Rape kit backlog: DNA matches suspect to teens’ rape 6 years later

SACRAMENTO — One minute they were getting into their car on Allston Way in Berkeley just before 10 on an unseasonably warm Friday night. The next, a stranger had a black handgun to their heads.

“Don’t look at me,” the man told the teens, who were 15 and 19, before he jumped into the backseat. He ordered the older teen to drive and the younger teen to put her head in her lap.

On a dead-end street under a nearly full moon, the man blindfolded the older teen with her own sweater and raped her in the car. Then he ordered the girls to trade places and shielded the younger girl’s eyes with one hand while digitally penetrating her with the other.

When he was done, he got out of the car and walked away with their money.

“Have a good day,” he told them before he was out of sight, according to court documents, a probable cause declaration and a summary of what the victims told police.

That was May 16, 2008.

What the teens did next is crucial. They did exactly what police tell victims of sexual assault to do. They drove straight to Kaiser Permanente Medical Center in Richmond, where Berkeley police were called. Police brought the 19-year-old victim to Highland Hospital in Oakland, one of 45 sites across the state that conduct sexual assault forensic exams.

Often called a rape kit, the exam is a painstaking hours-long process where blood, urine, fingernail clippings, hair and swabs from the mouth, genitals and anus are collected. A victim’s clothes and underwear are bagged as evidence. Photos are taken of her body.

Trained nurses comb over victims, looking for any traces of DNA evidence. Once completed, the kit is given to police, who can have the kit tested and analyzed in a lab to see whether it produces a DNA profile that might identify a suspect.

In California, when someone is convicted of a felony, the person’s DNA profile is entered in a national database, a tool that has helped law enforcement solve crimes involving unknown suspects. The national database is called Combined DNA Index System, or CODIS, which contains 12.1 million genetic profiles of known criminals and unsolved cases.

The database would have identified the teens’ alleged attacker, too. The DNA would have pointed to an Antioch man with a lengthy criminal record.

“It would have,” Alameda County District Attorney Nancy O’Malley emphasized.

Instead, the evidence sat untouched on a shelf in a Berkeley Police Department evidence room, one of 1,900 untested rape kits in Alameda County — and one of an estimated 400,000 across the country.

And, in the case of the teens, the evidence remained there for six years.

“This guy was already in the database,” O’Malley said. “Had that kit been tested in 2008, we would have known who he was then.”

And a new victim might not have been assaulted, O’Malley added.

Rape kit backlog

Over the past two years, O’Malley’s office has been packing up rape kits in Oakland and shipping them to a lab in Virginia for analysis. Now, they are sending 100 evidence kits every month. The next box is already packed, ready to send.

The rape kits were collected from 19 law enforcement agencies in the county after O’Malley’s office used its own budget and won grants to help address the immense backlog. Lab analysis of each kit typically costs between $800 and $1,500. Law enforcement also is required by law to reimburse hospitals for the cost of collecting the forensic evidence.

O’Malley has long been an advocate for sexual assault victims and has traveled to Washington to successfully lobby for federal funding to help law enforcement agencies clear the nation’s backlog of rape kits. In the past two years, the Obama administration has allocated more than $80 million to law enforcement agencies to deal with the backlog. An additional $41 million is proposed for next year’s budget.

Law enforcement officials say there are legitimate reasons for not testing some rape kits, since the evidence isn’t always needed. In many cases, the suspect is known to the victim and a positive ID through DNA is unnecessary.

But, proponents of testing all rape kits say the evidence is critical in linking suspects to multiple cases, and even if the statute of limitations for a prosecution has passed, the information can be used when sentencing a suspect for a new crime.

“What we are seeing across the country is that predators will assault many people and we are linking those cases through DNA,” O’Malley said.

In the case involving the teens, O’Malley said she doesn’t know why Berkeley police did not get the rape kit analyzed. A Berkeley police spokesperson could not be reached for comment.

O’Malley said the kit was found when her office asked law enforcement agencies to inventory all of their untested rape kits.

At the time, O’Malley was working with former Assemblywoman Nancy Skinner, D-Berkeley, on a bill to require law enforcement to submit new rape kits to crime labs within five days of collection and for labs to process the kits within 30 days.

Before it was signed into law, the bill was watered down to encourage but not require that law enforcement meet the deadlines.

Still, the state Department of Justice’s forensic bureau, which serves as the crime lab for 46 of the state’s 58 counties, said the number of sexual assault kits sent to the lab increased from 1,500 in 2014 to 1,800 in 2015, which the agency attributed to Skinner’s bill.

Most of the kits processed at the forensic bureau — an estimated 70 percent — do not have enough DNA to put into CODIS. Of the ones that do, 30 to 40 percent are matched to a suspect.

‘Not locked up’

“A rape kit going untested means there could be a predator walking the streets who has not been arrested, not held accountable, not prosecuted and not locked up,” said state Attorney General Kamala Harris. “That’s scary not only for the victim to whom the crime already occurred, but any potential future victims.

“To the extent that a rape kit sits untested because of a lack of resources, then I say we can do better,” added Harris, who eliminated her department’s rape kit backlog in 2012, just a year after taking office, and instituted a program that vastly reduced the time it takes to analyze DNA.

Since 2014, Alameda County has sent 500 of the 1,900 kits found in storage to labs for testing. The rape kits were sorted, and the highest priority given to cases where the state’s 10-year statute of limitations on rape prosecutions had not expired.

Of the first 319 rape kits analyzed, DNA extracted from 124 kits matched 55 suspects, O’Malley said.

One of those cases involved the sexual assault of the two teens in Berkeley.

Their names are Jane Doe 1 and Jane Doe 2 in the criminal complaint. The rape kit was sent to a lab for testing in February 2014. It took four months for the lab to process the kit, forensic experts to verify its accuracy and for the DNA profile to be submitted to both state and national databases.

