She Says: The Burden

Jan 9, 2019

Linda has been waiting for months to hear from the Mecklenburg District Attorney's office about whether her case will move forward. Then she gets a call. We rejoin Linda on the winding road for an update and a closer look at the burden of proof.

READ THE TRANSCRIPT:

EPISODE 11: THE BURDEN

Editor’s note: If you haven’t listened to the entire first season of She Says, stop. Go back and listen and this update will make a whole lot more sense.

This podcast includes adult language and themes. It also contains descriptions of sexual violence. Please be advised.

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SARAH DELIA: If I could be a fly on the wall anywhere that wasn’t a tropical island, it would be the Mecklenburg County courthouse. Lives are changed forever there. It’s a building where someone could be getting married in one room and, in another, facing charges for assault, rape, murder or all of the above. It’s where someone’s story is told and stored, for at least a period of time. It’s where peers evaluate and judge. It’s where sentences are determined and arguments are made.

It’s the place Linda has been searching for as she’s traveled the winding road. Every step she’s made, every turn she’s chosen, well, she’s hoped it would lead to here. This is where she would get answers. This is where she would get justice.

But we’re not quite there yet.

The courthouse is this living, breathing thing. The blood that flows within the building are the people – the public. The courtrooms are vital chambers of its heart. There’s even a cafe, the stomach. And there are many important arteries in the courthouse. One of them is tucked away on the second floor. It’s the criminal clerk’s office.

And the criminal clerk’s office is a lot like a library. First off, it’s free and open to the public and a bit underutilized. It’s usually quiet. And it’s a great place to find the details of a gripping story — the underbelly of what someone says happened to them.

And just like a library, there are stacks and experts – those are the clerks – who know how to quickly weave in and out of rows of files and retrieve the one you’re looking for. Like a book, the file contains characters, a plot and scenes. Anyone can publish a book if you find the right publisher or even self-publish. But not so much with a case file. Not everyone’s story goes before a judge. Not everyone gets a verdict. Not everyone gets the justice they seek.

After all, Lady Justice is blindfolded for a reason. And she takes the blindfold off for no one. No matter how sad the story.

No matter how many lives have been affected by this horrible, tragic thing that someone says happened. She doesn’t know which way the scales are tipping and who they are tipping for.

Two months after our last episode of She Says in August of 2018, I found myself spending a lot of time in the Mecklenburg County Courthouse once again. The place Linda hoped would be her last stop on the winding road. The place where she could maybe find some resolution to her story, to the crime she believed she was owed some justice for.

But this time, I wasn’t there to pour through documents in Linda’s case file. This time, I was there for a trial.

I’m Sarah Delia, this is She Says.

Trial Courtroom Deputy: All rise

DELIA: One of the most important things about covering a trial is where you sit. For me, that’s not the in the front row.

I think the best seat is in the middle of the long pew in the back of the courtroom. When I was covering this trial that lasted eight days, I made a beeline for that spot each day. You can see everything from there. The defense was to my left, the judge in the center and the prosecution to my right. The box of blank-faced jurors was closest to the witness stand. The testimony from a witness is sort of like a one-way conversation to the jury.

And as I observed from the back pew day after day, I saw some familiar faces.

First, Assistant District Attorney Kristen Northrup. She’s the head of the adult sex crimes unit for Mecklenburg County.

Northrup in the courtroom: And that same fear prevented her from yelling, saying no, telling him to stop.

DELIA: Then there were familiar names on the witness list. Like Detective Cynthia Banner with the Charlotte Mecklenburg Police Department. In June of 2017, Banner was one of the detectives who told Linda there was no way that the man she identified through an internet search could be the same man who assaulted her. To refresh your memory, because it’s been a while, this is what she said in Episode 3:

BANNER:  I just said it. This continues to go.

LINDA: It does, but my…

BANNER: We don’t close the case out …

LINDA: You gotta understand.

BANNER: I do. I totally do. And that’s why we keep repeating it, so you’ll hear us. The case is still open. We’re still working it. It’s just that the person whom you believe to be the suspect is excluded. So he won’t be getting arrested...

DELIA: Of course by now we know, he did get arrested. Banner did not end up testifying, but someone she works closely with did.

CHRISTINA COUGILL: Good morning. My name is Detective Christina Cougill. I’ve been with CMPD for approximately nine years.

DELIA: Detective Christina Cougill, of course, is the officer who worked Linda’s case.

And although this was a rape trial and the prosecutor, Kristen Northrup, was the same prosecutor assigned to Linda’s case and the detective, Christina Cougill, was the same detective who had investigated Linda’s assault, this was not Linda’s trial.

This was the trial of the state versus Kevin Olsen, a former University of North Carolina at Charlotte football player who was accused of raping his former girlfriend in February of 2017. He’s also the younger brother of Greg Olsen, who plays for the NFL team the Carolina Panthers.

I covered this trial from start to finish. I wanted to understand the prosecution of a sex crime, which would be useful if Linda’s case ever made it that far.

And Linda was following it, too. She checked for daily updates as the trial dragged on. And you can see why: This was the same prosecutor in charge of her case. This was the same detective she spent years trying to get to believe her story. It was weird to have the same major players in the news each day.

Linda was monitoring Twitter the day the verdict came down on the four sex crimes Kevin Olsen was charged with. The verdict: Not guilty.

