District Attorney in the 3rd Judicial District in Doña Ana County.

Lonergan said the state's Department of Public Safety is working hard to ensure that untested sexual assault kits are crosschecked against the nationwide DNA database.

Martinez's spokesman, Michael Lonergan, said in an email Friday that Martinez lobbied to pass the original version of Katie's Law in 2006 and the governor signed a bill in 2011 expanding the law.

"It's a worthwhile use of law enforcement and forensic laboratory resources that can help hold more criminals accountable and provide more justice for victims," Lonergan said.

Eleana Butler is executive director of the Sexual Assault Services of Northwest New Mexico, a nonprofit agency that provides comprehensive services to sexual assault victims. The agency's sexual assault nurses examine adult and juvenile rape victims in the region and create the kits used by law enforcement agencies in their criminal investigations.

Butler said she believed all kits, with the exception of kits collected anonymously, should be tested.

""By not testing, we fail to honor those victims who had the courage to come forward and report the assault," Butler said.

Nurse clinical manager Kathy Meredith said DNA collected properly can remain viable for testing for years.

San Juan County District Attorney Rick Tedrow said the criminal cases may not be viable for that long, however, due to the statute of limitations for various sex offenses.

Tedrow said that while there is no statute of limitations for a first-degree felony, a second-degree felony must be prosecuted within six years of when the offense was committed. The window for prosecution is even smaller for lesser offenses.

Tedrow said the statute of limitations should be increased because DNA can pin a person to a crime decades after the fact.

"Years ago, that was not an ability, but it is now," Tedrow said.

Tedrow said he believed that even if the statute of limitations has expired, it was still important to test the backlog of sex assault kits.

"Even if a case cannot be prosecuted, it provides closure for a person," Tedrow said.

Steve Garrison covers crime and courts for The Daily Times. He can be reached at 505-564-4644.