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DNA ruling jeopardizes Maryland rape convictions

Baltimore woman forced to relive years-old crime

By Yvonne Wenger, The Baltimore Sun

5:54 PM EDT, June 9, 2012

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When she came home from working a shift at Subway and found Detective Caprice Smith's business card stuck in the front door with the words "Please call" scribbled on the back, the 10 life-changing minutes she had spent in the back seat of a Cherry Hill cab came flooding back.

For five years, the woman had waited for police to find the man who had raped her in the South Baltimore neighborhood when she was just 13. At some point, she had stopped believing it would ever happen.

"I thought there was nobody looking for him," she would later recall, crying. "I wasn't expecting them to come to my house. I can't even describe how I felt. It was something that I didn't want to bring back up again. I was just getting over it; I thought I was, but it took me [back] all over again."

The detective's investigation — based heavily on DNA evidence — eventually led to Gregory Leslie Brown's 2010 conviction on rape charges and a 60-year sentence, which he is serving at North Branch Correctional Institution in Western Maryland. His victim anticipated that he'd spend the rest of his life there.

But a decision this year by Maryland's highest court could change that. Ruling in an Eastern Shore case, the Court of Appeals held that a common police practice — collecting DNA when a suspect is arrested and matching it to samples taken in unsolved cases — was an unconstitutional search.

The decision raises the possibility that Brown could go free.

Law enforcement officials are fighting back, defending the DNA sampling program, and noting that it has led to 34 convictions, including two separate rape cases involving Brown. Attorney General Douglas F. Gansler has pledged to seek an appeal to the U.S. Supreme Court.

"Criminals are caught and convicted on fingerprint evidence every day. DNA evidence is the 21st century version of fingerprints," Gansler said in a statement.

Some constitutional law experts and civil liberties advocates say taking the samples violates the freedom guaranteed to Americans against unreasonable searches a theme endorsed in the Court of Appeals ruling. Across the nation, courts are split on the matter.

To Brown's victim, the legal issues spelled out in law books and argued in hushed courtrooms miss the point. Collecting a cotton swab of her rapist's DNA linked Brown to the crime, and no legal wrangling should undo that, says the woman, now 21. (The Baltimore Sun does not name the victims of sexual abuse.)

Having to confront the situation once again chills her: "It opened up a door that you put all kinds of locks on."

Reliving her rape

After the rape in June 2004, the rising eighth-grader at West Baltimore Middle School was ushered by police to Mercy Medical Center, where nurses kept her until 4 a.m. They inspected her body, interviewed her, collected DNA from the attack, treated her for possible sexually transmitted diseases and administered the "Plan B" pill to prevent pregnancy.

Her mother recounted during Brown's trial what she saw upon arriving at the hospital. She began to speak and then stopped, a courtroom video shows.

"I need a minute," the victim's mother said. She cried, cleared her throat, took her glasses off to wipe her eyes, and continued. "She was just sitting there on the bed with the blanket wrapped around her shoulders.

"I remember just lifting her head up to look at me. She just really didn't want to look at me. … I tried to comfort her as best as I could. She seemed so lost. She looked like something was taken from her. Her soul was gone. She wasn't my little girl that I seen earlier that day."

On June 28, 2004, the victim had been grounded by her mother for misbehaving and was supposed to have stayed in her room. When her mother left to work the late shift at Blockbuster, though, the teen took off to visit friends in Cherry Hill.

She had been waiting at the Cherry Hill light rail stop around 10 p.m. when Brown, then 37, walked up from an alley behind her. He asked if she needed a ride. The teen thought he was a man from a neighborhood convenience store who always flirted with her aunt when they shopped.

So, when he got in the front passenger seat of a cab, she got in the back.

"I thought, 'OK. I know this guy. He is going to take me home. Couldn't nothing possibly happen to me in a sedan.' But I was wrong," the young woman recalled in a recent interview.

She remembers exactly when she knew something was wrong: Brown climbed over the front seat and into the back of the cab.

He started kissing her neck. She said no. He told her to take off her underwear. She said no. The rest of the sexual assault continued in the same way, the victim said in the interview.

"I didn't want to lose my life that night. I was just crying. I kept saying, 'No.'"

Today, the Sandtown-Winchester woman, dressed in a flowing white tunic cinched at her waist with a black belt, trendy black knee-high boots and her hair pinned back in a wispy ponytail, is tiny. She weighs about 110 pounds and stands 5-feet-4-inches tall.

At the time of the rape, she said, she was less than 100 and barely taller than 5 feet, and she knew she couldn't overpower the 6-foot-tall Brown, who weighed in at 175 pounds.

Court documents described the scene: The cab driver, a man who was never identified, had glanced back continuously throughout the ordeal.

