Kevin Smith of New Orleans had been locked up for almost eight years on a non-violent drug charge awaiting trial. District Court Judge Tracey Flemings-Davillier finally ordered his release earlier this month after an appellate court ruled in June that his right to a speedy trial had been violated. According to The New Orleans Advocate, Smith spent more time in jail — 2,832 days — for a non-violent offense without being tried than any other individual in New Orleans.
Orleans Parish District Attorney Leon Cannizzaro agreed that Smith shouldn’t have been locked up this long without being tried, but he deflected blame away from his office. Rather, Cannizzaro criticized Smith and his defense lawyers for repeatedly attempting to delay a trial.
“How do I feel about it? Why didn’t the case go to trial? Well, because the defendant did a masterful job of continuing the case over and over again,” Cannizzaro insisted.
But defense attorney Martin Regan rejected Cannizzaro’s argument, countering that the prosecutors were responsible for the delays. “They knew they could not convict him, so the matter drug (sic) on and on and on. Mr. Cannizzaro, do not blame the defense for this.”
Smith was arrested by state police and federal officers in February 2010 after crack cocaine was found in a safe in his home. He was charged with one count of felony possession with intent to distribute. Smith had previously been convicted of drug offenses and was on parole at the time of his arrest. He faced up to 20 years in prison as a habitual offender.
Bail was set at $50,000, more than Smith could afford, so he was confined until trial.
Smith’s trial date was scheduled and postponed numerous times. It was originally set to begin in August 2011. During jury selection prosecutors claimed to discover new evidence. The original charge was then dropped and refiled, giving prosecutors another two years to take Smith to trial.
One year later, in August 2012, the day before Smith’s trial had been rescheduled to start, Hurricane Isaac hit New Orleans. Prosecutors then evoked a law passed after Hurricane Katrina to argue for another two years to bring Smith to trial.
The case was reassigned in November 2012 to a new judge. It seemed to drop away entirely until a judge took the case in May 2013.
Smith’s lawyers raised questions about his mental state in 2014, and requested that he receive a mental competency determination. After Smith was judged to be sane, he filed a motion to proceed to trial, but his own lawyers requested another delay. During this time, prosecutors offered him a 10-year plea deal, which Smith rejected.
Smith filed another motion on his own behalf in December 2016, arguing that his right to a speedy trial had been violated. His lawyers supported his motion. Flemings-Davillier rejected the motion in April 2017, but the 4th Circuit Court of Appeal overruled the district judge in June. The Louisiana Supreme Court declined to consider the case, and Flemings-Davillier finally agreed to order Smith’s release on November 13.
According to a search of the Orleans Parish Sheriff’s Office jail database, Smith was no longer locked up on Thursday, Nov. 16.
The Memphis Police Department failed to discipline detectives who routinely left rape kits untested, former Memphis Police Lieutenant Cody Wilkerson testified on November 8. Memphis police detectives closed rape cases without testing rape kits, he said, “hundreds, hundreds of them”, and without any consequences to their careers. Detectives also closed other rape cases only after minimal investigation, and when Wilkerson sought departmental charges against one such detective, Wilkerson’s superior refused. “What the detective did was criminal,” said Wilkerson. “We could not even hold him accountable.” (MPD did not respond to a request for comment.)
Wilkerson made these statements in a deposition taken in a Tennessee case filed March 26, 2014 against the city of Memphis and Memphis police. (The suit, first filed in Federal court, has moved to Shelby County circuit court.) The plaintiffs are three women — Meaghan Ybos, Madison Graves, and Rachel Johnson — who were sexually assaulted between 2003 and 2010 and whose rape kits were not tested for years.
In 2012, Ybos saw a news story reporting the arrest of a man she believed raped her in 2003. What she learned once she called the police was that her kit had never been tested.The delay allowed Anthony Alliano, a serial rapist who raped eight separate women in similar cases — including Ybos, Graves, and Johnson — to remain at-large. Alliano, who was convicted in 2013 and is now serving a 178 year sentence, raped two of the plaintiffs, Ybos and Graves, within three days of one another in 2003. As the three plaintiffs’ rape kits containing evidence of Alliano’s DNA sat untested, two kits neglected for as long as nine years, he continued to assault other women.
Memphis police failed to test more than 12,000 rape kits, the city finally acknowledged in 2014, with some dating back to the 1970s.
