She Says: Whiplash

Jun 21, 2018

In episode 4, we dive into what happened with the mysterious DNA sample that matches the one found in Linda’s sexual assault kit, and why detectives didn’t know about it for months. Linda expresses her concern that her questioning of police will lead to her case being ignored.

READ THE TRANSCRIPT:

EPISODE 4: WHIPLASH

Editor’s note: This podcast includes adult language and themes. It also contains descriptions about sexual violence. Please be advised.

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(introduction)

SARAH DELIA: You might feel like you have a bit of whiplash after that last episode. That abrupt backward or forward motion you experience when you’re driving down the road minding your own business when a car comes out of nowhere and slams you. Your body involuntarily jerks in an uncomfortable way. And if you’ve ever been in a crash before, you know there’s a certain level of surprise. A minute ago you were going down the road listening to the radio, maybe singing your favorite song. Now, you’re trying to make sense as to why your car is spinning out and headed in a direction that just doesn’t make any sense.

I know that’s how Linda feels.

And it’s because of those three words we ended on last time — and I hope they’re still echoing in your head: It. Is. Him. If they’re not — quick reminder why they should be.

There’s a mysterious DNA hit on Linda’s sexual assault kit. Meaning, someone’s DNA in CODIS matches the DNA profile found in Linda’s kit, but the lab can’t reveal the name of the person. There’s a problem. To Linda, it’s obvious who this person is. It’s July 2017, and she’s been telling the detective who she believes it is for nearly two years.

LINDA: And I said, ‘I know it’s him.’ I mean, there’s just no question there. Period. End of story.

DELIA: But it’s not even close to the end of Linda’s story. It’s just the beginning of a new chapter. Not even a month after telling Linda there’s no way it could be the man she identified, the detective changes course and starts to pursue him with no explanation.

Linda wants answers. She needs answers. So she asks for a follow-up conversation in November 2017 to better understand why the sudden change in direction, but she says she’s just more confused after speaking with the officer working her case. She’s still recording her conversations with the detectives. Her phone is in her purse, so it’s not always the best audio quality. Here’s Detective Christina Cougill:

DETECTIVE COUGILL: I can’t assume that it’s him. I’m putting two and three and four together, and I’m like, well it has to be him. Because I knew his DNA was already in the system.

DELIA: I can’t assume it’s him, Detective Cougill says. I’m putting two and three and four together, and it has to be him. And the “him” Cougill is referencing is the man Linda identified in her internet search in 2015. The system Cougill mentions is CODIS, which we’ll look at more closely this episode.

All of what Cougill just said is in direct contrast to what she told Linda about five months earlier in June 2017.

Charlotte-Mecklenburg Police Department headquarters.
Credit Logan Cyrus

It turns out CMPD didn’t know when they told Linda during that emotional in-person meeting in no uncertain terms it wasn’t the person she identified — that the department already had a really important piece of information from the state lab. But Cougill wasn’t aware of it.

This episode we’re going to look at the information we’ve been able to confirm that was at CMPD’s fingertips. They’ve had Linda’s internet search, and at some point, police get confirmation that there’s been a DNA hit from her sexual assault kit.

Our first stop is a closer look at that internet search with an extra set of eyes. From WFAE in Charlotte, I’m Sarah Delia. This is She Says.

(end of introduction)

DELIA: Linda’s internet search, in which she identified the man she believes to be her attacker, has been a point of contention with CMPD from the start.

Remember in October 2015, almost four months after her assault, she shared her search history with the detective, which lays out how she identified him. And she later shared that with us.

And Linda doesn’t believe the police are taking this internet search seriously. A few words Detective Cynthia Banner said during the last in-person update Linda got at CMPD haunt her. It’s when she described Linda’s internet search as quote “very TV.” So in November 2017, [Linda] asks for an in-person update with Detective Cougill. Linda wants some reassurance that Cougill sees the value in the internet search. Cougill responds.

DETECTIVE CHRISTINA COUGILL: Well I mean, that's the kind of stuff you're going to have to answer to because I did the search, and I couldn't find him.

LINDA: Did you see the timestamps on that, how long I did it? And how long I … and I tried this, I tried that. I tried this this, this, this, and then, blam, I click on the images. There's no text on there to identify him. I see his face. That's him.