LINDA: I felt, I felt really sick. I got, I got, I like felt physically sick, it’s like my stomach, my chest just tightened up. I just sat there and thought, you know, what the heck? And it was hard not to, not to think about that there were common people involved in the courtroom, that, you know, are involved in my case, although the actual case themselves was very different. But, you know, I can't help but think about that.

DELIA: About two weeks after Olsen was acquitted of all charges, Linda got a phone call. The call came from the DA’s office on a Monday. Would she be available to come in this week to meet and talk about her case? Even though Linda called the DA’s office multiple times for an update, she wasn’t expecting this.

Last we left you, Linda was waiting for her case to go through what’s called a scheduling conference. Basically, the prosecution provides the evidence they have to the defense and the two sides discuss the future of the case – a possible trial, a plea deal or the charges being dropped.

That scheduling conference had been pushed back multiple times. She wasn’t sure what to make of this request to come in.

LINDA: I just really, really hope that it, that they don't tell me that they're not going to move forward with prosecuting this. I don't know how, I don't know how I’ll be able to handle that. I don't think you can ever really prepare yourself for that no matter what.

DELIA: The DA’s office wouldn’t say much more other than she should come in and that it would be OK for her husband to come along for support. They decided to meet on Thursday. And it was a long four days to get there.

I met Linda with her husband a couple of blocks away from the DA’s office before this meeting.

LINDA: I'm really super nervous. I've cried. I've, yeah, kind of had a meltdown trying to get ready this morning. Just really nervous. I just don't know what to expect today. I just hope that we don’t go in and they say they're not going to move forward with prosecuting. I just, I just – that's my like worst fear. It's like, it seems like forever that I've waited for this day.

DELIA: Not wanting to make them late, we walked over. I planted myself on a bench that faced the DA’s building and watched as they climbed the steps to the golden doors of the District Attorney's office.

And when I say golden, the doors look like two large gold bricks. In 1928, when this building was opened, the Charlotte Observer newspaper called it “the million dollar temple of justice.” That’s because the building was originally the courthouse and even included a jail on the top floor.

The entrance to the Mecklenburg County District Attorney's office.
Credit Sarah Delia / WFAE

Even though it no longer serves as the courthouse or jail, it still has the words “Mecklenburg County Courthouse” etched in the top of the building. The entrance includes larger-than-life columns that make you feel like you’re visiting the Parthenon. The insides of the building match the grandeur of the outside – including the original pink Tennessee marble featured in parts of the building.

But I’m not inside. On this day, I’m sitting on an old wooden bench with no back during an unseasonably cold day by Charlotte standards. Waiting for some news.

DELIA: Is waiting longer out here, like does that mean there’s better news for her inside? Like, are they sitting down in there, are they telling her about next steps? Or is it a bad sign because she’s in there longer, or did the appointment start late and I don’t know, and they are just now sitting down, you know? I don’t know. There are like a million options.

DELIA: An hour goes by, and for me, it just drags on. Linda would later tell me while in the meeting, she felt like time stopped. At one point she says, it felt like she was only in there for five minutes. But it was an hour, I counted.

And then, the golden doors open, and it wasn’t the same guy coming out for his third smoke break staring at the weird woman talking to herself. Linda and her husband squint from the glaring sun as they walk down the stairs to meet me.

DELIA: Hey, what happened?

DELIA: That’s coming up after this quick break. I’m Sarah Delia. This is She Says.

(Break)

DELIA: After an hour of waiting, it was time to know what direction Linda would be taking on the winding road. Would her case be moving forward, or would it all come to a crashing halt? This could be a change in direction that wouldn’t be up to Linda.

DELIA: What happened?

LINDA: They’re dismissing it.

DELIA: Do you want to sit down?

LINDA: Yeah, let’s -- I want to get like out of this area.

Mecklenburg County Assistant District Attorneys Kristen Northrup, left, and Donna Rainwater.
Credit Sarah Delia / WFAE

DELIA: Linda’s shaking as we walk to the parking garage where the family’s car is parked. She did record the conversation, which included sex crimes prosecutors Kristen Northrup and Donna Rainwater. They actually asked if she would be recording because, by now, Linda has a reputation for that.

Here’s Northrup:

NORTHRUP (to Linda): I don't want to beat around the bush. I just want to get right to the point. I want to tell you that in this case after all of the review, we determined that we will not be able to meet the burden of proof beyond a reasonable doubt.

DELIA: Linda took a few deep breaths and then responded.

LINDA: I want to know why. Because I have what? I have, I have done absolutely everything in my power in being as transparent as I can be. And, I know. And he's just going to walk off now. I thought he was going to kill me that night.

NORTHRUP: I'm very sorry.

LINDA: My whole entire life has been destroyed since that night.

DELIA: Northrup proceeded to go over why the DA’s office was dropping the case, which was outlined in a dismissal letter. She gave Linda a copy. Linda tightly clutched the letter as we sat in her car after the meeting at the DA’s office. I asked her to go over what happened step by step.

LINDA: It’s in this paper right here. That is bullshit. I am sorry, but that is, that is bullshit. He is a violent, dangerous, disgusting, filthy human being that has destroyed my life since that night. He’s lied, and they know it, but that doesn't seem to matter.