“It was never contemplated nor imagined that [a] rape kit would be misplaced, discarded or otherwise forgotten about,” the women’s lawsuit against the city and police states. Each woman “consented to the forensic examination of her body. She entrusted the custody of her personal body fluid sample as well as the DNA sample of her assailant to the agents of the City of Memphis and Shelby County. She entrusted that each of these would be used responsibly and in a diligent manner to identify, apprehend and prosecute the rapist.”
One of the women suing the city and Memphis police, Madison Graves, was 12 years old when Alliano raped her. As the suit states, “[h]e spied on her and accosted her as she was entering her parents’ house … subdued her, restrained her and raped her… Alliano’s face was hidden at all times such that DNA evidence was of particular import.” But when Memphis police arrived, the suit continues, the victim, not the perpetrator, fell under investigative scrutiny: “[t]he inquiries focused largely on her and presupposed the falsity of her story rather an on the particular facts relevant to the assault.” Alliano would remain at-large for nine more years.
Fifty more plaintiffs have since joined the three women since they first sued the city of Memphis and Memphis police in 2014, a suit slowly advancing toward trial despite the city’s attempts to dismiss it, and the Memphis mayor’s claims that the suit compromised his fundraising efforts for rape kit testing. In September, the city appealed a judge’s decision to deny the city immunity in the suit.
This suit could uncover more information about the city’s pattern and practice of failing to test rape kits. Former lieutenant Cody Wilkerson’s deposition this month has already exposed that the failure to test the kits was condoned and institutionalized in the police department.
Wilkerson retired in January 2016, after more than 26 years with the Memphis Police Department. During his time as a detective with the sex crimes unit from 2009 to 2012,Wilkerson said, it was “pretty common knowledge” in the unit that kits were untested, he said. Detectives routinely closed cases without sending rape kits to the Tennessee Bureau of Investigations (TBI) for serology or DNA testing. In one case, in which a kit was tested and matched a sample in the FBI database, five years lapsed before police followed up. “The answer to a crime,” he said, “had sat there on somebody’s desk for five years.”
But Wilkerson offered specific details on how some Memphis police prevented him from taking action to address their poor investigations of rape. He testified that Lieutenant Wilton Cleveland told him to stop talking to a victims’ advocate with questions about lapsed investigations, “because it was making the police department look bad.” (Wilkerson said he continued to talk to her.) When Wilkerson later served as a supervisor in the sex crimes unit, he tried to make some changes from within the department. “I wanted some oversight. I wanted more supervision. I wanted detectives to not have the ability on their own to close a case… and I told that to everybody that I could,” Wilkerson said. “But the answer always was, we now know better, we do better… those were mistakes made in the past.” Then he said he discovered an abandoned investigation, and he linked it to a man police had since arrested for a different sex offense. Wilkerson said he then notified Major Don Crowe that he had probable cause to charge that detective with “accessory after the fact to aggravated rape,” and that Crowe would not allow him to discipline the detective.
As the suit has progressed, the city has attempted to spin its belated acknowledgment of the neglected rape kits into a kind of success story. Earlier this year, the city’s Sexual Assault Kit Task Force submitted three cases for the “DNA Database Hit of the Year” award, administered by a forensic DNA policy firm. One was named a finalist.
But seven years ago, when the untested kits were first reported by the local news, the city denied there was any need to test all the kits. Citing a case where a woman who had first reported a rape later told police she didn’t want to pursue it, in February 2010 Director of Police Services Larry Godwin wrote to Memphis television station WREG, “There are many more cases that resemble this one. This submission is made at what cost to the tax payer?” (Federal grants through the Forensic DNA Reduction Program have been available since 2004. As of 2010, Tennessee had received more than $4M through this program; in 2004, 2006, and 2007, the state did not apply for these funds.)
Since then the city’s interest in the rape kits had changed dramatically, especially after Memphis was awarded a $1.07 million grant in 2017 from the Department of Justice, on top of previous grants totaling $3.9 million, which allowed them to test nearly all the remaining backlog. According to the city’s Sexual Assault Kit Task Force, 250 kits remained untested as of September 2017.
Today, Memphis wants to be seen as a “model” of taking rape kit testing seriously. But the kits are just one part of the department’s failures in sexual assault cases. The much more significant, and possibly still unresolved problem — as Wilkerson’s testimony and the plaintiffs’ experiences with Memphis police point to — is law enforcement’s pattern of disregard for survivors of rape.
On paper, he was the antithesis of the traditional prosecutor. Coming from the criminal defense world made him an anomaly.
Gonzalez belongs to a small but growing class of prosecutors who have won elections across the country by promising to rethink draconian sentencing and curb mass incarceration. They pledge to focus on violent crimes and deprioritize low-level offenses, reversing decades-long efforts to appear tough on crime. These smart-on-crime prosecutors are a minority group among the country’s 2,300 prosecutors, all of whom have enormous discretion to charge members of the public as they see fit.
