After nine years and nearly $350 million, USA TODAY confirmed just one exoneration resulting from a grant program to address untested rape kits.
Federal officials who pledged millions of dollars to test backlogged rape kits promised sexual predators would be brought to justice – and wrongfully convicted prisoners would be exonerated.
But nine years later, after the National Sexual Assault Kit Initiative has awarded nearly $350 million in grants to 90 state and local agencies, USA TODAY has been able to confirm just one exoneration as a result of the grant program. And thousands of kits that could free more innocent people have been left untested – again.
The National Institute of Justice recommends testing backlogged kits from all reported sexual assaults, including in closed cases. Entering DNA profiles from those kits into a national database could help clear wrongfully convicted people and identify rapists who have evaded justice. But following those standards is not required to get a grant, and recipients in at least 10 states didn’t do it, a USA TODAY investigation found.
The agencies didn’t test backlogged kits in cases with a previous confession, guilty plea or conviction, or if the suspect’s DNA already was in the national database. As a result, prisoners with cases tied to untested kits must overcome various legal hurdles before the evidence can be analyzed for DNA. The process typically takes years – if it happens at all. In the meantime, the true perpetrators may be left free to commit more crimes.
Officials at the U.S. Department of Justice, which oversees the Sexual Assault Kit Initiative, did not respond when asked for a list of exonerations attributed to the program. A page on the program’s website listing its performance metrics does not include an entry for the number of exonerations.
Federal data provided via a public records request was riddled with errors. The city of Cleveland reported 23 exonerations to the government, and Connecticut’s Department of Emergency Services and Public Protection reported two, according to the data. But officials in both places told a reporter those numbers were mistakes and should have been zero. No other grantees reported exonerations.
The newspaper found details about two overturned convictions in Wayne County, Michigan by searching media archives and websites, including the National Registry of Exonerations, a project of universities in Michigan and California. There, Prosecutor Kym Worthy has been at the forefront of bringing attention to the rape kit backlog. Only one of those exonerations was directly attributed to the federal grant program. The other, of Anthony Dyer, occurred as a result of Worthy’s previous efforts to ensure untested kits were analyzed.
Dyer served 10 years in prison – two of them for violating parole by failing to register as a sex offender – after he took a deal and pleaded guilty to a 1991 rape he didn’t commit.
Dyer had already been released by 2009, when the untested rape kit tied to his case was found in a Detroit police warehouse, along with roughly 11,000 others. The DNA profile developed during testing didn’t match his. It was entered into the national DNA database, where it matched a different man, Shon Luther Matthews. In 2016 – 25 years after the crime – Matthews pleaded guilty to the sexual assault.
All the while, Dyer was living with the stigma of being labeled a sex offender, which makes it difficult to find housing and get a job.
“That right there stops a lot of things in opening doors for your life,” he told USA TODAY.
Dyer was finally removed from the sex offender registry in 2017. If Wayne County had not tested kits in closed cases, he never would have been cleared – and Matthews may never have been caught.
It’s difficult to tell how many other people like Dyer could be out there, because the federal government does not track the number of rape kits left untested in closed cases. USA TODAY found reliable data for just seven state and local agencies that received grants from the Sexual Assault Kit Initiative. At those sites alone, the newspaper confirmed more than 2,000 such kits.
Estimates of the rate of wrongful convictions in the United States vary widely. A 2021 article in the New Criminal Law Review evaluated numerous studies and determined the rate is likely between 3% and 6%.
That means testing just the kits identified by the newspaper could identify dozens of people convicted of crimes they didn’t commit.
In Hawaii, at least 272 kits weren’t tested because the suspects’ DNA profiles were already in the national database.
In Wisconsin, 710 kits were excluded from testing because there had been convictions.
And in North Carolina, 832 kits – about 5% of the state’s overall backlog – remained shelved because there had been plea deals or guilty verdicts.
Justice Department officials said testing all kits is not required because the causes and effects of the backlog vary by jurisdiction. Grant administrators and a nonprofit contractor help recipients “develop an approach that best serves their communities, addresses underlying causes of unsubmitted kits, and aids in the implementation of best practices going forward,” the department’s Bureau of Justice Assistance said in a statement.
But the benefit of testing kits doesn’t vary by community – it’s universal, said attorney Christine Mumma, executive director of the North Carolina Center on Actual Innocence.
“This work is about the truth,” she said. “It’s about the true perpetrator as much as it’s about the innocent person. It’s about getting the victims justice and making sure the right person is in prison.”
Why test all rape kits?
Every time the wrong person is locked up, the real criminal goes unpunished.
New York officials learned that lesson decades ago.