DELIA: Cougill says she did the search and couldn’t find him. So my colleague Alex Olgin had an idea: Why don’t we give the internet search a try?

ALEX OLGIN: And we have Linda’s internet search, so we’ll follow her lead.

DELIA: OK, so Alex and I are currently sitting in a conference room at WFAE, and Linda sent us over the screenshots of her search history that she had sent to CMPD in 2015. So we have all these pages spread out on the table and we are going to follow exactly what she did, step by step.

OK, so at 6:56 p.m. Linda starts to search “sexual assault survivor,” “PTSD and relationships,” “survivors of sexual abuse,” “PTSD,” “sexual assault” and “how sexual assault affects your relationship and sex life,” “love after rape.” Those kind of things...

OLGIN: We continue following Linda’s lead and try typing in the exact same search terms that she did. At 11:27 p.m., the evening of Sept. 26, 2015, she starts plugging in the search terms “Charlotte, N.C., rape.” And then the name that was on the shirt of the man who assaulted her. She presumes it’s his last name.

DELIA: Right now, granted this is like almost three years later, but I don't see a lot.

OLGIN: Then, just like she did, we type in the last naFme. Not much. Then we try several combinations of the name of the company that Linda remembers being on the shirt of the man who assaulted her, and the last name that she says was also on the shirt.

And she’s on this path for about an hour before switching gears. Then she tries the name, “sexual assault.” We did that, too. Didn’t find anything. Then a few minutes later…

DELIA: So at 12:45 a.m., she searches the last name, “Charlotte, arrest,” and she switched over to the images tab. And looking at that, I can see a bunch of thumbnail images. So they are really small. I can see a bunch of mugshots. And I very immediately see the image of the man that Linda will later identify to police as her assailant.

Credit Greg Harris

OLGIN: In fact, one of the first images that appears during our search is another mugshot of him.

DELIA: We just followed what Linda did. And so, when Detective Cougill says that she tried to do the search and she couldn't find him, I’m not sure what that means because we followed what Linda sent to the police, and following that path we can very easily find the image of the man Linda identified. Then just like she did, we clicked on that image and the same name appears.

OLGIN: Linda feels that the detectives have an issue with her search. Yet, Cougill seems to rely on it once there’s a mystery hit in July 2017 on the DNA profile from her sexual assault kit.

DELIA: Alex has reported a lot for She Says, and especially for this episode, so she’s going to stick around.

OLGIN: We wanted to talk to Detective Cougill about Linda’s Google search. But CMPD wouldn’t allow her to talk to us for this series. Instead, we talked to Cougill’s superior and the head of the sexual assault unit at the time, Lieutenant Melanie Peacock. She’s since been promoted to captain and reassigned to another division.

DELIA: So we asked her: Just how important was Linda’s internet search?

CMPD Captain Melanie Peacock.
Credit Alex Olgin / WFAE

CAPTAIN MELANIE PEACOCK: Her providing that information was critical, but unfortunately it does not give us probable cause to charge him just based on that because this was not a situation where she had known this person for a length of time. You know, it's different if it's a spouse or a boyfriend or somebody you have known and established relationship with for you to say, ‘This is the guy.’ That, that may be enough, but in a situation like this where the suspect was really not known to her, we have to have some other kind of evidence to corroborate that statement.

DELIA: She says Cougill needs DNA to do that. And that takes us to CODIS. Alex is going to help me break down this complicated system.

OLGIN: First, you have to know what CODIS stands for — it’s the Combined DNA Index System.

It’s a system of databases that all states have access to. DNA profiles of some arrestees and all convicted felons are put into this nationwide system. When DNA is taken from a crime scene, it's uploaded to see if it matches up with anyone already in there. If so, law enforcement officials get an identified suspect.

DELIA: OK Alex, so here’s where things get a little complicated. In North Carolina, the people that use and work with CODIS are at the state lab. That’s in Raleigh. Now we’ve told you CMPD has its own lab. As we explained in a previous episode, CMPD’s lab does its own analysis of DNA evidence found in sexual assault kits. The CMPD lab inputs found DNA profiles into a computer system that syncs with CODIS.

OLGIN: But it’s the state lab in Raleigh that gets notified if there’s a hit. Then it lets the CMPD lab know. Point being, the state lab and the CMPD lab are two different entities, but they work very closely together.

