Sixth Circuit Takes Up Delays in Rape-Kit Testing

CINCINNATI (CN) – A class of female sexual assault victims argued before a Sixth Circuit panel Tuesday to revive claims that the city of Memphis did not process their evidence kits when the crimes were first reported.

U.S. District Court Judge John Fowlkes Jr. dismissed the case in 2017 after the city presented evidence that each of the lead plaintiffs’ kits had been submitted for testing.

A Memphis Police Department vehicle. (Photo by Thomas Machnitzki via Wikipedia Commons)

The Jane Doe plaintiffs sued in 2013, but were never granted class certification by Judge Fowlkes, despite claims that over 15,000 rape kits were untested.

The victims argued the city did not engage in meaningful discovery before the case was dismissed, and also claimed an affidavit about the tests was improperly admitted into evidence.

The affidavit was signed by Major Dan Crowe of the Memphis Police Department and its Special Victims Unit, and contained information regarding a Tennessee Bureau of Investigation serology/DNA report.

The document was admitted by Judge Fowlkes under the business record exception to hearsay evidence.

“It is clear,” Fowlkes wrote in his opinion, “from Major Crowe’s position with SVU and the dates of his employment, that the facts in the affidavit are based upon personal knowledge.”

Tuesday’s arguments focused on the case’s discovery issues, and attorney Robert Spence Jr., representing the plaintiffs, repeatedly told the panel that his clients never “had a meaningful opportunity for discovery.”

Spence told the judges that Memphis repeatedly failed to respond to discovery requests, even after he filed motions to compel with the district court.

He said the city “admitted in open court on at least four occasions” that its discovery responses were “incomplete and deficient.”

Senior U.S. Circuit Judge David McKeague asked why the more than five years of discovery conducted in the case was insufficient.

“I received a spreadsheet identifying certain [data] for a five-year period,” Spence responded. “It was of no value to me.”

The attorney elaborated, and told the judges he requested the underlying case files for each untested rape kit, as the city claimed the data in the spreadsheet could only be verified with the case files.

U.S. Circuit Judge Eric Clay asked Spence if he was prepared and willing to expend the resources necessary to examine each one of the thousands of case files.

“My plan,” the attorney said, “was to review each one of these investigative files.”

“Over 15,000?” Judge Clay asked.

“All 15,000 files,” Spence answered.

Judge McKeague pressed the attorney on what he thought he would find in the files.

“Do you have any basis,” the judge asked, “to say there will be a piece of paper

[in the files]

to corroborate your theory?”

“Without the files,” Spence answered, “I’m totally in the dark.”

“[The] bottom line,” McKeague continued, “is you don’t have any idea what’s in these files.”

“I can’t raise my right hand and tell you,” the attorney conceded.

Attorney Robert Meyers argued on behalf of Memphis, painting an entirely different picture of the information provided to the plaintiffs.

“We got behind,” the attorney admitted, “and we were scrambling to catch up [with discovery requests].”

He said the spreadsheets “were designed to answer specific questions from the interrogatories” provided by the plaintiffs.

Meyers told the panel the investigative files exist “only in electronic form … in a live police database,” which makes providing access to the files difficult.

Judge Clay asked the city’s attorney what his opposing counsel asked for, if not the files themselves.

According to Meyers, the plaintiffs requested the victims’ names, whether DNA evidence was taken, and whether that evidence was submitted for testing.

The attorney went on say the information was requested in the form of interrogatories, which were used to compile the data found in the spreadsheets provided to the plaintiffs.

“I thought Mr. Spence wanted and valued this information,” Meyers told the panel.

U.S. Circuit Judge Helene White also sat on the panel. No timetable has been set for the court’s decision.

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