In 1991, a man named Michael Mercer was identified by a 17-year-old girl as her attacker. Mercer’s first trial ended in a hung jury. He was tried again, convicted and sentenced to 20½ to 41 years in prison, according to the National Registry of Exonerations. In 1996, a judge denied his request to have the rape kit evidence re-analyzed with new technology.
In 2000, New York City began testing old rape kits with updated methods and comparing the results with profiles in the state DNA database. Three years later, the evidence in Mercer’s case matched Arthur Brown, who by then was serving two life terms after being implicated in five other rapes.
The prosecutor at the time, Robert Morgenthau, requested that Mercer’s case be vacated, and Mercer was freed from prison after 12 years. Brown could not be charged with raping the 17-year-old because the statute of limitations had expired.
In 2010, Cyrus Vance Jr. took over as Manhattan district attorney. He later used asset-forfeiture money to fund $38 million in grants to 32 law enforcement agencies in 20 states to help them clear their rape kit backlogs. Those grants required recipients to test all categories of kits – except those in which there was evidence no crime had been committed or the victim didn’t file a police report – as New York City had.
In a November interview, Vance said the requirement was necessary to avoid the type of arbitrary decision-making that led to the backlog in the first place.
“You’re just testing it, and if you see a result that needs action, you do it,” he said. “But if you decide not even to test kits in your backlog that were previously adjudicated, you’re not giving yourself that opportunity to consider it, right?”
Still, without the requirement to test kits in closed cases, even he might not do it if he felt the rest of the evidence was ironclad, he said.
The year Vance took office, a congressional subcommittee convened a hearing called “Rape kit backlogs: Failing the test of providing justice to sexual assault survivors.” Experts who testified had no idea how many untested kits had piled up nationwide over decades in evidence rooms, warehouses and labs. One study later estimated the number at between 300,000 and 400,000.
‘Victims deserve to know’: Untested rape kits in Wichita
In Wichita, Kansas, officials set out to clear a backlog of untested rape kits and give victims answers. Years later, many are still waiting. This video was updated to add new information.
During the hearing, U.S. Rep. Jerrold Nadler of New York talked about the promise of DNA testing.
“Such evidence makes it much more likely these individuals will be captured and punished,” he said of offenders. “It also allows us definitively to exonerate the often falsely accused innocent.”
In 2015, then-Vice President Joe Biden echoed the sentiment at a news conference announcing the federal Sexual Assault Kit Initiative, saying: “DNA technology is a guilty person’s worst enemy and the innocent person’s greatest friend.”
But federal grant recipients weren’t required to test kits that could free people like Mercer.
Plea bargains can lead to wrongful convictions
Excluding kits in cases with confessions or guilty pleas fails to account for the fact that innocent people sometimes confess to crimes they didn’t commit or agree to plea deals, said Samuel Gross, co-founder of the National Registry of Exonerations.
Most criminal cases in the United States are resolved with plea bargains, and defense attorneys may advise clients who say they’re innocent to take deals in exchange for lighter sentences, he said.
“Their lawyers might say, ‘You’re a Black man charged with raping a young white woman, so you should take a plea,’” Gross said in an interview.
Both Dyer and the only man whose exoneration was directly attributed to the Sexual Assault Kit Initiative, Terance Calhoun, had accepted plea bargains.
Calhoun pleaded no contest to several felony charges in connection with the sexual assaults of two teenage girls after signing a false confession in 2006, according to his federal civil suit against Detroit police, which was pending as of November.
In one assault, there was no rape kit, but the victim described her attacker as having a tattoo of a puzzle piece on his arm. Calhoun, who was 19 and cognitively disabled, didn’t have one.
In the other attack, the rape kit was tested about three months after Calhoun was sentenced to more than 30 years in prison. It didn’t match him, but neither Calhoun nor his lawyer ever saw the report. It ended up buried in case files while Calhoun sat in prison for 15 years.
The report was located in 2019, as Wayne County – which has received nearly $9.5 million in grants from the Sexual Assault Kit Initiative – worked to clear its rape kit backlog. Additional testing again excluded Calhoun, but he was not released until three years later, when the DNA profile was entered into the federal database and matched a serial rapist: Lionel Wells.
While Calhoun was in prison, Wells raped at least four more teenage girls.
A second serial rapist, Ralph Douglass Tucker, was later linked by his puzzle-piece tattoo to the other rape for which Calhoun had been convicted. Tucker’s DNA matched evidence in five different rapes.
Worthy, the Wayne County prosecutor, said attorneys in her position have a responsibility not only to seek justice for sexual assault survivors but also to protect defendants’ rights.
“If you have an opportunity that you can exonerate somebody, if you come across any evidence where you can do that, even if you have to go searching for it, … then that’s what we must do,” she said.