To recap here’s how it works in Charlotte — a SANE nurse does the sexual assault exam, a police officer picks up the kit, the CMPD lab analyzes the sexual assault kit. If a DNA profile is found, it’s put into a computer system, which is part of the CODIS databases.

DELIA: The DNA profile in Linda’s kit was uploaded to CODIS the first week in March 2017. That’s what Cpt. Peacock told us. It’s about a year and eight months after Linda’s assault. Peacock says the delay is because it took so long for her kit to be processed.

PEACOCK: And unfortunately that's not something that happens overnight. It took several months before the kit was ever worked because of backlog. So by the time it gets worked, they screen it. They determine there's male DNA. From that point, they send it to DNA analysis to try to get a match. It goes into CODIS.

OLGIN: The backlog as defined by CMPD is the kits waiting in line to be tested. The department says that number hovers around 200.

How long it takes to fully analyze a sexual assault kit depends largely on how busy the scientists in the lab are, says Ray Wickenheiser. He’s the president of the National Association of State Crime Lab Directors. His day job is running the New York State Crime Laboratory System in Albany.

Ray Wickenheiser
Credit U.S. Department of Commerce

RAY WICKENHEISER: When you consider if you have too many cases to do, well why did they take 100 days? Well, if I started it today, it would only take two weeks, but much of the time it takes for a case to get done is while it's sitting waiting its turn to get done. So, if you started today, it should take two weeks, but the problem is getting to that case when you don't have enough capacity.

DELIA: By capacity, he means enough people, time and resources. Once a lab finally gets to that kit, they work through the collected evidence to try and find a DNA profile. If that profile is found, it’s then uploaded to CODIS. There are about 300,000 profiles in the system in North Carolina. North Carolina’s state lab CODIS administrator — the one who manages DNA profiles in CODIS and tells local law enforcement when there are hits — is Cortney Cowan. She says who is in the state database has changed over the years. First, it was people convicted of your more violent crimes like murder. Then, in 2003, the law changed to include all convicted felons.

CORTNEY COWAN: And then in 2011, we added an arrestee provision into the law where certain arrests, definitely not all arrests, but certain arrests are included in that as well.

OLGIN: That expanded the people put into CODIS to now include those arrested for things like murder, rape and other sex offenses, kidnapping, armed robbery, cyberstalking and even dismembering human remains. If you’re not convicted, your profile should be expunged. A few misdemeanors are also included, like stalking.

DELIA: Cowan says it’s best to think of a DNA profile as a series of numbers.

COWAN: And it's actual numbers that are imported into the DNA database, and the numbers are compared against different profiles.

OLGIN (to Delia): Wait, it’s numbers that are entered into CODIS, not someone’s name?

DELIA: Right. So let’s take for example an imaginary man named John Smith. He’s a convicted felon, so he’s already in CODIS. Let’s say he commits a sexual assault and the woman he assaulted gets an exam done. In this case, the lab finds a male DNA profile and uploads it to CODIS. The way the profile is uploaded is a series of numbers. That series of numbers is compared to all the other DNA profiles in CODIS. If there is a hit, a series of numbers is what the state lab gets back, not John Smith’s name. His DNA sequence is run through a separate computer system that generates his name, which is then given to the local law enforcement agency.

OLGIN: So CODIS is a really effective tool if the DNA profile of the person who committed the crime is already in there. And the DNA hit is just the starting point for police, because unlike television crime dramas, the officer doesn’t just go out and arrest that person immediately. In reality, an officer has to go get another DNA sample from the person who the lab says the DNA belongs to. It’s a double check. That sample is then checked against the one taken from the crime scene or the sexual assault kit to make sure it’s the same person. Finally, the arrest can happen.

DELIA: On the state lab’s end, they verify to make sure everything was entered into CODIS correctly. They also check to see if the person could have actually committed the crime and, say, wasn’t incarcerated.

OLGIN: But in Linda’s case the process didn’t quite happen that way. Detective Cougill checks in with the CMPD crime lab multiple times, according to Captain Peacock, to make sure the profile of the man Linda says is Mr. X is in CODIS. Detective Cougill is told he’s in there.

