May 21--To investigators in San Marcos, he was an unidentified strain of DNA, a sequence of numbers and letters swabbed off the skin of his victim in February 2011 and entered into a national FBI database under unsolved case 11-09621.
But not until last month did Buda and Austin police learn his name, officials said, by tracking him down in a separate sexual assault case that led to his arrest.
Through forensic evidence collected in the first incident with what is known as a rape kit, police said a strand of genetic code linked James Robert Montoya, 38, to the crime that occurred more than a year ago.
Such a genetic match, Austin and San Marcos officers said, underscores the significance of testing and cataloging DNA swabs from sexual assault victims. But those success stories are not happening as often as they should, government officials say, because funding to conduct the testing is lacking, causing a backlog of untested kits to pile up in evidence storerooms across the state.
A state law that went into effect in September aims to audit and eventually develop the resources to examine the cache, stipulating that all law enforcement agencies must report untested rape kits to the Texas Department of Public Safety. DPS officials said the department also is collecting only a limited number of kits and processing them through grants.
But not all agencies have submitted their data to DPS. And some law enforcement authorities and forensic experts question the statutory guidelines that outline what sexual assault cases need to be reported, saying they are too broad, do not take into account investigative work and might require them to provide information on untested rape kits that do not need to undergo the costly examination.
Though DPS does not charge law enforcement agencies to evaluate the evidence, the safety department can spend up to $800 on each kit it analyzes, depending on the tests it conducts. At a private lab, the analyses for a box with several items plus a comparison with a suspect profile can run more than $5,000, authorities said. About 100 Texas agencies have reported more than 12,700 untested kits, DPS officials said. Records of an estimated 970 untested kits came from at least 10 police and sheriff departments across Central Texas, including more than 360 reported by the Travis County sheriff's office and 85 by the Williamson County sheriff's office.
The Austin Police Department reported more than 400 untested kits to the state public safety agency, though police officials said none of that evidence needs to be analyzed because an internal review shows they are part of cases where criminal charges likely cannot be pursued and where the DNA profile identified would not be eligible to enter into the Combined DNA Index System, the national FBI database referred to as CODIS.
In some of those cases, for instance, forensic investigators could not isolate the DNA of the unknown assailant or the evidence did not have a direct link to the crime, Austin police officials said.
Other law enforcement agencies said they did not have a repository of information on rape kits. The Hays County sheriff's office, which did not report to DPS, said such samples are tracked by area hospitals.
"We merely transport the sealed kit/box to the Department of Public Safety that we receive from medical personnel after they handle and collect evidence for the kit," Lt. Mark Graves said in response to a Freedom of Information Act request from the American-Statesman.
But some victims' advocates, such as Torie Camp, deputy director at Texas Association Against Sexual Assault, said they support the statewide audit, saying legislators next session can fine-tune the regulations and focus on prioritizing which kits need to be tested.
"When victims have evidence collected off of their bodies, they are doing so with the expectation that something is going to be done with it," Camp said. "For that evidence to go nowhere is a slap in the face to that survivor and what they have been through."
Texas lawmakers said they grappled with many of these issues before passing the state law last legislative session. But in an email, Sen. Wendy Davis, who authored the bill, cited the success of the Fort Worth Police Department, which in seven years of testing its backlogged evidence "had 207 CODIS hits and apprehended five serial rapists -- two of which had no previous criminal history."
"Statistics show that 90 percent of assaults happen by someone the survivor knows,'" wrote Davis, D-Fort Worth. "Law enforcement will sometimes push back about testing these types of kits because 'they don't prove a sexual assault occurred.' The point is they can prove these cases have occurred in multiple locations to multiple victims."
The large number of unexamined rape kits nationwide -- as high as 400,000 by some estimates -- is drawing attention across the country as well. U.S. Sen. John Cornyn, R-Texas, is pushing for support of legislation that he said could help law enforcement agencies tackle such backlogs and generate evidence that could put more offenders in prison. This week, he plans to introduce the Sexual Assault Forensic Evidence Registry Act, which he said would shift federal grant money allocated for meetings and conferences related to DNA testing programs to the research and analysis of untested rape kits, Cornyn staff officials said.
The SAFER Act, which is similar to legislation introduced in the U.S. House the past two years by Rep. Carolyn Maloney, D-N.Y., would create a national registry of sexual assault forensic evidence and redistribute funding under the Debbie Smith Act of 2004, which is named after a sexual assault survivor and provides federal grants for the processing of backlogged DNA samples.
Cornyn's measure would mandate that law enforcement agencies spend 75 percent instead of 40 percent of their allotments -- a total of $117 million in 2012 -- on rape kit analyses instead of on meetings and conferences related to DNA testing programs. Cornyn introduced a similar amendment to the Violence Against Women Act that was recently defeated in the Senate, but the same language calling for the funding shift was written into a version of the act passed by the House.
"For far too long, untested rape kits have been piling up due to limited resources prescribed by antiquated laws, denying justice and compounding the pain for an untold number of victims in cities across Texas and the nation," Cornyn said.
In Austin, the Police Department has been able to process evidence much faster and more cost-efficiently since it established its crime lab in September 2004, and it now has no untested rape kits it considers backlogs, Austin police Lt. Michael Eveleth said. In 2005, two retired police detectives were hired to comb through more than 1,000 closed cases and determined that only 145 rape kits needed to be analyzed; more than half were deemed likely not to have DNA in their kits or to be cases that were unfounded or false reports, while the rest were those the police agency relayed to DPS.
About 550 kits have been analyzed since 2010, according to Austin police records.
A quicker turnaround on results has paid off, Eveleth said. Buda and Austin police said Montoya was arrested April 25 in connection with the sexual assault of a woman who said she was kidnapped and taken to her attacker's Buda home.
When a sample of his DNA was entered into the FBI database, "Bam, we got a hit on an unsolved case," said Commander Penny L. Dunn of the San Marcos Police Department. While still in Travis County Jail, authorities said he was charged May 7 in the sexual assault of another woman on Feb. 8, 2011, after he allegedly offered her a ride when her car broke down along Interstate 35.
"It is extremely important to get these kits tested," Dunn said, "because you just don't know when you are going to get a hit."
Contact Jazmine Ulloa at 445-3763
Copyright 2012 - Austin American-Statesman, Texas
