3 INVESTIGATES: Destruction of rape kits under review following Channel 3 investigation
Twenty-five rape kits dating back to 2000 were incinerated after a now retired judge authorized it under the wrong state law in October.
The Hamilton County Sheriff's Office has since issued a directive to stop destroying sexual assault kits until it receives direction from the Hamilton County District Attorney's Office.
"Right now we're not destroying any other kits until we get further guidance because we know that change is coming," said Hamilton County Sheriff's Capt. Bill Johnson, who oversees investigations.
The change at the sheriff's office comes after a Channel 3 investigation highlighted how local law enforcement agencies had more than 250 untested rape kits sitting on shelves in evidence rooms. In most of the cases, no one was ever arrested. Some cases were ruled unfounded or suspended. Other cases were exceptionally cleared, meaning they were closed out due to other circumstances. For example, the suspect died.
In October 2014, Hamilton County Criminal Court Judge Rebecca Stern signed off on an order to destroy a total of 25 rape kits connected to 24 cases along with other supporting evidence. A sheriff's office sergeant asked for the order.
Stern declined to comment in detail on the case when asked, but she did say that she signed the order to destroy the kits.
“A lot of times it's weapons and things they don't need in cases. … They're just piling up. They come in with an affidavit and they list it,” Stern said. “But they come in and they swear to me that they don't need this evidence. … I have to trust them.”
READ MORE | More than 250 sexual assault kits never sent to crime lab
The law cited on the order, which justified the destruction of the kits, applies only to drug evidence – not evidence surrounding reported sexual assaults.
Stern, who retired Friday and moved to Puerto Rico, could not be reached for additional comment on why she signed off on a law that does not apply to destroying rape kits.
Hamilton County District Attorney Neal Pinkston filed the review Friday pointing out the discrepancy, saying the wrong law was cited. He also pointed out that his office never had an opportunity to review the order.
“We determined that those kits that had been destroyed, we weren't able to review that list before it was submitted back in October,” Pinkston said. “[The sheriff's office] had cited an incorrect statute asking a judge to destroy property under the wrong statutory provision."
Whether any future action could be taken on the cases with destroyed kits depends on several factors, he said.
“Anytime you lose pieces of evidence, it obviously impacts the case in a negative way,” he said in an interview with Channel 3.
READ MORE | Expert says unfounded rape cases can lead to attackers going free
Out of the 25 destroyed kits, 17 were untested, according to sheriff's office data.
“Each case stands on its own in that regard,” Pinkston said. “Some cases we would not be able to prosecute if there wasn't a lot of evidence beyond the kit.”
Of the 25 total kits, seven of the cases were cleared by arrests, another seven were unfounded, three were exceptionally cleared and eight of the cases were suspended. Twelve of the cases involved juveniles.
The sheriff's office initially reported that 80 kits were destroyed. The department later went back and checked records showing only 25 kits were incinerated by an out-of-state contracted company. Channel 3 was able to confirm the number by obtaining a copy of the court order that authorized destruction.
The sheriff's office does not have specified guidelines on how long to maintain evidence in rape cases or a standard process that determines when cases should be destroyed. Officials said cases are destroyed on a “case-by-case” basis.
A new law recently signed by the governor will change that. It will require investigators to test kits within 60 days and store them for at least three years. It will also require departments to follow established guidelines.
In interviews with Channel 3, sheriff's office staff said they are working to develop protocols that would specify how long evidence should be maintained.
Detectives have to sign off on each case. They are responsible for checking in with prosecutors to decide what evidence is needed, should a case moves forward. Deputies, who maintain the property room, rely on forms filled out by detectives before petitioning the court to destroy evidence.
“None of this… is where we say, ‘We need room on this shelf. We need to get rid of this stuff.' It's all worked through the district attorney's office, investigators and courts,” said Hamilton County Sheriff's Chief Deputy Allen Branum. “They determine when we can destroy evidence.”
That contradicts what Pinkston's review states.
No one from the sheriff's office asked for the order to be reviewed before the kits were destroyed.
“We don't review every one of [the orders.] Usually it's based upon … who in the sheriff's office files for it,” Pinkston said. “Sometimes they will drop by and ask us to review it. In this particular instance, I don't recall that happening.”
Sheriff's officials argue that prosecutors reviewed the cases.
“They may not remember [the] specific cases,” Branum said.
Sometimes detectives only call up to ask for feedback on cases. There is no paperwork showing whether a case was reviewed by a prosecutor, Branum said.
“Our investigators … don't want to destroy things that could be used in a criminal case at any time,” he said. “So, we're very careful about what we destroy.”
The sheriff's office stands by the destruction of the kits. However, officials realize additional kits currently being held might be tested in the future.
“What we're doing is waiting for guidance from the DA's office or the TBI [Tennessee Bureau of Investigation] as to how they want to handle these cases in the future,” said sheriff's Capt. Johnson. “If they want them all sent to the lab, we'll send them all. They're going to have to give us that guidance.”
Pinkston says ideally every rape kit should be tested.
"Those that have been reported, I think it's important that they are. And I think it may help solve a crime that occurs in the future,” he said. “But I know that's probably impractical when it comes to every kit being tested for a number of reasons."
Pinkston hopes to establish a review process before evidence is destroyed.
“In the future, and in accordance with the new law that now exists, that there's a standard policy that we have with law enforcement,” he said. “That we review these… specific pieces of evidence before they ask a judge for an order destroying them."
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