The Devil You Know

Jeri Elster glances over the top of her glasses from time to time as she plows through her prepared speech. She looks nervous and fragile. Two weeks after completing chemotherapy and radiation treatments for breast cancer, her skin is parched and drawn, her head covered by more fuzz than hair. While her prognosis for a full recovery looks good, it’s too early to declare her a cancer survivor. Besides, she’s not here to talk about cancer.

The mission she took on in the wake of an epic injustice can’t wait. Elster has come to Sacramento to tell a group of politicians about surviving another attack on her body--the kind authorities say happens every two minutes in America.

“My name is Jeri Elster. I am a rape survivor,” she tells the California Assembly’s Public Safety Committee. “I will never forget his face or his voice--the memories continue to haunt me. I will live with this trauma the rest of my life. I am here to put a human face on the ramifications of the current laws governing sexual assault.”

The date was Feb. 29, 2000, the first time Elster had spoken so publicly about the attack. She hasn’t stopped talking since.

Motion-detector lights spring on as soon as i step onto the sidewalk in front of Elster’s neat Westchester home. As I approach the door, two dogs are at the front window, barking loudly. The sound of the doorbell kicks them into high gear. Elster shuffles to the door, calling to them to settle down as she flips the lock. Frankie and Johnny ignore her. After I’m well-sniffed, Elster herds them out into the backyard, then turns and smiles at me.

Her hair, short now by design, is tinged with gray. Elster has just completed the 60-mile route from Santa Barbara to Malibu as part of the Avon 3-Day Breast Cancer Walk, and it still hurts to move. “I’ve got blisters on top of my blisters,” she says as she moves to a dining room chair and sits. Nevertheless, her blue eyes light up as she offers something to drink.

This is the house she fell in love with and managed to buy when the real estate market took a dive in 1991. This is where she ran her home-based word processing and graphic arts business. This is also where a brutal attack transformed her life. Thus the lights, the dogs, the special windows and the solid wood doors.

On Aug. 27, 1992, Elster fell asleep face down in bed while watching TV at 1 a.m. She never heard the man cut the screen on her back window. She slept soundly while he rummaged through her laundry on the back porch. When she woke with a start, she was unable to move her arms or legs. He was sitting on top of her, tying her hands behind her back. She looked over her right shoulder and got a glimpse of the outline of his head.

“If you do that again, I’ll kill you,” he told her before wrapping her head in a blanket. She couldn’t struggle or scream as he blindfolded her and proceeded to cut off her clothes with a pair of scissors he’d taken from her kitchen drawer. For the next 2 1/2 hours, he raped and sodomized her, stopping periodically to vandalize and rob her while she lay helpless and blind.

“I tried to remember everything I could about him--the sound of his voice, the outline of his head. Just in case I lived. But by the time it was over, I was praying to die.” Finally, when the house went quiet and she suspected he was gone, Elster rolled to the edge of the bed, dropped to the floor on her knees and crawled into the bathroom to get her cuticle scissors to cut the restraints. Bleeding and bruised, she called 911. Police took her to the rape crisis center at Santa Monica Hospital.

Later she recounted to police the attack--every dehumanizing detail. Her house was a crime scene. Officers dusted for fingerprints, collected her clothes, the bedding and anything else they considered evidence. When they left, Elster was alone to clean up the mess that had been made in her home and her life.

This is a story the 49-year-old Elster now has told dozens of times to lawmakers, rape support groups, radio, TV and newspaper reporters--to anyone willing to hear it. Recounting it, she seems almost removed, as if it happened to someone else. But the brief flash of pain in her blue eyes makes clear that it still hurts.

The story of a rape isn’t unusual, but Elster’s has a twist: She knows the name of the man of who raped her. So do law enforcement authorities. Yet, California law at the time his name was discovered ensured that Elster’s attacker will never be prosecuted for what he did to her. Changing that law gave Elster a new mission in life.

long after that 1992 attack, elster learned that the process of finding a rapist leaves much to be desired. If there is no suspect, police take a report and file the matter as a “pending” case. Instead of being analyzed for a DNA match in a criminal database, evidence collected for a rape kit is tagged, numbered and shelved along with thousands of others in an evidence cooler at the Los Angeles Police Department crime lab.