DELIA: The man Linda says assaulted her ended up admitting they did have sexual contact, but he says it was consensual. 

LINDA: You know he said he didn't, supposedly he didn't know me, this and that, but now he's saying that it was consensual. It's, it’s, that he's lied. That's lies, and they've got it written in there like it’s fact. How is that, how is that fair? What about my — what about what I had to say?

DELIA: For the sake of clarity, we’re going to refer to the man who was charged with Linda’s assault as the former defendant.

The dismissal letter references calls the former defendant made from jail after he was arrested in connection with Linda’s assault. Those calls were recorded and we requested copies from the sheriff’s office, but the department denied that request. But prosecutors listened to those calls. They said in one of the conversations the former defendant spoke to his fiance and he claimed that sexual contact had occurred but that it was consensual. That’s different from what he told CMPD when he said he didn’t know Linda.

And to be clear, Linda strongly denies that the sex was consensual. She maintains she was violently sexually assaulted.

That’s what Linda said the day police interviewed her at the hospital, and that’s what she stated again as I sat in the back of her family’s car pointing a recorder in her direction as she processed that her case was dismissed. Her husband sat in the driver’s seat. She was on the passenger side in the front.

LINDA: I don’t know. Is there justice for sexual assault survivors, victims? Whatever they feel like they are at the moment? This is insane. I really, I'd like to know other than somebody actually an eyewitness to it or video of it. I mean, my God, how many people are prosecuted for sexual assault? I'm sorry.

HUSBAND: I’m just going to step out for a second.

LINDA: I mean it's just like I don't know. I don't know.

DELIA: There’s much more to digest in this reason for dismissal letter that we’ll get to in a minute.

To say Linda is upset is the understatement of the year. She’s grieving her case. She’s in denial that this is what is actually happening. She’s angry as hell. She’s trying to bargain for her voice to be heard, and of course, depressed for what I think are pretty obvious reasons. The last stage of grief is the one she just can’t get to – acceptance.

She cannot accept that this is her life. She cannot accept that this is the end of the road for her case.

Linda was convinced the former defendant, the man she had identified through an internet search, who came back as a DNA match, would at some point go to trial. To Linda, any other outcome was just not possible. She’s clung onto this hope — this thing she knew to be true for more than three years. And just like that, it was gone.

Part of why she can’t accept this outcome is because of the number of outstanding questions she has: What percentage of sexual assault cases actually end up getting prosecuted? Why does a prosecutor try one case but not another? Why is it relatively easy to arrest someone — indict them even, but not have enough for a trial or a plea deal? Her big question is: Why ... not ... my ... case?

What it comes down to is, is there enough evidence to corroborate and support what Linda says happened beyond a reasonable doubt. What it comes down to is the burden of proof.

You may be wondering, well, if was there enough evidence — including DNA — to arrest him, why isn’t there enough to prosecute him? When the police make an arrest, the burden to meet is probable cause. All that requires is evidence that shows it’s reasonable to believe a person committed a crime. Detective Cougill’s probable cause was Linda’s internet search and the DNA match. We know that because she laid it out in court documents. But the burden of proof is different for prosecutors. They can’t just say, ‘Yeah this guy probably committed this crime.’ Prosecutors must show this person committed this crime beyond a reasonable doubt, and here’s the evidence to prove it. And that’s the highest legal standard.

To fully understand the weight of that burden, we would need to talk to the person charged with meeting it, Kristen Northup, the assistant district attorney assigned to Linda’s case. So She Says reporter Alex Olgin and I went to the million dollar temple of justice to get some answers. I started off by asking Kristen Northrup the big question.

DELIA: Why did you all decide not to prosecute this case?

KRISTEN NORTHRUP: We try and look at a case as if it is a puzzle. And the goal, of course, is to make that puzzle as tight as possible with as many pieces as possible. And unfortunately here there are just a few too many pieces that were missing to make us comfortable with meeting that burden of proof.

DELIA: It doesn’t mean that what Linda said happened isn’t true, the state said. It’s just that there aren't enough pieces to complete the puzzle that creates a clear image.

So, let’s look at some of those missing puzzle pieces. The pieces we do have are from Linda, the prosecutors and the defense attorney. But we’re missing a couple of those all so important corner pieces of this complicated puzzle – like the police investigation file and an interview with Detective Cougill, both of which were requested but denied.

I wish we had those parts, but, I don’t want to discount the pieces that Linda has placed just because we don’t have the police file or interview with Cougill.

CMPD referred our follow-up questions to a spokeswoman and denied our request for Linda’s case file. Linda also requested her case file. CMPD denied that request.

This dismissal letter that points to the missing pieces is about a page and a half long and in very small font. There’s a lot of information and minutiae here. We’re going to look at the big three – the three contributing factors that led to the dismissal of Linda’s case.

Number one, the surveillance video of Linda getting out of a car after she says she was assaulted. This video was brought up in a bond hearing for the former defendant by Mecklenburg County Prosecutor Donna Rainwater. This was the only video evidence police captured from the day of her assault. And Linda thought it was evidence that corroborated her story.

DONNA RAINWATER (from bond hearing): She described the car. She indicated after the assault he did drive her to a particular location and let her out. Detectives followed up and looked at video camera (footage) at 9th and College. They did see this particular car let the victim out. She was seen running through the parking lot before the 911 call was made.