But now that a year has passed since his election, Gonzalez’ report card sends mixed signals about the future of prosecution in Nueces County.
Out of the gate, the newcomer unveiled a pretrial diversion program for people charged with marijuana possession. Rather than jail those found with 2 ounces of pot or less, the office now imposes a $250 fine and sends them to a drug class, with the option of enrolling online. Defendants who can’t foot the bill must complete 25 hours of community service. Local defense attorneys told In Justice Today that the program is “excellent” and “highly effective.” Along these lines, Gonzalez positioned himself as a district attorney who opposes tough sentencing. In May, he signed a letter reprimanding Attorney General Jeff Sessions for directing federal prosecutors to seek mandatory minimum sentences whenever possible, even for minor drug crimes.
According to Gerald Rogan, a long-time criminal defense attorney in Nueces County, the most notable change since Gonzalez took office is increased communication between prosecutors and defenders. Following up on his campaign promise, the district attorney has made himself more accessible to defense counsel than his predecessors. He is also more transparent about evidence, providing discovery in a timely manner instead of ambushing defendants during trial, Rogan says.
Despite these well-received reforms, there is reason to believe that Gonzalez isn’t fully living up to his reform pledge.
During his campaign, Gonzalez pointed to the case of Courtney Hayden as an example of prosecutorial misconduct under his predecessor, pledging more transparency under his leadership. Yet he now appears to be reneging on his promise to clamp down on prosecutors who withhold exculpatory evidence, including those involved in the Hayden case.
Hayden was tried by Jenny Dorsey, a Nueces County prosecutor under Skurka, for the fatal shooting of Anthony Macias. The alleged murder occurred after Hayden and Macies committed aggravated robbery. According to her attorney, Lisa Greenberg, Dorsey had planned to turn herself in for the robbery, and Macias was afraid that she would implicate him in the crime. He subsequently broke into Hayden’s home and cornered her in a bathroom. Hayden then fired a shot with the muzzle on Macias’ chest — a wound that indicated Hayden was defending herself, according to the medical examiner working on the case. But Dorsey’s team didn’t tell the defense about the exculpatory evidence until after Hayden was convicted and sentenced to 40 years in prison.
In June, a judge overturned Hayden’s murder conviction based on the revelation, and threw out the possibility of a retrial. But Dorsey remains on Gonzalez’ team of prosecuting attorneys, and the district attorney recently filed a notice of appeal to challenge the judge’s ruling. “I would hate to see [Gonzalez’] name behind some bad law…that says it’s OK to cheat and hide evidence. I’m hoping that he supports the idea that if you cheat, you lose,” Greenberg said.
Gonzalez told In Justice Today that he hasn’t decided whether he’ll actually move forward with an appeal. “I don’t know where I stand on it. Everything I do, I try to do it with… forethought and [look at] every single angle,” he said. “If a jury would cut her loose, I don’t care one way or another…If they walk her, I’d be fine with that. But that judge took that opportunity away from us.”
The district attorney said he’s known Dorsey for more than a decade as someone who is “honest and open” and was simply following her supervisor’s orders — hence his decision to keep her on staff. When it comes to withholding evidence, he claims things are different now. “Everyone knows that won’t be tolerated,” he said.
Greenberg applauds the newcomer for pushing reform, but remains skeptical of how far he can take his message with multiple prosecutors from the Skurka administration working alongside him. She says many are still eager to “convict at all costs.”
“It’s hard to change the mentality of some prosecutors who over-charge, or don’t see justice like you do,” she said.
“It’s disappointing to see the district attorney in Nueces County seeking the death penalty at a time when so many prosecutors are moving away from it and juries are rejecting [it],” said Kristin Houle, executive director of TCADP.
But Gonzalez, who says his views on the death penalty “change every single day,” does not see himself as a prosecutor pushing for the most severe punishment in the modern-day justice system. He argues that Garza’s trial is merely a test case. “I’m not seeking the death penalty — I’m only presenting it to the jury,” he said. If Garza is convicted and the jury doesn’t send Garza to death row, Gonzalez says he likely won’t pursue capital punishment in the future.
So far, Gonzalez appears more progressive than some, but not quite the reformer he claimed he would be. “Almost half the [voters] didn’t think I was the right person. I’m trying to earn people’s vote every single day,” the “not guilty” district attorney said. “I didn’t think some of these decisions would be so hard.”