All 50 states collect DNA samples from convicted sex offenders. Some collect it from all violent convicts. The FBI is coordinating a national databank of DNA samples to help link perpetrators to unsolved crimes all over the country. But until recently there has been no money to analyze rape-kit evidence until a suspect is identified. According to a September 1999 survey conducted for the Attorney General’s National Commission on the Future of DNA Evidence, an estimated 150,000 rape kits are awaiting analysis in the U.S. By now that number is estimated to be at least 180,000.

At the LAPD crime lab, perishable evidence for every pending case is housed in a freezer the size of an industrial meat locker. Just outside on the loading dock, five refrigerated mobile trailers are also filled with frozen evidence. Each evidence kit represents an unsolved crime, a life on hold. The approximately 2,600 rape kits on the LAPD shelves--among the estimated 20,000 untested kits in California--are stored in envelopes that resemble giant packets of processed photos. The majority of them haven’t been touched since the evidence in them was collected; Elster’s rape kit sat untested for seven years.

According to the Bureau of Justice Statistics’ National Crime Survey, someone in America is sexually assaulted every two minutes. However, 72% of sexual assaults are never reported. Of those that are, there’s only a 16.3% chance the rapist will be imprisoned. Nineteen of 20 rapists will never serve time. As the months and years wore on, Elster began to believe her attacker would be one of the lucky ones.

Elster, born and raised in Southern California, had encountered her share of demons long before the stranger crept into her bedroom. She had married briefly during her 20s and then had a string of disappointing relationships. She had spent nearly 20 years drinking hard and smoking dope. Then, on May 18, 1988, four years before the attack, she attended a 12-step meeting and declared herself an alcoholic. She has been clean and sober since.

After the attack, Elster says she became increasingly needy and insecure, and it wasn’t long before the relationship she was in fell apart. She became depressed and suicidal and was eventually committed to an inpatient psychiatric facility for 30 days. Through it all, Elster resisted her old addictions.

“It occurred to me to drink again, but that would be giving power back to the rapist, and I couldn’t do that,” she says. “He had ruined my life in so many areas, I couldn’t drink over it. This became even more of a reason to stay sober.”

With counseling and support from friends, Elster accepted what had happened to her while choosing not to give up the search for her attacker. For a time, she called the police almost every month. Each time the answer was the same: “No leads.” Sometimes she even got an impatient, “Do you know how many rape cases we have?”

In 1995, a friend sent her a newspaper article about a man recently convicted of several rapes in the South Bay area. His method was chillingly similar to that of her attacker’s. Elster sent the article to the detective in charge of her case and asked him to investigate. He never responded.

“Finally I decided I needed to heal and separate myself from it, so I gave up on it for years and went to work putting my life back together. I went to work full time again--the first time since the attack.”

Elster joined the Rainbow Sisters Project, a multiracial support group formed by Santa Monica rape survivor and filmmaker Karen Pomer. In addition to discovering women who understood--they’d been there--she also learned that, with the exception of murder, all crimes carried a statute of limitations, a defined date beyond which a crime can no longer be prosecuted. Worried that the statute on her case was running out, Elster made one more effort to jump start the investigation in April 1999.

Det. Richard Guzman had been on the LAPD force for six years when he was assigned to the sex crimes division. He’d been there two weeks--not long enough to be annoyed by a victim’s persistence--when Elster called to check the status of her case.

“This was my first assignment to sex crimes,” Guzman recalls. “Jeri asked about the status, but there was no paperwork at the station. The case was in storage, and I ordered it shipped here. She told me about a newspaper article where a man had been convicted of rape in Hawthorne. When I ran his criminal history and found he had a blood sample on file, I called the crime lab and asked them to analyze the rape kit.”

Because of limited resources, the crime lab usually screens rape kits only at the request of a detective or a district attorney. LAPD criminalist Elizabeth Swanson screened the kit and Elster’s clothing and found thousands of specimens, a crucial first step because nearly 50% of rape kits contain no evidence. Before proceeding with a DNA analysis, though, the lab needed to make sure the statute had not expired.