DELIA: Rainwater described Linda running from a car. Linda never remembered it like that. She remembers trying to calmly and slowly exit the car so as not to raise any suspicion that she was about to call the police. But she recognizes with her trauma, she doesn’t always remember every detail and in what order events occurred. So, she trusted the description the prosecution gave of what happened. After all, they surely would have reviewed the tape before this bond hearing.

It turns out, that’s not what the video shows, according to Linda and the prosecutors, who have seen it and detailed it to us. We weren’t allowed to see the video ourselves, but we’re told Linda is seen calmly getting out of a car and walking away. And that’s how she remembers it, and in this case, she remembered right.

So why was this footage described this way during this bond hearing? We asked Kristen Northrup that question.

NORTHRUP: When that bond hearing took place the only information that we had was a very brief summary statement, and I had not even received any of the papering packet, which is our discovery packet from law enforcement at that point. So that information, I think, was maybe just premature – a premature characterization of what that video showed.

DELIA: The DA’s office says often it doesn’t get the investigative file from police until after the hearing. That means, prosecutors sometimes walk into the bond hearings not having reviewed all the evidence. Ideally, prosecutors would have been able to look at the footage and describe it more accurately. That didn’t happen, but that’s not why this video is concerning to prosecutors.

Linda has sworn up and down she did not have a purse the night she says she was assaulted. She was adamant about that fact to us and the police, but it turns out [that] this video — which shows her exiting a car — also shows her with a pink purse.

Here’s Northrup.

NORTHRUP: I think for the prosecuting witness in this case, the purse was the clearest example of something that we just couldn't corroborate because we had the video evidence of it.

DELIA: Northrup is using the term prosecuting witness to refer to Linda. Northrup met with Linda a second time to show her this video because Linda could not believe that she had a purse that night. Linda worried that this inconsistency was the only reason they were dropping the case. Northrup says that’s just not true.

NORTHRUP: And so I think maybe that's why she's giving that a little extra weight because that was - we've talked about that with her as well. But again, it just really is all of the factors present in this case that really affected our ability to prove it.

DELIA: This whole purse thing may seem so nitpicky, but it impacts Linda’s credibility because if she misremembered something like a purse, what else did she get wrong? That’s something prosecutors have to worry about when it comes to how a defense attorney will try to pick apart a victim’s credibility.

Public defender Dean Loven, who was representing the former defendant in Linda’s case, told us inconsistencies add up and the purse is something the defense would have jumped on.

DEAN LOVEN: Any extrinsic evidence that corroborates what she said is always very important in a case like this. If she said, ‘I dropped my purse,’ and they find the purse there exactly where she said it would be, that's very important. On the other hand, if it's not there, that calls things into question. And, as I recall, and I was just looking here to make sure, the videotape not backing up what she said would have been something that would have been a considerable issue at trial.

Public defender Dean Loven.
Credit Sarah Delia / WFAE

DELIA: To be clear, Linda says she didn’t intentionally lie or try to conceal that fact. She says she just remembered wrong. She had been through a traumatic event, which we know can affect memory. Not to mention she was really stressed, anxious and scared. And this is nowhere near on the same level, but think about when you’re really frazzled and late and trying to get out the door. You’re scrambling to find your car keys, only to realize you’ve been holding them the whole time. It’s no big deal when you realize those keys have been in your hand, but for Linda, having that purse and not remembering it is huge. It’s everything. It’s her credibility.

LINDA: Yeah, so I saw the video and I'm carrying a ginormous – it's not pink, it's coral – purse. I looked and I found it, and it was a coral-colored Vera Bradley purse.

DELIA: Inconsistencies, no matter how small, add up. Even if that inconsistency takes the form of a purse. We’ve reached point two, which is really an amalgamation of a bunch of small inconsistencies outlined in this dismissal letter.

ALLISON LEOTTA: So in every case that I've ever handled, there have been some inconsistencies in the victim's statement.

DELIA: That’s Allison Leotta. We reached her on a Skype line that is a little scratchy so you may hear some crackling. She’s a former sex crimes prosecutor from D.C. and now an author. She says over the course of an investigation, a victim has to give a statement multiple times to different people. It can be like a game of telephone.

LEOTTA: We just, none of us can tell the same story two times and tell it exactly the same way. You just can't do that -- and particularly, in a situation where you have to tell the most traumatic story of your life over and over again to a series of strangers who are then transcribing it themselves. You know, taking that story, putting it through their own personal filter and having it come out on a piece of paper on the other side, you're going to find inconsistencies.

DELIA: The dismissal letter is based on findings from police statements and interview recordings as well as audio of phone calls the former defendant made from jail. We don’t have those pieces of evidence. We asked the authorities for all of them but were denied. But we do have the dismissal letter, which summarizes those pieces, and we do have Linda’s medical records. Her medical records are important for many reasons, one of which is that the records include what the doctor, medic and nurses recorded when they treated Linda that day.

We’ve compared the language from the dismissal letter to that of her medical records. While most of it is consistent, there’s one line in particular in the dismissal letter that always stuck out to us. It was a comment from the first responding police officer. That’s the one who gets to the scene first and then follows Linda to the hospital until the detective arrives.