PEACOCK: So what had happened is throughout the process detective Cougill had checked not once, not twice, but I believe a third time to ensure that this guy was in CODIS because obviously if we have an unknown suspect profile that we believe is him, and it's been uploaded into CODIS, we should get a hit against any offender that matches against it. And that wasn't happening.

DELIA: So that’s why Cougill and Banner tell Linda in June of 2017 at the police station that the guy she identified is not Mr. X. Again, here’s Peacock.

PEACOCK: So that's what happened is when this unknown sample in this kit hits on this guy, then the state is notified to take a look at it and review it for accuracy. At that time, they determined his sample was ineligible and needed to be pulled out.

DELIA: There are very specific rules about what DNA samples are eligible to be in CODIS. What Peacock is saying here is that somehow, this profile got inputted into CODIS, but it never should have been. So the state lab notified the CMPD lab, Peacock says, that the DNA profile was ineligible and needed to be pulled out.

PEACOCK: They sent our lab a letter to that effect, which goes into a file. And it wasn't until Detective Cougill asked again about the status that they, that they researched and found the letter and realized he's not in CODIS. Does that make sense?

DELIA: Not to Linda, and honestly, not really to us. Because here’s the thing: We reached out to the state lab about the letter it sent to the CMPD lab. They would not let us see the letter because information about these DNA profiles are confidential, but a spokeswoman says that it sent the CMPD lab an email on March 27, 2017. Peacock says that’s when CMPD was notified the DNA hit on Linda’s kit was ineligible. But remember, Cougill wasn’t given that information.

OLGIN: So therefore, the state lab couldn’t tell CMPD the name of the hit. Peacock says that notification went into a file and never got to Cougill. So when Cougill tells Linda three months later that there is no hit on the DNA profile from her sexual assault kit, it’s because she didn’t know about this email from the state lab.

DELIA: So we asked CMPD if anything would change to ensure something like this would not happen again.

Peacock responded by saying the CMPD lab updated its policy. So now if something were to happen like it did in Linda’s case where there’s been a hit but the lab can’t say who it is, unless there is a court order, the detective will get an email notification. That wasn’t written into the lab’s policy before, which is why Cougill didn’t get a heads-up. So when Cougill said this in June 2017:

COUGILL: We have DNA. It’s somebody’s. We’re just waiting to find out who’s it is.

DELIA: That was partly true. They did have someone’s DNA, but they already had a clue that something wasn’t right. More is coming up. I’m Sarah Delia.

OLGIN: I’m Alex Olgin.

DELIA: This is She Says.

(Midbreak)

DELIA: We are going to talk about what we know Detective Cougill tried to do once she found out about this mysterious CODIS hit.

OLGIN: In August 2017, Detective Cougill tells Linda she’s going to attempt to have a judge force the lab to reveal the identity of this mystery hit, but that doesn’t work. In a memo to the detective, the judge says, according to the law, the state lab decides the eligibility of samples in CODIS. If the sample is in there correctly, a court order isn’t necessary.

This means that nothing happens.

We’re going to go back to that November 2017 conversation Linda has with Cougill. It’s the same one we referenced earlier in this episode. Linda wanted an update on her case. So she goes to CMPD headquarters.

DELIA: This time Linda meets only with Cougill. She starts by trying to explain to Linda how this mystery hit happened.

"There was a hit. It matched somebody in your kit. ... But that person's DNA should not have been in the system."

COUGILL: There was a hit. It matched somebody in your kit. Whatever the DNA that was sent from your kit was sent to the lab. There was a hit on that.

LINDA: OK.

COUGILL: But that person's DNA should not have been in the system.

LINDA: OK.

COUGILL: I don't know how it was obtained. I don't think it was obtained, it wasn't obtained illegally. It just wasn't supposed to be in the system.

LINDA: Got it.

COUGILL: Because it wasn't a violent crime…

LINDA: OK.

COUGILL: ...for which that person. I can't assume that it's him. I'm putting two and three and four together, and I’m like, well it has to be him because I knew his DNA was already in the system.

DELIA: Earlier in this conversation, Detective Cougill says, ‘I’m assuming it’s him.’ But then as you just heard says, ‘I can’t assume it’s him. I'm putting two and three and four together... and it has to be him because I knew his DNA was already in the system.’

Cougill tells Linda something else that’s significant in this November 2017 conversation at CMPD. First, you’ll hear Linda.