“Running each sample [for DNA] costs around $900, and you need [to run] the victim’s current sample, a sample from the rape kit, plus a new sample from the [suspected] attacker,” says Swanson. “We didn’t want to go through the trouble and expense for a case that could not be adjudicated.”

Guzman asked around the squad room about the statute of limitations on rape cases. He got varying answers--six, seven and eight years. After a deputy district attorney assured him that the rape statute was eight years, the investigation inched forward.

“The delays in getting the scientific tests done were frustrating because the resources were limited,” he says. “When I requested the first DNA analysis, [bureaucratic delays] took a few months. Everybody was frustrated by the process, even the people who work the scientific division.”

The delays are designed, in part, to ensure fairness. The specimen from the rape kit was compared to everyone’s in the offender databank--70,000 people at the time--not just the suspect’s. They got a match--but not with the man described in the newspaper.

A report issued by Maryland-based Cellmark Diagnostics, one of the country’s top private DNA labs, matched the DNA from Elster’s attacker with a DNA sample on file from Reginald Darrell Miller, a 50-year-old L.A.-area man with a criminal record dating back to the mid-1960s. Several weeks after the attack on Elster, he had been arrested for committing a rape and robbery. Miller had been convicted and was serving a 15-year sentence at the state Correctional Training Facility at Soledad, near Salinas.

To confirm the match, Guzman obtained a court order to draw Miller’s blood to make sure it matched the original sample on file. In late November 1999, another Cellmark test confirmed that Jeri Elster’s rape kit was loaded with Miller’s DNA.

Six months before that revelation, elster had been diagnosed

with breast cancer and spent the summer and fall undergoing treatment. When she and Guzman were summoned to the D.A.’s office Dec. 10 that year, she dragged herself out of bed. “I thought we were going to discuss trial strategy, but the [prosecutor] told me she had good news and bad news,” Elster says.

The good news was that Elster wouldn’t have to go through the trauma of a trial. The bad news was that they couldn’t prosecute Miller despite the DNA evidence. The statute of limitations for rape in California was six years, not eight. The deputy district attorney who initially had assured Guzman it was OK to proceed with Elster’s case admitted that she had erred. Miller will be released from prison in 2007, the prosecutor told Elster, and there wasn’t anything they could do about it.

“I couldn’t believe it. I was furious,” Elster says. “Do you know how stupid that is--a D.A. not knowing the statute of limitations on rape?”

Elster’s case illustrates how effective use of DNA evidence can revolutionize the way crime is fought. Not since fingerprinting has law enforcement had such a powerful ally. DNA evidence has also become the mother of all defense weapons, exonerating dozens of inmates in post-conviction cases across the country. Unfortunately, because of chronic shortages of funding and manpower, law enforcement officials in virtually every state are way behind in efforts to analyze those DNA samples.

In August, U.S. Atty. Gen. John Ashcroft announced that the Justice Department would give nearly $30 million to states to ease the backlog of criminal DNA testing. However, Rep. Carolyn Maloney (D-N.Y.) and Sen. Charles Schumer (D-N.Y.) want more.

Maloney has announced plans to introduce legislation to standardize evidence kits for sexual assaults and ensure that forensic labs complete all DNA testing within 10 days of receipt. Her bill also would spend $150 million to train more sexual-assault nurse examiners nationwide and thus reduce the number of unsolved rape cases pending. Schumer’s bill would expand sexual assault forensic examiner programs nationwide.

Perhaps the greatest irony is that the mix-up in the District Attorney’s office proved to be a good thing. Had the deputy D.A. given Guzman the correct information about the statute of limitations, Elster’s file would have remained in the archives and she still wouldn’t know the identity of her attacker.

“It was all divinely ordained,” she says. “I realized that these screw-ups had to lead to something. It was like somebody pushed a button inside me, and I couldn’t let go.” In the meantime, Elster has been pursuing her own remedy. It was too late to change the outcome of her case, but she wanted to make sure no one else would suffer the same fate.

