Wisconsin county left 26 rape kits untested when Attorney General Schimel was the DA

WAUKESHA - As Waukesha County district attorney, Brad Schimel allowed at least 26 rape kits to remain untested, adding to a statewide backlog he is now vowing to clear out as Wisconsin attorney general.

In one case with an untested kit, a 3-year-old girl's parents worried she was molested at a party. In another, a teen reported falling asleep and waking up to a friend raping her. In a third, a homeless mother reported being raped at a motel near popular shopping centers.

USA TODAY NETWORK-Wisconsin identified the 26 kits by obtaining more than a dozen documents from Waukesha County police agencies under state open records laws. They are among 86 rape kits left untested in Waukesha County since 2002.

Since Schimel became attorney general in 2015, he has emphasized during public hearings and media interviews that thousands of untested rape kits had accumulated in police stations and hospitals — they were not piling up in any of the state labs that he oversees.

But police officials have attributed hundreds of the backlogged kits to local prosecutors' decisions, and from 2007 to 2014, Schimel oversaw some of those cases as Waukesha County's elected district attorney.

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The documents obtained by USA TODAY NETWORK-Wisconsin don't name prosecutors who reviewed each case, so it's unclear whether Schimel made those decisions himself. But as the district attorney, Schimel supervised all the prosecutors in the office.

He's now in charge of the state Department of Justice, which is using grant money to collect and test thousands of kits from across the state to search for DNA matches that could lead them to rapists or exonerate people accused of assault.

In the 3½ years Schimel has been attorney general, crime labs have tested fewer than half of Wisconsin's backlogged kits, and the testing has led to just two prosecutions so far.

Law enforcement officials made the decision to shelve the majority of the untested Waukesha County rape kits over the years, according to state records. In at least one case, police records show a victim withdrew a complaint two days after a suspect was arrested.

Of the 26 cases in which police records say Schimel's office stalled testing, nine convictions were obtained without rape kit results. In three more cases, suspects admitted to the assaults, according to police records.

In the remaining 14 cases, police said a suspect was known, a case was dismissed by prosecutors or the evidence was considered not useful. Or, the reasons for shelving rape kits were not clearly explained in the records.

All but five of the 26 kits were collected following invasive medical exams of children, police records show. Waukesha County agencies denied requests for some case records since they involved juveniles.

Schimel has referenced untested rape kits from his days as a Waukesha County prosecutor to show that he understood the problem before becoming attorney general. He declined interview requests for this story.

In May, Schimel told WISN radio host Vicki McKenna only 39 backlogged kits now slated for testing came from Waukesha, the third largest county in the state. While he was district attorney there, he developed procedures to address the problem, Schimel told McKenna.

"We put in protocols to make sure that kits were getting tested," he said. "I knew this. I knew the value of this."

State records confirm Waukesha County police agencies left fewer kits on their shelves than agencies in other urban counties, after adjusting for population. Brown County, for example, had about 21 kits per every 10,000 residents when the state began its project to process untested kits. In Waukesha County, the rate was about 2 kits per 10,000 residents.

Records denied

It took USA TODAY NETWORK-Wisconsin about three months to identify kits attributed to Waukesha County prosecutors who worked for Schimel, because a state office he oversees blocked access to documents.

Twice in 2017, Schimel's newly-created Office of Open Government denied requests for evidence inventories that local police agencies sent to the state — saying the documents' release could interfere with pending investigations or violate evidence laws. The inventories, requested by the news organization under the state open records law, contain mostly statistical information about untested rape kits and no victim names.

However, Waukesha County police agencies released the same records to the news organization. More than a dozen police agencies outside Waukesha County also released similar documents upon request.

The Waukesha County police documents and related case records suggest some kits weren’t tested years ago because investigators already identified a suspect and thought that DNA testing would provide little new information. The core question in those cases was whether the sex was consensual, not whether sexual contact occurred or with whom.

That rationale for declining to test kits is now considered by Schimel and other police officials to be outdated. Even when a suspect has been identified or admits to sex, DNA testing can help investigators discover related cases that might add credibility to one victim's claims.

"We know there is value in testing kits, even when the evidence does not seem necessary in the immediate case," Schimel said in May while announcing a final batch of Wisconsin kits had been sent to labs for DNA analysis.

A scared toddler, a sobbing teen

One of the backlogged Waukesha County kits that may now be tested involved a 3-year-old girl who said a man molested her at a party in November 2008.

Before bed that night, the girl told her parents, "My tootie hurts," in reference to her bottom. She also told them she was scared while the man tickled her.

The man denied any physical contact with the girl. Detectives at the Waukesha County Sheriff's Department closed the case in December 2008 after a discussion with assistant district attorney Debra Blasius, sheriff's department records show. Evidence in the case was considered so thin that it wouldn’t even be sent to prosecutors for review.

Asked by Department of Justice officials in 2016 why the girl’s rape kit wasn’t tested in 2008, the Waukesha County Sheriff’s Department said prosecutors hadn't asked for testing. The kit then remained in storage until October last year when it was sent to a lab.

The kit's current status is unknown. Department of Justice officials, who oversee state crime labs and rape kits testing, declined requests for the status of each Waukesha County kit collected during Schimel's tenure as district attorney. They cited a state law that restricts lab findings to law enforcement officials.

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In another case, an 18-year-old woman contacted authorities in July 2012 to report being raped in Butler, a small village in northeastern Waukesha County.

The teen, sobbing as she reported the assault, told investigators she fell asleep, fully clothed, at a friend’s home. She woke up naked to him having sex with her. His age was redacted from police records released to the news organization.

An investigator told the teen she would be contacted "if anything ... came of the sexual assault kit," the records say.

Case files show Butler police soon lost steam in their investigation. The teen’s friend acknowledged the sexual contact but denied raping her. He said the girl was awake but didn't speak. "It was weird, really weird," he told investigators.

Police investigators wrote the teen's rape kit "may not be rendered as useful at this time" since her friend acknowledged sexual contact, and they referred the case to prosecutors for review. Assistant district attorney Brian Juech called it a "he said-she said" case and declined to file charges.

In another Waukesha County case, a 30-year-old woman reported being raped in June 2010 at a Motel 6. The woman told Town of Brookfield police she had been recently evicted from her home and was seeking shelter for the night when an acquaintance offered her a bed in his motel room.

The case, bolstered by text messages between the woman and the man, led prosecutors to file sexual assault charges. They later dismissed the case. Sue Opper, the county's current district attorney, said a witness could not be located for court.

They did not have DNA results from testing the woman's rape kit when the decision was made. Town of Brookfield police did not deliver the woman's rape kit to a Milwaukee crime lab for testing until November 2017, police records show.

A new outlook on evidence

It remains to be seen whether evidence from any of those rape kits would have helped to convict a sex offender.

Hundreds of kits tested by state authorities over the past year have yielded no DNA matches with offender- and crime-scene databases, although offender DNA profiles entered in the future could yield new matches.

In public comments, the attorney general has characterized Wisconsin's evolving approach to rape kits as part of a maturing process among police, prosecutors and the state.

Last year, Schimel told lawmakers this: "We’ve grown a lot as a criminal justice system in a lot of ways and one of the ways is we’ve come to really recognize that a person who commits one sex offense often has committed many and often has multiple victims. Because of that, it does make sense to go back and look at testing some of these kits that were never submitted."