Errors in NC Rape Kit Procedure May Have Kept Aguilar's Accused Murderer Free

By Tristan Dufresne 12/17/18 12:35PM

LUMBERTON — Revelations in the case of a Lumberton 13-year-old girl whose body was found in Robeson County roughly three weeks after her kidnapping may illustrate how delays in North Carolina's system of testing rape kits (DNA evidence collected from victims of sexual assault to identify perpetrators) have become a detriment to public safety.

State Attorney General Josh Stein revealed this past February that 15,000 kits across 563 agencies remain untested after a statewide rape kit audit, and even those tested may not be followed-up on.

Michael Ray McLellan, the man being charged with the abduction, rape and murder of Hania Noelia Aguilar, whose body was discovered on November 27, has since Aguilar's death been charged with a 2016 sexual assault. DNA evidence from that crime was matched to the man's DNA in 2017 and the match reported to local authorities, who did not act on the information.

Prosecutors have brought criminal charges that present Aguilar's death as a possible consequence of the state's rape kit system's shortcomings.

The kidnapping of Aguilar captured headlines, and law enforcement agencies posted offers of cash rewards for information leading to her safe return. The eighth-grader was kidnapped during daylight and thrown into a vehicle on November 5. The tragic outcome — her body was found near a road 22 days after she was taken — has attracted national attention.

Robeson County District Attorney Johnson Britt held a press conference on Wednesday, December 12, during which he informed reporters that, in a private conversation with Aguilar's mother, he said that "her daughter might be alive" if the Robeson County Sheriff's Office had followed proper procedure with evidence implicating her alleged killer's involvement in a previous assault case.

"It was a difficult conversation to have," Britt said. "Maybe the most difficult conversation I've had with a victim's family. Had it [a matched rape kit] been followed up on, her daughter might be alive."

In 2016, McLellan was DNA-matched to a rape kit from a rape reported, also in Robeson County. The rape kit's resulting DNA paired with DNA in a federal database from a previous felony conviction of McLellan. The state crime lab sent this result to the Robeson County district attorney's office, still under Britt at the time, which sent them to the sheriff's office. The next procedural step was for the sheriff's office to locate McLellan to confirm the results with a new genetic sample. If that also matched, he may have been held and prosecuted for the rape and, as Britt hypothesized, would not have been free to allegedly commit further crime.

"Had we made an arrest, in all likely Mr. McLellan would have remained in jail because of his prior history and because of the severity of the charges, and we would have avoided Hania's death," Britt said.

The information package delivered to the sheriff's office in 2017 also had a backup disc; that is also missing.

Meghan Clement, a forensic DNA and serology consultant of Clement Consulting, said that rape kit matches are very accurate. "With the traditional autosomal DNA testing, which is what every laboratory in the country does, [a genetic profile] is unique to individuals except identical siblings," Clement said. "Generally it is unique as long as they have gotten sufficient genetic information. And usually they have to have a certain amount to run it through the database so by that point it would be considered unique.

"That could give probable cause to arrest someone; they have to follow up and get another sample [from the suspect] and usually run it as a verification."

McLellan is now being prosecuted for the 2016 crime. The trial is scheduled to begin on January 7, 2019, about two weeks after his trial for crimes against Aguilar commences on December 21, 2018.

Sheriff Burnis Wilkins, who took over the office this past election, issued a written statement to Raleigh television station WRAL on December 12 announcing an internal affairs investigation into why no action was taken at the time, saying that "once we determine what occurred, the citizens will be made aware of the findings." He reported that procedure has already been changed to increase accountability.

Ilse Knecht, Director of Policy and Advocacy for the Joyful Heart Foundation, an organization with a mission of changing "society's response to sexual assault," told the Sundial that the majority of rape kits are handled by municipal, county and state forensics teams, and that "very few make it to [the federal] level" the way Aguilar's did. For example, the one for the alleged 2016 assault was handled by the state. Local and state sex crime units are "often woefully underfunded and understaffed," she said.

"The problem is basically the criminal justice system doesn't treat sexual assault like the violent crime that it is. That means they don't put the funding into the system to respond to sexual violence."

Broader societal attitudes such as classism and sexism exacerbate the problem, Knecht said, especially in more vulnerable communities, such as the Hispanic immigrant population of which Aguilar was a part.

Knecht noted that while the probe into the Sheriff's Office and its inaction may simply reveal a team of overworked but well-intentioned investigators who missed a signal in the noise, the Aguilar case is still indicative of "why we don't only need to test the [rape kits] but we have to investigate the cases that come out of the testing.

"This has happened in other places where a hit notification sits on a detective's desk and then something horrible happens," she said, referring to the alert that the genetic information has been matched to a person in the system. "It's a terrible lesson to learn and a horrible way to learn it... It's also why we've worked so hard to ensure that any federal funding that goes out to test kits also includes funding to investigate and prosecute."

After the disclosure of a 15,000-kit backlog in February, the General Assembly passed House Bill 945, which seeks to address the problem at multiple levels by establishing the Statewide Sexual Assault Evidence Collection Kit Tracking and Information Management System (STIMS), to ensure "that every sexual assault evidence collection kit in North Carolina be tested."

The law, which took effect on October 1, requires compliance by "any law enforcement agency, medical provider, or forensic laboratory that has in its custody a previously untested sexual assault evidence collection kit used for a forensic medical examination."

The state backlog is also making the jobs of municipal and county law enforcement investigators harder. An officer in the Triangle, who asked not to be named in this article, said that in such cases, "I [will] have a victim who wants and deserves closure who isn't going to get it, and is going to blame us because we aren't doing enough."

"Then the next time they ask for help or we need their help, it's going to be remembered," the officer added.

District Attorney Britt said that when they informed Aguilar's mother about the error in handling the relevant rape kit, leaving McLellan uninvestigated, she asked if they had fixed the problem and closed the gap. "We assured her that we are working on that," he said.

In accordance with the above-mentioned new law, the North Carolina Department of Public Safety was charged with drafting a proposal on how to test the entire backlog efficiently, and to submit a written plan to the General Assembly by December 1, although DPS has not yet provided a public statement addressing the deadline. DPS has not responded to the Sundial's request for comment.

McLellan appeared in court on Monday, December 10 for the Aguilar case, and a Robeson County judge revoked his bond. Britt said McLellan will be moved to a Raleigh jail, citing security concerns.

When DNA in the SUV used to kidnap Aguilar was linked to McLellan, he was already in custody, on charges of possession of a firearm by a felon, second-degree kidnapping and attempt to rob with a dangerous weapon.

The Piedmont Sundial reports on law enforcement investigations, arrests and all criminal proceedings from the standpoint that under the United States Constitution every person is presumed innocent under the law unless found guilty in court.