After Brown had raped her, he looked up at the cab driver, and asked him a question, and asked "if he wanted some."

The driver said no.

By that time, the cab was stopped in the back of a parking lot at 2159 Patapsco Ave.

Brown shoved her out of the sedan in front of some large trash bins and told her to face them or he would shoot her.

After the cab pulled away, she wandered into a nearby pizza shop in Baltimore's Lakeland neighborhood, her faced stained with tears, and asked the people behind the counter to call 911 to tell police she had been raped. When they stared at her and did nothing, she walked to a pay phone in front of a 7-Eleven and dialed the police.

Delsie Parker, the detective who investigated the crime, testified that it was Brown's final action, pushing the girl out of the car in front of the trash bins, that caused that rape — out of the 300 or 400 she investigated over a decade — to haunt her.

"I was upset. I remember thinking, 'Wow. Not only was she raped, but the suspect kicked her out like trash,'" Parker testified at Brown's trial.

Parker said she chased the case cold. She investigated sedan companies in Cherry Hill, searched for cabs that matched the victim's description and tried to find the man the victim had originally mistaken the suspect for, the one who flirted with her aunt at the convenience store.

When Parker was reassigned to a new unit, she stopped communicating with the victim and her family.

"Before you left were there any new leads to follow in the case?" the prosecutor asked Parker at trial.

"No there was not. We were waiting … [for] a possible DNA hit."

DNA evidence leads to convictions

While Brown's victim waited to hear from police, Gov. Martin O'Malley, in one of his first big legislative victories, shepherded an expanded DNA law through the 2008 General Assembly session. The law, one of the most contentious issues of the session, became effective on Jan. 1, 2009.

It authorized DNA samples to be collected after an arrest for a violent crime, a burglary or the attempt to commit a violent crime or a burglary. Previously, law enforcement was only able to collect DNA after a conviction.

By that time, the victim had long thought she had heard the last from police.

"I will never forget, but I tried to move on with my life," she said recently. "It all came back up when the detectives came and knocked on my door."

Maryland's new DNA sampling law had been in effect less than two months when Brown was arrested on six charges related to his alleged sexual abuse of 7- and 8-year-old relatives in his Lansdowne apartment, according to court records.

On Feb. 25, 2009, an officer in Baltimore County swiped a cotton swab on the inside of Brown's cheek. That sample was sent to a lab to be tested and the results were entered into a statewide cold case database.

The sample matched two unsolved cases: the 2004 rape in Cherry Hill and a similar case involving a 14-year-old girl on Aug. 11, 2000, near Lake Montebello in Baltimore. The teen was attacked after she accepted a ride in a station wagon while waiting for a bus at 33rd Street and The Alameda, according to police records.

Brown has steadfastly maintained his innocence in each of the cases.

Detective Smith, then a 15-year veteran of the Baltimore Police Department, had been assigned to the 2004 case. She drove to the victim's house, slipped her business card in the victim's front door and waited for a call.

On June 9, 2009, Detective Smith and her partner arrived at the young woman's house with a printout of six photos, one of which pictured Brown. Smith had used a computer program to create the photo lineup, selecting photos of Brown and five other men with complexions, features and hairstyles similar to his.

The victim slid into the back seat of the police cruiser and Smith handed her the printout, face down.

"She flipped it over and she became visibly upset," Smith said at Brown's trial. "She cried and she identified Mr. Brown as the person who assaulted her."

The victim circled the photo of Brown, signed her name next to it and on the back she wrote, "He is the guy who raped me."

Legal implications

Brown was already serving a year in prison on a fourth-degree sex offense — for the incidents involving his young relatives — when he was found guilty in October 2010 of first-degree rape in the Cherry Hill case. He was sentenced to 60 years in prison for that rape, and later agreed to serve 20 years, concurrently, in the 2000 rape.

But his fate may rest on a challenge to Maryland's DNA sampling law in a similar case

In that case, Alonzo Jay King Jr. was arrested in 2009 on assault charges, and police collected a DNA sample from him. It linked him to the 2003 rape of a 53-year-old woman in her Salisbury home. The Court of Appeals ruling reversed King's rape conviction and sent the case back to the lower court for retrial.

After that ruling, Maryland authorities stopped collecting post-arrest DNA samples, pending the outcome of the state's expected appeal to the Supreme Court.

About half of the states and the federal government allow police to take DNA samples when a suspect is arrested. But when those laws have been subject to legal challenges, federal appeals courts, and lower courts across the country have ruled both for and against the practice.

If the Supreme Court tackles the issue — by no means a certainty — its decision will affect the role genetic technology can play in solving crimes.

Catching a criminal does not give police the right to violate constitutional freedoms, contend the law's opponents, including Stephen B. Mercer, chief attorney for the forensics division in the Maryland Office of the Public Defender. A person's DNA contains information not available in a fingerprint, including determining one's relatives, race and future health problems, he said.