When Elster told fellow rape survivor Karen Pomer that she wanted to change the law, Pomer asked a simple question: “Would you go public?” Suddenly, the shame that had kept Elster quiet about the attack vanished.

Lou Correa (D-Santa Ana) had been in the California assembly for only a few months, but already he had developed an interest in how DNA technology was changing criminal justice. When an Orange County district attorney brought the backlog of samples and the six-year statute of limitations on rape to Correa’s attention, he began trying to create legislation to address the problem.

Statute of limitations originally were intended to make sure that accused criminals were prosecuted fairly and not convicted by faulty memories or deteriorated evidence. Correa felt that DNA has no memory and, therefore, many of the old arguments for a statute of limitations no longer seemed valid.

Even though the DNA forensic databank mandated by the California Assembly contains about 200,000 offender specimens, the Legislature had failed to appropriate money to analyze them. Correa struggled to come up with a bill that would address the problem, get around the statute and preserve the necessary safeguards.

Elster signed on for the fight. She anticipated a long, protracted battle, but like the advances in technology, the changes came with lightning speed. Elster told her story before the Assembly Public Safety Committee on Feb. 29, 2000. The following June, she testified before the Senate Public Safety Committee.

Gov. Gray Davis signed the Correa bill into law two months after that, and it took effect last January. It extends the statute of limitations to 10 years and effectively eliminates it in rape cases where DNA evidence can be used to identify the perpetrator. The state budget in 2000 also allocated millions to help process the mountains of backlogged cases, giving new life to those 20,000 rape kits in evidence freezers across the state. In August, Inglewood police announced the first “cold hit” from that effort and linked a registered sex offender to the rape of a 14-year-old girl that had gone unsolved for six years.

“Jeri was very instrumental in helping us pass this legislation,” Correa says. “Lou Correa making a statement about rape is one thing. Jeri Elster standing up and saying, ‘I got raped’ is another. It was tremendously powerful, and nobody was left unconvinced.”

Chris Leo, Correa’s chief of staff, says Elster’s testimony was so effective that Assembly members had tears in their eyes. “Without her, it never would have moved forward as quickly as it did. Jeri put a face on the issue.”

Other states are revising laws involving sexual assaults. Florida, Michigan and Nevada have dropped the statute of limitations on rape cases involving DNA evidence. In Arizona, Hawaii, Pennsylvania, New Jersey, New York and Wisconsin, lawmakers are now reexamining similar statutes.

Those efforts are among many others in which legislators are trying to bring laws into line with new technologies.

During last year’s Super Bowl, for example, Tampa Bay police conducted a high-tech surveillance experiment by scanning the faces of the game’s 72,000 attendees and checking them against a database of criminals. Concerned privacy activists dubbed the experiment a “computerized police lineup.”

The U.S. Supreme Court recently ruled that police violated Danny Lee Kyllo’s 4th Amendment rights when they used heat-detection equipment to find a hothouse marijuana operation in Kyllo’s Oregon home.

Hundreds of police departments also are using the “PAS III Sniffer” (Passive Alcohol Sensor), a tiny battery-powered alcohol detector, during traffic stops. An officer shines a flashlight into a car and the device sucks in the motorist’s breath to check for alcohol. The motorist never has a clue.

Challenges to the way new technologies are being used are making their way through the courts, but some feel the law will forever be one step behind science. And people such as Jeri Elster may continue to fall into that gap.

Elster has every right to be bitter. In the past 15 years, she has battled alcohol, drugs, rape, cancer and a legal system that let her down. Through it all, she has remained kind and warm, a glass-half-full survivor who “did not want to define myself forever as a victim. Generally, my healing has come from taking action, sharing with others and using my story to turn my worst liability into my best asset.”

Still, Elster is gearing up for another fight. She intends to do everything she can to keep Reginald Miller locked up beyond 2007, using the state’s Sexually Violent Predator Act.

When he finishes his sentence, Elster plans to testify that Miller is a serial rapist who should be confined to the state hospital at Atascadero, the maximum-security mental health facility now used as a rehabilitation center for convicted rapists and child molesters.

“If that happens, justice will be served,” Elster says. “And that’s all I ever really wanted.”