The first responding police officer wrote he overheard her say to the ER doctor she wasn't penetrated, but according to that ER doctor’s notes, Linda recalled the defendant penetrating her vagina and rectum with his fingers but not his penis. The word “overheard” stood out to us.

Was the first responding officer in the same room when he thought he heard her say that? Or outside the door or curtain? Did he think penetration only meant when a woman is penetrated by a penis? Linda says that’s likely where this misunderstanding occurred. According to the dismissal letter, the detectives say she didn’t report being penetrated. Again, it sounds like there could be some possible miscommunication about what constitutes penetration.

The mention of a box-cutter is also brought up as an inconsistency. In the dismissal letter and Linda’s medical records, the medic says Linda reported the former defendant held the box-cutter to her throat. The dismissal letter says she told police that a box-cutter was present and that she feared for her safety if she didn’t comply with his demand for oral sex. I think it’s important to mention that this medic was likely the first person asking her many questions about her assault. And we know from talking to numerous experts throughout the course of this season of She Says, it’s not that strange to have a victim’s story change from the first time he or she tells it.

This letter also says Linda told police she traded Xanax for crack cocaine. She says she doesn’t remember that. In a jailhouse call after his arrest, the former defendant says Linda traded sex acts for drugs. She strongly denies that. These are details that we can’t explore any further since we don’t have the case file. And since we haven’t been able to speak directly to the former defendant, we can’t ask him about his claims.

As absurd as it seems to Linda, this inconsistency between her account and his is another thread the defense would have pulled had this gone to trial. Remember the former defendant claims his DNA is present in her sexual assault kit because they engaged in a consensual sex act. There are no witnesses. Public defender Dean Loven says it comes down to a he said, she said.

LOVEN: If my client says in a case we had sex but it was consensual. Then our main argument is going to be, not denying that the sexual act occurred, but simply saying it was consent. And that quite often becomes his word against hers because there is no test. The DNA doesn't tell you whether it was consensual.

DELIA: We did ask to speak to the former defendant, but he preferred we speak through his attorney. Loven said his client was relieved and happy the charges were dropped.

The third and final missing puzzle piece we’re going to talk about is the one police thought held all the answers. It’s the DNA. CMPD placed so much emphasis on it. Linda was told by the police: DNA doesn’t lie.

But it turns out, the DNA in her sexual assault kit opened the door to more questions.  

The matching DNA sample from the former defendant that came back as a hit to the DNA found in Linda’s sexual assault kit was enough probable cause for Detective Cougill to make an arrest. But remember, there was a second DNA profile that came back in her lab results. And this second profile creates alternative narratives, and that could lead to reasonable doubt, making it very challenging to meet the burden of proof.

We haven’t able to see her DNA results ourselves. We’ve had to rely on police explanations and what the attorneys tell us. Remember, authorities say the second profile came back from multiple swabs, and this second profile did not belong to Linda’s husband. This second profile has always been a mystery to Linda. She swears she didn’t have sexual relations with anyone else that night. Both Detective Cougill and Cougill’s boss at the time said at various points this second profile wasn’t anything to worry about and that the police weren’t pursuing it. But it always was big deal to Linda because she never knew why this second profile was in her kit.  

And it turns out, Linda was right to be concerned because it was a big deal for prosecutors. They said it was another reason for dropping the charges in her case -- partly because of what the defense would have done with that information. Here’s public defender Dean Loven.

LOVEN: When she adamantly said there was no one else and the physical evidence clearly indicated otherwise, that would have been a serious problem for the state at trial.

DELIA: A second profile isn’t the end all be all of hurdles, Northrup says. But….

"It is difficult when we do not have an alternative explanation for the presence of that second male DNA profile." - Kristen Northrup

NORTHRUP: It is difficult when we do not have an alternative explanation for the presence of that second male DNA profile. That is an issue that, when you couple that with all of the other issues and all the other factors, that we didn't feel that we could overcome.

DELIA: Linda is perplexed.

LINDA: You know finding a second, a second male out of the oral swab is what they're saying. And I said that's just not, that's not a possibility whatsoever. No possibility.

DELIA: But for argument's sake, why would it matter if Linda had engaged in a consensual sex act with another man? Why does the second male DNA profile seem to discount the validity of the DNA match of the former defendant?

NORTHRUP: The issue is when you have an additional DNA profile, in any sample, it really calls into question whether we can actually prove the identity of the person that committed the crime. Maybe it's contamination, maybe it's an extra person with a sex act. And any one of those explanations alone could be reasonable doubt for a jury.

DELIA: Former sex crimes prosecutor Allison Leotta says the situation of a second DNA profile found in a rape kit isn’t that unusual.  

LEOTTA: Yes, I've seen many cases where another person's DNA comes up. The person ends up being a mystery the whole time. No one knows who it is in the case. And honestly, it's not really that relevant because the other person's DNA can come there for a number of reasons. I mean, first of all, if the assailant had sex with another person, another man, it might be left on him and be transferred in that way. It could be transferred by putting your mouth on a Coke can that someone else has used.

DELIA: One thing Linda notes is that she did drink out of a soda can in the defendant’s car. And she did smoke crack out of the same device that was in his mouth. There is a small chance DNA could have been passed through those interactions.

Former CMPD crime lab analyst and current private forensic consultant Suzanna Ryan says it is possible but the DNA would have had a short life span.  