LINDA: Well, I feel strongly, I mean, that it’s him.

COUGILL: If it’s not, then we’re done. Yeah, I mean.

DELIA: We’ll clarify what “we’re done” means in a minute. First, Linda and I caught up shortly after her meeting with Cougill. And remember, this November 2017 conversation was the first face-to-face they had since she was told it wasn’t the person she identified.

LINDA: And I mean here's the thing. It's him. I know it. I know it. I mean there's no question about it. It is him. I mean, period. So, you know, if it comes back -- let's say that you know she gets the court order or whatever -- if something comes back and it's not him, then I'm sorry. So something is, something's not right at all. At all. I mean I have no doubt whatsoever.

"I don't feel a sense of urgency whatsoever. But yet there's a fear of asking too many questions."

DELIA: Linda has all these questions, and she calls the detective repeatedly to ask for updates. But she sometimes worries she’s walking a fine line between keeping her case alive and not ticking off the detective.

LINDA: I don't feel a sense of urgency whatsoever. But yet there's a fear of asking too many questions.

DELIA: You're afraid of asking too many questions?

LINDA: I’m afraid of asking. I don't want to upset someone or, you know, there's been a couple of times where the detective felt like, you know, like either myself or my husband were questioning her ability to do her job. In fact, we were just asking questions that we didn't know an answer to. But she's gotten defensive a couple of times, and it wasn't, you know, I don't, I don't want to upset her because I don't — and it shouldn't be this way and I hope it's not. But, you know, I'm afraid if I ask is something that would be upsetting to her, that that might affect — you know I hate to think that I don't want that to be the case. But, but I'm just speaking to how I feel, I'm afraid to push it.

DELIA: And when Cougill says if it’s not him, then ‘we’re done,’ Linda doesn’t know what that means. So she asks for clarification in a December 2017 phone call with the detective. Cougill says by “we’re done,” she meant Linda’s case would become a cold case. We know this because at this point Linda is recording every single phone call or in-person sit-down with the detective, unbeknownst to Cougill.

OLGIN: Her case going cold is Linda’s worst fear. A case going cold means all leads have dried up. That’s different than when a case is closed. A case is considered closed if the victim asks the detective to stop working it, the case is declared unfounded or an arrest is made.

DELIA: So at this point, it’s mid-December 2017. Cougill was able to obtain another court order called a non-testimonial order, which basically would make the man Linda says is Mr. X submit a DNA sample on the spot, but Cougill is never able to serve this order in person, and she says it’s no longer an option. So she tells Linda she’s going to try and do what she did before: she’s going to ask a judge for a court order that would make the lab reveal the identity of this mystery hit. Linda and I spoke after she got this update from Cougill.

LINDA: And again I'm paraphrasing, that they’ll sign a court order, and at that point, I asked her, you know, is there anything I can do to help regarding this court order because I guess I feel a little bit like, you know, where there's been so many inconsistencies throughout this that it's like I want to be like, ‘Hey are you sure you have the right information in this court order?’ Because I don't know what's being presented and, you know, it needs to be just right.

OLGIN: Remember in episode 2 we talked about Cougill going to collect a potentially really important piece of evidence for Linda’s case, but she’s delayed in doing so because she gets pulled into another case.

LINDA: That they're busy and that she had no idea when she would be getting to my case to get the court order.

OLGIN: That court order is Cougill’s second attempt to try and get the lab to reveal who the mystery hit is.

DELIA: So basically to help Linda’s case move forward, Cougill either needs the lab to reveal who the mystery hit is or to obtain a DNA sample from the man Linda has identified to rule him out or confirm him as a suspect.

OLGIN: We want to point out that CMPD did make an attempt to get a DNA sample from him. The first time is in fall of 2015, when officers went out to his house and asked him to provide a voluntary sample. He declined. Cougill tells Linda in a August 2017 email she goes to his Charlotte address again, but he’s no longer living there. Then in the fall, Cougill gets a non-testimonial court order that would compel him to provide his DNA. But remember, she isn’t able to serve the order in person and nothing comes of it.

DELIA: At one point during the investigation, Linda says she’s told that her case was a priority and had been pushed up. We’ve been going back through email exchanges between Linda and Cougill, and there are a couple of things I want to point out to you.

