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Niskayuna chief: Cops learned from mistakes

Judge dismissed rape case because of delay in investigation

Friday, December 6, 2013
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— Niskayuna investigators are changing their procedures after a rape case was thrown out of court because police took too long to investigate it, Police Chief John Lubrant said.

Schenectady County Court Judge Karen Drago dismissed rape charges against Schenectady resident Andre Byrd on Nov. 20 on the grounds that police denied him due process by delaying the case for 22 months.

The case was complicated by the fact that the victim had been drinking heavily and could not remember the rape, Schenectady County District Attorney Robert Carney said. She told police she had been at a party and was attacked as she walked home. She said she woke up on the side of the road, fully dressed and uninjured, but missing $30. Her panties were wet, which convinced her to go to the hospital. She tested negative for date rape drugs, but semen was collected through a rape kit, officials said.

“She remembered a car pulling up, two guys getting out and throwing her to the ground,” Carney said. “She cannot say she was raped. She cannot say she had sex. She cannot remember.”

The DNA collected in the rape kit test identified Byrd, according to court documents. Police did not arrest him for almost 22 months, though they knew he lived in Schenectady and was a registered sex offender who had to report his address to police, according to court documents.

Drago said the police’s lack of action amounted to a denial of due process. Therefore, she threw out the charges, meaning the suspect cannot be retried.

But the department will learn from its mistakes, Lubrant said.

“We’ve addressed the points that were made in the ruling,” he said. “The ruling brings a level of awareness that needs to be applied.”

In the ruling that threw out the case, Drago said there was no justification for the 22-month delay.

“It does not appear that any significant investigative efforts were employed between May 1, 2011, when matching DNA was reported, and the date of defendant’s arrest” on March 7, 2013, Drago wrote in her decision. “There is no indication that any attempt was made to ascertain the address of this registered sex offender.”

As a Level 3 sex offender, Byrd must report his address to Schenectady police every three months. He is also on the online registry, which can be searched by anyone.

Lubrant said he could not offer specifics on how the department would change because the case was sealed when Drago threw out the charges. The circumstances of the case were “interwoven” with the changes, he said.

But he said he wanted to make sure future victims know their cases will be handled well by Niskayuna police.

“We want any victim to be confident in coming forward,” he said. “We don’t want any victim to be reluctant to report a sex crime. It resonates heavy with me.”

He said he hoped the police investigation of another rape case would reassure other victims that police would take their cases seriously. Last year, Abel Melendez was convicted of raping a Niskayuna jogger. He grabbed the stranger, dragged her away and raped her.

DNA evidence was a significant part of the evidence, but police tracked him through a phone call he made after stealing the victim’s cellphone. He was arrested seven months after the rape.

“I mention that on balance,” Lubrant said, explaining the 22-month delay in the other rape case was not typical for the department.

It was not an easy case, Carney said. Unlike many rape cases, the victim did not know her attacker, and the only evidence was the DNA sample. Proving it was rape — rather than consensual sex — would have been complicated even if police had arrested Byrd right away, Carney said.

That, according to Drago’s decision, is why police didn’t take action right away.

“It appears that the delay in the prosecution was in large part because law enforcement lacked confidence in the strength of the case because the complainant could not identify her alleged attacker or recall what occurred,” Drago wrote.

Byrd argued, through his attorneys, that the sex was consensual. The district attorney’s office argued the sex could not have been consensual because the victim was so drunk she was “physically helpless.”

Drago said the long delay between DNA identification and arrest made it far more difficult for Byrd to gather testimony in his defense.

“However, if the police had sought out the defendant when his DNA was identified on May 1, 2011, to question him, the defendant would have been on notice of the complainant’s allegations and would have been in a better position to contact potential witnesses for his defense,” Drago wrote.

The case was already old when police got their first break. Getting DNA identified is a slow process, and the results came back almost a year after the party.

Carney said his office advised police to interview partygoers after they got the DNA results, and officers did so. But they didn’t interview Byrd.

He said his office asked the Niskayuna police about the case “from time to time.”

“But nothing was done,” he said of the police. “Look, we’re not in charge of investigations. It’s really on them. We give them advice, and they followed some of it.”

According to court documents, they didn’t speak to the victim until more than six months after they received the DNA results. And it was more than 19 months before they asked the Schenectady Police Department to notify them when Byrd appeared to have his annual sex offender photograph taken.

Byrd didn’t come to his annual appointment — he showed up four months late, according to court documents. But when he finally arrived at the Schenectady police station, Niskayuna police were called. That’s when they charged him with rape.

Drago said Niskayuna police explained they hadn’t picked him up earlier because “both the Niskayuna Police Department and the District Attorney’s Office [were] busy with other cases.”

 
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comments

December 7, 2013
6:52 p.m.
tonijean613 says...

UNBELIEVABLE

December 7, 2013
7:19 p.m.
birmy says...

AGREE.

December 10, 2013
5 p.m.
cheeseburger says...

time for a new chief and d.a.

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