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What you need to know for 01/18/2018

Niskayuna police guilty of negligence in rape case

Niskayuna police guilty of negligence in rape case

No good reason for taking so long to question the accused

The Niskayuna Police Department is the gang that couldn’t investigate. As a result, Schenectady County has the rape case that wasn’t, and an alleged rapist walking around instead of being locked up. It was an outrageous screw-up, which cannot be explained or excused.

The case was thrown out by Judge Karen Drago, not just because the Niskayuna police took so long to investigate and arrest the accused, but why it took so long. The reason was that the cops did virtually no investigating, even after the alleged rapist’s DNA was found on the victim’s body and clothing. By the time he was arrested in March of this year, 22 months had gone by since the DNA match.

Drago found that this needlessly long delay denied the accused his due process rights by making it difficult for him to find witnesses to support his claim that the sex was consensual. That may be a technicality, but in the law, especially when someone’s liberty is at stake, process matters. An accused shouldn’t be prevented from defending himself by police or prosecutor incompetence.

This case was tough for the police because the victim, who said she was drunk at the time, couldn’t identify her attacker — indeed, she didn’t even know she’d been raped until a rape test was conducted at the hospital. But if she was that drunk, then the sex couldn’t have been consensual, regardless of where it occurred (the victim says she was grabbed from behind while walking on the street after a party) and whether or not she knew her attacker.

Without any real help from the victim, you’d think the investigators would be anxious to talk to the suspect — the one for whom they had a DNA match. And you’d be wrong. Although they knew his name, and that he was a registered sex offender (Level 3, the most dangerous kind), they chose to wait until last December (19 months after the DNA match), when he was scheduled to appear at the Schenectady Police Department to have his annual sex offender photograph taken. And when he didn’t show up then, they waited until he finally did show up, in March of this year, at which time they questioned and arrested him.

Why did it take the police so long? Drago said their explanation was that they and the district attorney’s office were busy with other cases. But District Attorney Robert Carney says his office didn’t tell the Niskayuna police it couldn’t handle this case. In fact, he says his office consulted and advised them early and would ask about its status from time to time. Perhaps the prosecutors should have been more involved.

At any rate, law enforcement at all levels should be expected to make time for a case like this — an alleged rape involving a convicted sex offender, where the victim says she was attacked while walking on the street. Talk to everyone you can, certainly the accused. If you think it didn’t happen or you can’t prove it, drop it. If you have a case, even a less-than-perfect one, move it forward through the process. Rape cases are often messy, but if societal attitudes are to change about this predatory crime (the way attitudes have changed with drunken driving), they must be vigorously prosecuted.

The Niskayuna police chief says this botch job was an aberration, citing another recent, successful rape prosecution. That’s cold comfort. He also says they’ll be changing certain procedures to make sure this doesn’t happen again, but won’t say what those procedures are.

While the Niskayuna police were negligent in waiting 22 months to talk to the accused after the DNA match, it’s not clear that Judge Drago was right in her interpretation of the law or previous court decisions. The statute of limitations is unlimited for first-degree rape in New York state, but she short-circuited it because the investigation took so long. And the right to a speedy trial means within one year of arrest, although that is not hard and fast. This case was dismissed by Drago eight months after the arrest.

There may have been no good cause for the cops’ delay in questioning the accused, as Drago ruled, but there was also no sign of bad faith on their part. Despite the judge’s speculation that the defendant’s ability to produce witnesses would be greatly impaired by this delay, she offered no proof that this actually happened.

An appeal by the district attorney may be in order — not to let the Niskayuna police off the hook, but in the interest of justice.

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