SUZANNA RYAN: Or if we're talking about like transfer from drugs, whatever, paraphernalia. You know so that's being passed around and put in one person's mouth and another person's mouth. There would be saliva present, but it would not tend to last very long.

DELIA: In other words, there is a small window of opportunity to capture DNA transferred into someone’s mouth like saliva or sperm. That’s because if you take a drink of water or eat some food and swallow, it could be gone. Linda thinks contamination is the most likely answer for the second sample. And contamination can mean different things. She isn’t sure if contamination occurred from taking a sip from the soda can in the former defendant’s car or while her kit was in the CMPD lab.  

LINDA: When I think, when I’m bringing up contamination, it's not necessarily that I’m thinking so much about the lab, which I’m not ruling out that that can’t happen. But, you know, what – what could he have had on him? And what could have, you know, can you take a drink from something? Can you, you know, can that happen?

DELIA: Here’s former sex crimes prosecutor Allison Leotta.

LEOTTA: So there are reasons why there could be another person's sample. It doesn't help things. It's certainly something that a defense attorney is going to run with.

DELIA: Prosecutor Kristen Northrup says she talked to the lab and there is no evidence of any kind that indicates contamination. But it's not impossible that a sample could be contaminated while at the lab. Former CMPD lab analyst and private forensic consultant Suzanna Ryan says she knows of at least one circumstance during a proficiency test at another lab where an analyst transferred a DNA profile from one kit to another through the scissors she was using to cut samples.

RYAN: And so they looked into it and realized that while the analyst was cleaning her cutting implements she was only using ethanol. And that doesn't kill DNA. Bleach does.  

DELIA: We are not saying this happened with Linda’s kit. The point is, this kind of thing can happen.

Coming up, where is Linda now and did this podcast play a role in the dismissal of her case? That after a quick break. I’m Sarah Delia, this is She Says.

(BREAK)

DELIA: The dismissal letter laid out many reasons for dropping Linda’s case. But the podcast wasn’t listed as one of them. Both the prosecution and the defense said they reviewed the podcast in some capacity. Here’s Prosecutor Northrup:

NORTHRUP: The unfortunate effect of any additional statement that a prosecuting witness makes, whether it's even to me as the prosecutor on the case or whether it's to her best friend who is then interviewed, is that that then becomes a statement of that witness. And that then becomes discovery in a case.  

DELIA: Basically, the more a victim talks it can open them up to scrutiny. Linda says she knew that when she started talking to us. I asked her that question outside of the DA’s office:

DELIA: Do you regret doing the podcast?

LINDA: No. Nope. And I'll be right here to answer any questions about any discrepancies that they have versus what was on the podcast. I will absolutely stand by it and re-evaluate. And if, if there's a discrepancy it wasn't because I wasn't trying to be forthcoming. It would have had to have been a memory issue.

DELIA: While memory issues are problematic for the prosecution and victim, they can be an opportunity for a defense attorney.

For example, what if Linda recalled an important detail one way to me in an interview but completely different at trial? Public defender Dean Loven would have been all over that. Which makes sense, his job is to find the best evidence possible to defend his client, the accused.

In fact, his investigator, sent us an email on June 12, 2018, as we were in the middle of releasing weekly episodes of She Says, and before the fate of Linda’s case had been determined. The investigator asked for 'a copy of the entire file of anything related to the creation of this podcast thing like interviews, audio-video recordings, electronic copies, and our brainstorming notes.' We declined that request by the way.

Again here’s Dean Loven.

LOVEN: So what we would want to know is were witnesses giving statements to you that were different than they were saying under oath in court.

DELIA: Would you have tried to subpoena me?

LOVEN: (Chuckles). Um. I'm not sure how far we would have gone there. We have subpoenaed reporters in the past and we certainly respect the rights, I mean…

DELIA: It’s not personal, I’m just asking.

LOVEN: Country does not work without a free press. And on the other hand, we're going to do everything we can to represent our clients.

DELIA: Because a big part of this podcast is dedicated to how CMPD investigated Linda’s case, we asked Northrup what she thought about how CMPD handled it.

NORTHRUP: My opinion of this investigation, and I've been prosecuting cases for 11 years, is that this was a thorough investigation. I think that in any investigation, you can look at it after months and months of having it and hindsight is 20/20. And you can say, ‘Well maybe, maybe the detective should have looked inside of her purse when she was at the hospital to see what was there.’ But we didn't realize at the time that that would then be a significant item.

DELIA: Northrup also says Cougill and other officers went through hours and hours of other surveillance footage from gas stations and street cameras where Linda says she was that night. But other than the video of her getting out of the car with her purse, they didn’t find her on any other tape. So Cougill never pulled that other video and it was deleted, which is pretty standard.

Northrup didn’t really comment on how Linda was interviewed by police. From a conversation Linda had with CMPD Deputy Chief Katrina Graue in August 2018, we know that Graue was looking into how the case was investigated, which included speaking to the detectives involved. In Episode 10, you heard that Graue even went to Linda’s house and told her the case should have been handled differently by the police department. Linda recorded this conversation with a phone inside her purse, so the audio is not the best.

GRAUE: I just think there are some things we could have done much better.

LINDA: Right, right.

GRAUE: And, you know, I’m sorry for everything you’ve been through. You know, you personally and y’all as a family. And, like I said I think there are some things we could’ve and should’ve done better.