"If catching criminals is all that this debate is about then warrantless entries into homes should be OK, redlining neighborhoods and warrantless pat-downs of people is OK," Mercer said. "Listening in on phone calls, reading mail, searching through financial records and scrutinizing medical records, all of that should be OK.

"If all our concern is to catch criminals, then police should have free access to all of that."

On the other side of the argument are those who believe a DNA sample is no different than a fingerprint taken when a suspect is brought into custody. Supporters, such as Scott D. Shellenberger, state's attorney for Baltimore County, see the practice as an opportunity to put repeat violent offenders behind bars.

The public should not be concerned with potential abuse of genetic information by law enforcement officials, Shellenberger said. The portion of a person's DNA that contains sensitive information, such as a predisposition toward a certain disease, is not analyzed by law enforcement, he said.

"What use do I have of knowing whether Gregory Brown is going to get prostate cancer in 30 years or not? Why would that be helpful to me in any way? As a law enforcement agency, the thing I only care about is identification," said Shellenberger, who oversaw the prosecution of Brown's sexual assault case involving the young relatives.

Brown has appealed his conviction for the rape in Cherry Hill, and his attorney has asked the state's Court of Special Appeals to suppress the DNA evidence that was the cornerstone of his conviction.

That case is pending.

At his sentencing for the Cherry Hill rape, Brown sat, arms crossed and feet firmly planted, as his lawyer finished his remarks to Judge David W. Young, a courtroom video shows. Then, for the first time in the case, he spoke on his own behalf. Brown said the case was built on lies, from the detective to the prosecution.

"These allegations that are against me are truly and honestly false." Brown said.

"I have thirty-two nieces or nephews I never touched. I am not a child molester. I am not a rapist. ...

"I [ask] you consider my life and my family, too, because [the victim] ain't the only one hurting. My family is hurting too. I am standing before you as an innocent man."

Brown said he was targeted in the case because of his past record. His 32-page rap sheet goes back to the early 1980s and lists five earlier convictions, including drug offenses, breaking and entering and driving on a suspended license.

According to charging documents from the rape near Lake Montebello, Brown pulled up to the teenage victim and asked if she needed a ride. She said no at first, but eventually got in. He told her he needed to stop to fill up his tank and pulled into the 700 block of Tyson Street, a somewhat secluded alleyway.

Brown showed the girl a silver razor blade with an orange handle and ordered her into the back of the station wagon, where he raped her.

In a plea deal, Brown agreed to forgo a jury trial for a 20-year sentence, which would run concurrently with his life terms in the previous rape conviction.

As in the other sexual offenses, Brown continued to insist he was innocent.

In a letter received by The Baltimore Sun last week, Brown reiterated his position.

"The state played a dirty game," Brown wrote.

"They violated me and my constitutional rights. … Thank God for the Court of Appeals. They finaly are trying to stop police misconduct that's been going on for years. ...

"Being found guilty does not mean I'm guilty."

Life after her rape

Brown's victim in the Cherry Hill rape says she's made decisions in her life that she regrets. But she refuses to allow her rape to be seen as the reason for her problems.

She said she went from a mouthy teen who sometimes broke curfew at the time of the rape to one who used marijuana heavily, drank alcohol underage and smoked cigarettes. She started having sex with boys, and then with men — for money.

Despite her admissions, the victim has no arrest record in federal court or Maryland state courts.

"I just wanted to hide," she said recently, recalling the aftermath of the rape. "I wanted to do what I wanted to do. I thought I was grown up. I really thought that no man could tell me nothing."

Her mother went as far as to move her to a town on the border of Virginia and North Carolina about two years after the rape. She was expelled from high school for fighting, mostly with boys, but she credits the two years she spent in the South with helping to change her life for the better, and is grateful to her mother.

"She thought it was a better environment," the victim said. "She thought I would get myself together, and I did."

By the time she moved back to Baltimore, the woman said, she started to get a handle on a better future. Until recently, she said, she worked two jobs, one at a fast food restaurant and the second at a convenience store. The store closed down, and the victim said she juggles her schedule at the restaurant with classes to get her GED. She's thinking about signing up for the Army.

On a recent day, as the woman left a recruiter's office at Mondawmin Mall and headed for the Metro, she stopped to think for a moment about how her life was affected by the rape.

"It put a hole in my life; that's all I am going to say," the victim said. "If all of that wouldn't have happened, I would have finished school by now. I would have been doing way more than what I do now. I work [in a fast food restaurant]. I am 21. I am not happy with that.

"I saw a couple of older ladies working in fast food. I don't see how they can do it. I am not going to be 50, 40, anything, flipping nobody's burgers."

ywenger@baltsun.com

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