Summer Stephan, president of the National District Attorneys Association, added that a law or strong written policy requiring all kits to be analyzed ensures testing decisions won’t be influenced by bias or incomplete information.
“Prosecutors are always in search of the truth and justice,” said Stephan, who serves as San Diego’s district attorney. “And the power of DNA includes its power to exonerate. … It’s worth it to not have one innocent person in custody – or convicted of a crime – who didn’t do it.”
A rape kit test brings freedom after 28 years
All 50 states have passed laws governing post-conviction DNA testing, but the rules for which cases are eligible are complex and vary widely.
In California, Florida and Montana, the law allows such testing only if the identification of the perpetrator is at issue. If someone has confessed or pleaded guilty, prosecutors often argue it wasn’t, said Michael Semanchik, executive director at The Innocence Center, a California nonprofit law firm focused on freeing the wrongfully convicted.
“There’s this kind of approach to our legal system that values finality over truth,” he said. “I also think it’s part ego – the police officer who did the investigation couldn’t possibly be wrong, and the prosecutor who prosecuted it couldn’t possibly be wrong. … They start to live in this alternate universe where there are alternative facts.”
California has not mandated the testing of previously untested rape kits, according to the Joyful Heart Foundation, a leading advocacy organization focused on rape kit reform. More than 12,000 untested kits had been found in Los Angeles County as of 2009, according to Human Rights Watch.
One of them was tied to the case against Gerardo Cabanillas, who was arrested because he was wearing red pants.
That’s the clothing a California woman described when she reported a robbery and attempted carjacking to police in January 1995. Investigators believed the same man had committed another carjacking, robbery and rape a few days earlier.
Cabanillas, then 18, newly married and the father of an 8-month-old daughter, rarely went out. But he had wanted to spend one last Friday night with his friends before enlisting in the Army the following Monday, he said in an interview.
“I remember it clearly, the officer saying, ‘You shouldn’t have worn those pants today,’” Cabanillas told USA TODAY.
A rape kit was collected from one of the victims, but it was not tested for DNA.
Cabanillas, who was born in Mexico, said police never offered him an interpreter, even though he wasn’t fluent in English and didn’t know what the word “carjack” meant.
At first, he swore on his daughter’s life he was innocent, Cabanillas said. After nine hours, a detective told him, “Look, you’re a kid. You don’t have a record. It’s two little robberies. If you just say you did it, you can go home on probation.”
Scared, frustrated and wanting to get out of there, Cabanillas confessed.
“By that point, I thought by me just saying it, I thought it would help out, or he would let me go,” Cabanillas recalled.
When Cabanillas figured out the allegations also included a brutal sexual assault, he tried to take it back, he said. But by then, it was too late. Cabanillas refused a plea deal. He was found guilty of multiple felonies, including carjacking, robbery, sexual assault and kidnapping, and sentenced to more than 72 years in prison.
Semanchik and attorney Alissa Bjerkhoel, now a judge, took on Cabanillas’ case after receiving a letter from him in 2017.
Testing of the rape kit was approved in 2019. It yielded two male DNA profiles, neither of which matched Cabanillas. One came back to Juan Angulo, an early suspect who had been convicted in 1996 of similar attacks – one of which included a murder – and was serving life in prison. The second didn’t match anyone in the national database.
Cabanillas’ conviction was thrown out. He was freed in 2023 – four years after testing was approved and 28 years after he was first arrested. While he was incarcerated, his father and two brothers died. Cabanillas is trying to build a relationship with his older daughter, whom he hadn’t seen since she was a toddler. He has also remarried and is raising another daughter.
“I ask myself every day: What would my life have been like if this hadn’t happened?” he said. “It’s hard. I’m in therapy and that’s helping out a lot, but it’s just a big change. It’s tough.”
A 2020 report by the California attorney general listed about 800 untested rape kits remaining in Los Angeles County and more than 11,500 backlogged kits statewide. The county has received state grants to address its backlog, but not a federal grant from the Sexual Assault Kit Initiative. The city of South Gate, where the crimes Cabanillas was wrongfully convicted of occurred, also has not received a federal grant under the initiative.
Semanchik would like to see fewer exceptions to post-conviction testing, both in his state and around the country.
“A confession doesn’t automatically mean the person did it,” he said. “If there’s a chance for DNA testing and the results might mean something, it should be done.”
Contributing: Jayme Fraser, Nick Penzenstadler, Tricia L. Nadolny and Savannah Kuchar, USA TODAY
Gina Barton is an investigative reporter at USA TODAY. She can be reached at (262) 757-8640 or gbarton@gannett.com. Follow her on X @writerbarton and Bluesky @writerbarton.bsky.social.