LINDA: Right.

GRAUE: And, um, I know that doesn’t necessarily help you personally, but, you know, I have to make sure that we do better moving forward.

DELIA: So what is CMPD going to do better moving forward? We requested an interview with them to ask just that, but they declined. So I sent some follow-up questions and here’s what we know.

CMPD Spokeswoman Melissa Treadaway said, 'Detectives with the Charlotte-Mecklenburg Police Department conducted a thorough investigation and developed probable cause to arrest a suspect. While the department should have been more responsive to the complainant in this case, the dismissal was not based on the work of detectives. As the district attorney indicated, the dismissal was based on a number of unresolvable issues that would prohibit the state from meeting its burden of proof at trial, not on the quality of the investigation.' 

But she did say there were some changes happening at CMPD in direct response to Linda’s case and the podcast.

Remember the crazy DNA mystery hit in Linda’s case? Because the sample never should have been in CODIS, the system of DNA databases, the state lab couldn’t reveal the identity of the person to the CMPD lab. And the state lab sent a letter to CMPD saying just that. But that information wasn’t initially passed along to Cougill. This miscommunication between the labs and detectives in Linda’s case caused CMPD to change its policy. Now, if a mystery hit comes back, that kind of information is passed along to detectives in more detail.

There will also be some changes to CMPD’s interview training. In 2019, CMPD officers will get additional training on conducting trauma-informed investigations. “This training will help our officers hone their skills in terms of gathering information for an investigation in a way that does not further traumatize crime victims,” CMPD says.

We plan on following up with them to learn more about this training and how it’s being implemented.

DELIA: So getting back to that question Linda posed at the beginning of this episode.

LINDA: I mean, my God, how many people are prosecuted for sexual assault?

DELIA: You might be surprised to learn the government doesn’t have easily readable statistics about how many rape charges end in convictions. The state of North Carolina is no different.

CASSIA SPOHN: No, they're not tracked at all.

DELIA: That’s Cassia Spohn, a criminology researcher at Arizona State University. She’s studied how rape cases are prosecuted for years.

SPOHN: We know how many people are arrested for various kinds of crimes each year from the Uniform Crime Reports, but cases are not tracked through the criminal justice system. And so if you want to know how many cases are presented to prosecutors and in what proportion of those do the prosecutors file charges, you pretty much have to go to individual prosecutors’ offices and they may or may not provide that information on their websites or in yearly reports that they prepare.  

DELIA: Alex and I were really surprised that we couldn’t find this information ourselves. We were able to obtain some numbers from the courts about charges filed and the number of convictions in any given year. But what those numbers don’t show are percentages or rates. They just show how many things happened in a year.  So we can’t tell you out of the people charged in a year how many were convicted because someone could be charged in 2015 but convicted in 2017. Even the state justice department doesn’t track that. So we decided not to confuse you with numbers that we don't think add up to much.

So the big question is, why isn’t there better data available? Spohn has some theories.

SPOHN: “Well I guess one could be a, you know, a skeptic and say that they don't keep track because they don't want people to know how few cases result in successful prosecutions. I think that prosecutors’ offices are looking to file charges in what is often referred to as a ‘dead bang case.’ That is a case in which the odds of conviction should the case go before a jury are really very high.

DELIA: Spohn is commenting on what she’s seen in her years of studying these cases. And to be fair, none of the cases have been in the Charlotte area. And prosecutor Kristen Northrup says she takes on all sorts of cases, not just the easy ones.

NORTHRUP: We try cases and we accept and prosecute cases all the time that include some inconsistencies. Our job is to determine if we can overcome those inconsistencies and if trauma is the explanation that we can have to help us overcome those inconsistencies, then that would be an appropriate explanation. But regardless of what the explanation is, we still have to be able to overcome that issue to meet our burden of proof.

DELIA: I told you earlier that the courthouse is a place for many things. It’s a place to pay a fine. A place to finalize an adoption. A place to be judged and a place to do the judging if you’re so lucky to make it on a jury.

But it’s not necessarily the place you go to get resolution or closure even if you’re the victim of a violent crime. Partly because, at the end of the day, that’s not what our legal system is really made to do.

TONY SCHEER: It’s well to caution, particularly victims of a violent crime, that there’s a decent chance that at the end of the day the result of the criminal case is not going to be particularly healing.

"It's well to caution, particularly victims of a violent crime, that there's a decent chance that at the end of the day the result of the criminal case is not going to be particularly healing." - attorney Tony Scheer

DELIA: That’s Charlotte attorney Tony Scheer. Scheer has worked both sides of the legal coin. He used to work as a prosecutor in the Mecklenburg District Attorney's office, and now he mainly does defense work in a private practice.

It sounds crass, but the legal system is not designed to make a victim whole, he says. Which I know is counterintuitive to every crime drama you’ve ever seen on TV. But it’s not about the individual, Scheer says. It’s about the collective. The blood of the courthouse. The public.

SCHEER: So it really is designed more for trying to protect society in the future to be sure that we don't have innocent people going to jail, and I would argue that that's the way it should stay. I think that victims’ rights amendments, by the way, they get this a little bit wrong because it's sold people on the idea that the criminal justice system is a personal place for retribution when it is not. And it's not, it's not a well-suited tool for it.