On Monday, Oct. 10, 2016, Linda emailed Cougill. Linda asks Detective Cougill why she can’t try and get a court order for DNA from the person Linda identified.

Cougill’s response is sent the next day, Oct. 11, 2016. She writes:

“We do not have enough probable cause to get a court order. You identifying him online is not enough. We don’t need it because his DNA is already in the system. I have asked to move your case to the top of the list and make it a priority. I will let you know when there is a hit. Please be patient.”

OLGIN: Cougill tells her identifying him online isn’t enough probable cause. But then nine months later in July 2017 when the mystery hit comes back, Cougill appears to start counting on Linda’s internet search. Police later acknowledge in this case the victim’s search was key.

DELIA: Cougill won’t get that court order to make the state lab reveal the identity of the DNA hit before the end of 2017. And come January 2018, she has a new plan. She’s going to get a search warrant for the man Linda identified. That will allow Cougill to collect a buccal from him. In civilian terms, that’s a cheek swab.

OLGIN: She tells Linda she has plans to get the swab as soon as possible. But almost a month goes by, and Cougill still hasn’t done it.

DELIA: So on Feb. 13, 2018, Linda calls Cougill for an update. Has she gotten the search warrants? If so, when will she be able to get the swab? Linda ends up breaking down on the phone.

LINDA: You know I'm not doing too well and um, I’m just really tired with all of this, and...

COUGILL: I know.

LINDA: I just don’t really understand. There's several things that hang over my head.

DELIA: Linda goes over the aspects of the case that still bother her: Who is this mystery hit? What about the other male profile that was found in her kit? Why doesn’t she show up on the camera footage of the gas station Cougill says she reviewed? Do some of these parts that she doesn’t just have any answers for make her unreliable in the eyes of the detective?

LINDA: One of the biggest things with all of this is feeling like you’re believed, and when stuff like that --

COUGILL: I’ve never not believed you.

LINDA: Well, you know when we first --

COUGILL: I'm sorry that you feel that way, but…

LINDA: I know.

COUGILL: I have never — you know I have totally have been working hard on this case for you, and I know that it sucks that it's all about time. And I'm sorry about that, but there’s just not — I don’t have any control over that.

OLGIN: The conversation ends with no definitive plans on when the detective will get the swab. But she says for Linda not to stress about it.

DELIA: The next day, Valentine’s Day 2018, I called CMPD and told them we had been following a sexual assault survivor’s case and that she had been recording Detective Cougill and we had some questions.

Two days later, Cougill leaves Linda a voicemail.

COUGILL: Just calling to let you know that I’m going to go court on Monday to get the buccal. I’ve got that all planned out with Cleveland County. So we’re all set.

DELIA: The man Linda identified in her internet search was due in court in Cleveland County, about an hour west of Charlotte, for charges unrelated to Linda’s case. So I went to court that day. I didn’t see the detective get the evidence, but when I got back to Charlotte, Linda said the detective called her. She got the cheek swab.

LINDA: Did he act, I mean, how’d he act and stuff?

COUGILL: He’s just surprised.

LINDA: Really?

COUGILL: Like ‘I remember them coming to talk to me,’ but like, ‘I don't remember anything about this.’ And I was like ‘OK.’

LINDA: What?

COUGILL: Well, I have a search warrant, so just.

LINDA: Wow.

COUGILL: So …

LINDA: Oh my gosh. OK.

COUGILL: It was good. It was better than him fighting.

LINDA: Right, right. Well, here we go.

DELIA: I’m Sarah Delia.

OLGIN: And I’m Alex Olgin.

TIMELINE OF EVENTS:

CREDITS:

She Says is written, produced and reported by Sarah Delia. Our editor is Greg Collard. Joni Deutsch is our producer. Alex Olgin is our reporter. She co-wrote this episode. Music is provided by Pachyderm Music Lab. Keep the conversation going on Twitter using the hashtag #WFAESheSays. You can tweet at Sarah Delia directly @SarahWFAE. If you want next week’s episode in your feed as soon as it comes out, make sure to subscribe to She Says on NPR One, Apple Podcasts or wherever you find podcasts. You can find more information about the podcast at WFAE.org/shesays.

Thanks for listening. We’ll see you next week.

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