Once it was, there was a hit.

The DNA, authorities said, matched that of Keith Kenard Asberry Jr., a 31-year-old Antioch man who has spent half his life in and out of prison on weapons, drugs and robbery charges. At 16, he was convicted of second-degree robbery and, two years later, was sent to prison on his first felony after attempting to escape from a juvenile detention center in Santa Cruz.

In 2005, Asberry was convicted of being a felon in possession of a firearm, a sentence that required him to give a DNA sample that was uploaded into the national and state database of known and unknown suspects.

It was that sample that in June 2014 matched the DNA from the Berkeley case. A warrant was issued for Asberry’s arrest for kidnapping, robbery and sexual assault.

Police contacted the victims to tell them there had been a break in their case.

O’Malley said old cases like the one involving the teens present a new challenge for law enforcement: What to say to a victim who may not want to be reminded of a years-old assault or who may have assumed the evidence was tested long ago.

“They did their part, and nothing happened with their kit,” said O’Malley, speaking in general terms, not specifically about the teens. “For some, they never heard anything, so yeah, they were mad and they should be mad.”

Kit exam obstacles

Across the country, outrage over untested rape kits has spurred millions in state and federal funding and new laws aimed at preventing future backlogs. Victim rights groups worry that the backlog will lead to fewer women reporting sexual assaults.

“If survivors are hearing that, they are hearing they are going to go through all this and it’s not going to get tested,” said Sandra Henriquez, executive director of the California Coalition Against Sexual Assault. “That’s a deterrent.”

Statistics already peg the number of reported sexual assaults as low. In San Francisco, a woman is suing the Police Department over her untested rape kit.

But the backlog is not the only obstacle rape victims face, advocates say.

In rural California counties, victims ride one to two hours in the back of a police car to the nearest hospital for forensic exams because of a lack of trained health care providers and, in some cases, an unwillingness of hospitals to provide the service at a financial loss.

Advocates paint a heart-wrenching picture of what that long drive can entail: Victims are told not to change their clothing, including in some cases their semen-soaked underwear, and not to eat or to wash out their mouth, because it too could contain evidence.

Sara Shook, program director at Morongo Basin Sexual Assault Services in Southern California, said victims in the rural Mojave Desert tourist town of Joshua Tree have to be taken to Redlands, which is 90 minutes away, to get a rape kit.

“The number of reports have gone down because people don’t want to ride in a cop car down to Redlands,” Shook said. “I’d say 40 percent of people change their mind.”

In California, counties with more than 100,000 residents are required to have trained examiners on call or on duty at a designated hospital to perform exams to collect evidence for rape kits. Smaller counties often contract with larger ones, leaving pockets across the state, such as in the Central Valley, where victims have to be sent long distances to have the forensic exam.

After they leave the hospital, O’Malley said, some find out they’ve been charged for sexually transmitted disease testing and other components of their treatment, which the district attorney contends is illegal.

“We have a lot of examples of injustices to victims,” O’Malley said.

There are injustices, too, when rape kits go untested and suspects remain on the loose.

A new crime

Inside her kitchen, the 46-year-old woman could hear noises coming from the entryway of her north Berkeley home. It was just before 10 a.m. and she had returned from running errands. She stopped unloading groceries to follow the noise.

That’s when she found him, hidden in an alcove near the front of her home.

He forced his way into her house and grabbed her by the neck. He’s going to kill me, she thought, as he attempted to pull her to the floor. She fought back. She screamed. And the man took off running. The entire struggle, the woman estimated in a statement to police, took 45 seconds.

An officer who responded to her 911 call noticed blood on the woman’s shirt even though she had no injuries. They took her shirt as evidence.

That was Feb. 26, 2015.

The DNA was quickly sent to a lab. It returned a hit, authorities said, to Keith Kenard Asberry Jr. It was eight months after the arrest warrant had been issued for him in the assault of the two teens. Another four months would pass before he was captured.

In June 2015, Asberry was pulled over for a traffic stop and arrested on the warrants. He is currently being held at the Santa Rita Jail in Dublin on charges stemming from the 2008 and 2015 attacks.

The two victims who were assaulted as teens are now in their 20s.

“They will be testifying,” O’Malley said.

Asberry is representing himself in the case. His next court date is March 30, in Oakland.

“He’s facing multiple life terms with three victims,” O’Malley said.

Legislation pending

With their suspect behind bars, the district attorney, whose office is prosecuting Asberry, contends that law enforcement can do better. Rape kits should not languish.

In the case of the two teens, the rape kit could have identified Asberry years sooner, O’Malley said. And he might have been arrested long before there was a third victim, whom her office alleges Asberry intended to sexually assault.

Now, O’Malley has her eyes set on another way to help ensure that victims receive justice — through changes in the law.

The Legislature is considering several bills addressing rape kits this year. Assemblyman David Chiu, D-San Francisco, has legislation that would require rape kits to be tracked by law enforcement so that the state can determine how many go untested each year and why. State Sen. Steve Glazer, D-Orinda, has a bill to require that all law enforcement agencies use the state’s DNA database to increase the likelihood of finding matches in cold cases.

Other bills this year would eliminate the state’s statute of limitations on sex crimes, require that people convicted of crimes that were felonies before Proposition 47 reclassified certain offenses give DNA samples to police, and create a uniform rape kit to be used statewide.

Assemblyman Brian Maienschein, R-San Diego, introduced a bill that requires the state Department of Justice to upgrade its database for tracking rape kits so that victims can track their own kits.

O’Malley supports legislation that allows victims to see their rape kit status.

Because, O’Malley said, it all comes down to one thing: “Has your kit been tested?”

Chronicle staff writer Rachel Swan contributed to this report.