DELIA: Our legal system is set up to let 100 guilty people go, Scheer says, to prevent a single innocent person from being convicted. He calls it a blunt instrument. It’s not a finely sharpened scalpel that can make precise incisions. It’s old and well worn. It can get the job done but in a way that seems crude and harder than it needs to be.

CRYSTAL EMERICK: But having to relive over and over and over your trauma, and to be questioned about the truth of it? That is like being double-traumatized.

DELIA: That’s Crystal Emerick, founder of Brave Step, a group that supports and advocates on behalf of sexual assault survivors and their families.

EMERICK: I think that the big part is we have to ask, ‘What is it we want to get out of this?’ And, ‘is the system going to give us whatever justice we so desire?’

DELIA: Emerick is a two-time sexual assault survivor. She didn’t pursue legal options in either incident. But now she does work with survivors, many of whom have tried to go through the legal system. Some successfully, others not.

Regardless of whether a survivor pursues legal options and whether the survivor gets the outcome desired, Emerick says the most important thing is taking care of yourself.

EMERICK: Of course I am a proponent of, you know, fighting the good fight. And if part of her healing journey is to keep going down the legal system and, you know, I think have at it. But there is risk with that, and I would hope that Linda's being coached in some capacity of protecting herself in ways, and working on self-care and if she's coupled with a therapist, that the therapist is walking her through the process because it's – I mean even, you know, after 10 years of therapy and now doing this work there's still days that it is hard for me to hear the stories and sometimes to unearth some of the things that I've locked in a closet. It’s a never-ending journey. Once it’s happened to you, forever this is part of your story and you have a choice on how that story either controls your life or guides your life.   

"Burden is a perfect word for what we go through. Burden of proof, because most survivors don't have proof. And even if they do, as in Linda's case, is it enough?" - Crystal Emerick

DELIA: After a decade of therapy, Emerick is able to do the latter. Her winding road is no longer a dark, desolate place. Well-paved streets have replaced sharp turns. Green grass and flowers have covered the dead ends and tricky terrain.

EMERICK: I think my winding road has changed now, I think, because of this work with Brave Step. What I found after my conclusion of my therapy was so many people just like me were lost and I felt such a pull. How can I help them? How can I be a hand? How can I say it's difficult but there is hope at the end of the path? So I think I'm on a winding road still, but it's a different one. It's more of how do I come alongside someone?

DELIA: Because along with the burden of proof there is another burden. It's the burden a survivor feels.

EMERICK: Burden is a perfect word for what we go through. Burden of proof because most survivors don't have proof. And even if they do, as in Linda's case, is it enough? So burden is in that context super powerful but then forever. Forevermore it's a burden until you turn it into a gift.

DELIA: But that’s not quite where Linda is. Linda is still working through the weight of the burden she feels. She’s burdened by the things she remembers from her assault and the things she doesn’t. She’s burdened by the stress on her family from this whole ordeal.

She burdened by, well, everything. And even though it’s a burden she carries with her, telling her story will hopefully, when she looks back on this whole thing,  help lift some of that weight. Telling her story did bring about change. From a new policy in the CMPD crime lab to effecting police training policies. Those things may not have happened without Linda’s voice, but she’s not quite in a place to be so optimistic. In fact, she told us she was scared about this episode airing. She was worried that she was going to let down listeners.

LINDA: I hope that. I hope that the outcome of what happened in my circumstance doesn’t let everybody down or doesn’t make everyone feel like it’s impossible to find justice. Even though I feel like right now that it’s almost impossible to find justice as a sexual assault survivor. But again that has to change. And I’ll fight in whatever way I can to help make that change. I don’t think I’ll ever be able to let it go.

DELIA: Some days are still extremely dark for Linda. She faces roadblocks and dead ends. On those days, it’s like she’s paralyzed.

LINDA: I, I just, I  don't know what to do or think. You know, you’ve got people saying ‘you’ve got to move past it.’ And this and that. I don't know that I can, Sarah. It’s not something you just move past in life.

DELIA: But other days are better. Some days, Linda can walk. She’s gotten into a routine of walking about a mile on her treadmill in her home. Putting one foot in front of the other gives her a kind of solace she’s had a hard time finding.

LINDA: I’ve been sticking to it, you know, and it's made a big difference. I know that might sound silly to some people but it’s made a huge difference mentally and physically.

DELIA: Even still, she has to be careful on this controlled road of her treadmill. She says if her kids walk into the room she can get easily startled and panicked. Her first thought is that it’s the man who she says attacked her.

On the days where she is able to calmly, carefully place one foot in front of the other, on the days where she’s able to breathe and forget about her assault for maybe one or two minutes, it’s those days she’s able to think about not moving on from her assault, but moving forward. It’s on those days she can live with the burden that comes from speaking her truth that comes with what she says.

She Says is written, produced, and reported by me, Sarah Delia. Alex Olgin is our reporter, and she co-wrote and co-reported this episode. Our editor is Greg Collard. Joni Deutsch is manager of podcasts at WFAE. Music is by Pachyderm Music Lab. Keep the conversation going on Twitter using the hashtag #WFAESheSays. You can tweet at me directly @SarahWFAE. You can find out more information about the podcast at WFAE.org/shesays.  

Thanks for listening.

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