It was time-consuming for prosecutors to present a sexual assault case to a grand jury in the 1970s—an era before DNA and before the passage of rape reform laws. New prosecutors in Manhattan’s District Attorney’s office were evaluated on how many cases they could present to grand juries in a day, and the 11 men found a way to slough off the sexual assault cases on the lone female in their entering class of lawyers, Linda Fairstein. While her male colleagues burned through as many as 12 cases a day, thanks to police testimony, Fairstein dealt with more vulnerable witnesses. She explained to rape victims in a separate interview what the laws were, decided whether a case could go forward, and prepared witnesses to testify. She was lucky to present one sexual assault case before the lunch break.
“It was entirely backhanded. Nobody meant for any one person to begin to do the work, and it fascinated me. It was a challenge every time,” said Fairstein ’72, now a best-selling suspense author and a leading sex crimes expert who returned to the Law School March 15. “The saddest part about it was the state of the law.”
Although she described herself as a low-profile law student, “criminal law grabbed me from the moment I got here until graduation.” She talked to her criminal law professor, Law School Dean Monrad Paulsen, about entering public service. He called then-Manhattan District Attorney Frank Hogan to tell him about a bright student he should consider for one of his slots. Hogan “had one major flaw, which was he didn’t think women in the workplace, in his workplace, were appropriate. He didn’t think women should be handling criminal trial work,” Fairstein said. Of the 170 lawyers on his staff, seven were women, and none had tried a murder case in New York.
“It was really only with the support of the dean that I was able to get my toe in that door,” Fairstein explained. Hogan told her during her interview, “this work is too tawdry for a woman of your educational background,” but she was hired.
Prosecuting rape crimes during the 1970s was a far cry from the experience of today’s prosecutors, explained Fairstein. “The laws read in most states that women were incompetent to testify about sexual assault unless there was independent evidence of the crime,” she said. Such evidence came in three forms, including an outside eyewitness to identify the rapist and evidence of the sexual nature of the assault. “In those days there was not a hospital in America that had a protocol to deal with the examination of victims of sexual assault. There were no evidence collection kits.”
Third, the fact that force was used had to be corroborated. “If that gun or knife was not recovered…then she was deemed by the law to have consented to the act of intercourse at gunpoint, because there was no proof that there had been force,” Fairstein explained. She found in her own research for her nonfiction book on sex crimes that while more than 1,000 men were arrested for sexual assault in 1970 in New York City, only 18 were convicted.
If a woman was robbed, she could testify as the only witness to the robbery. If the assailant had raped her after the robbery, she had to have a corroborating witness and had to prove “earnest resistance.” If a gun or knife was not recovered, “she was deemed by the law to have consented.”
New York’s restrictive rape laws didn’t change until the mid-1970s, when the requirement for corroborating eyewitnesses was eliminated. The D.A. office’s Sex Crimes Prosecution Unit was created in 1974, the first such unit in the nation. Fairstein, who began a 25-year run as chief of the unit two years later, said “none of us knew what we were doing. Nobody barely knew … how to investigate these cases and we certainly didn’t know how to prepare for and try the cases.” But the office was “very proactive from the beginning.” Fairstein also became involved in legislative reform and was instrumental in getting New York’s rape shield law passed—limiting defense attorneys’ ability to examine a victim’s past in court.
Her first high-profile case involved a dentist in New York who female patients claimed had molested them while they were sedated. One woman suspected the dentist of rape when she woke up and, still groggy, thought the dentist was kissing her. Police took the report, but believed the dentist’s excuse that anesthesia caused hallucinations. Police finally started investigating by the third complaint.
“We realized that there was literally no way to determine what happened,” she said. They didn’t want to risk another woman being sedated. One victim was brave enough to be wired and confront the dentist, who denied her accusations but offered to meet her with his “bag of tricks.” Enough suspicion was cast on the dentist for Fairstein to apply for an order to perform a “legal burglary”—similar to wiretaps in organized crime cases. They installed a camera above the dentist’s chair the night before a young policewoman was scheduled to see the dentist. Fairstein said the hardest part was finding a New York cop who had a dental problem severe enough to undergo anesthesia. Fairstein and investigators watched the video as the dentist, in his excitement, pulled the wrong tooth (resulting later in a lawsuit against the city), then lifted the woman out of the chair—a dangerous move because the drugs could more readily affect her brain. He began undressing her and groping her when the police broke in and arrested him.
The dentist claimed he was resuscitating his patient, and even waived his right to a jury. The tough female judge didn’t buy it, in her opinion noting that “squeezing the buttocks of a woman was not a known means of resuscitation.” At the time, only the tabloids—who in this case used D.D.S. to mean “dentist desires sex”—reported on sex crimes cases because as one New York Times reporter told her, “I can’t come to the trial because our readers aren’t interested in sexual assault.” Fairstein wanted to change such attitudes.
“Our next biggest battle, in addition to legislative reform, was to try and educate about issues and attitudes related to sexual assault,” she said. Her office worked with the police not only on reform, but speaking to community groups whose members might be jurors one day.
Fairstein’s “three favorite letters of the alphabet”—DNA—appeared on the scene in 1986. The first time she sent evidence to Quantico, it was the only lab in the country performing the test. Six months after submitting the evidence, the lab found saliva on the killer’s jacket that matched the victim’s DNA. After a three-week hearing on the reliability of the test, the judge ruled it inadmissible. From then on, her office used DNA to both identify and exonerate suspects, but couldn’t use it in court until 1989.
“There aren’t words for me to describe enthusiastically enough how DNA has revolutionized the criminal justice system,” Fairstein said. “It is absolutely extraordinary.”
She noted that just two weeks ago serologists working tirelessly on identifying DNA from the 9/11 attacks announced they had identified as many as they could under current procedures. Many of those serologists have flown to Asia to work on tsunami victims as well. “There’s a very different kind of scientific process now used than was used in its infancy, and it will continue to get better,” Fairstein said. “There’s no question that five years out from now … serologists….will be able to identify remains that are that fragmentary.”
She praised DNA for allowing prosecutors to “get cases that don’t belong out of the system.” It also takes the burden from the victim being the only witness to the crime.
Established in 2000, New York’s DNA Databank helped catch a New York serial killer who over eight years murdered young girls aged 13 to 15 living in housing projects. The suspect was one of the last people to see one of the victims alive. After trying to sell a stolen hard drive, police arrested him. On a hunch, Fairstein called the lab to see if they could get DNA from a computer, the only item they might get a warrant for. The technician told her, “get me the mouse.” While drafting the search warrant, the serologist called her back; nevermind, he said—the suspect had asked for coffee, so they could get his DNA from his saliva on the cup. In all, the 28-year-old software designer had killed eight teens and raped four others. Investigators found through a forensic investigation of his computer that he would check Internet reports to see if any witnesses had come forward few hours after the murder, further linking him to his crimes.
Fairstein’s office also formed a cold-case squad that used DNA evidence to re-examine old cases. By 2000, New York had 16,000 evidence collection kits from rape cases that had not been tested backlogged, and then-Mayor Rudy Giuliani found money to outsource the kits to private labs. Starting six months later, they returned at a rate of about 100 a month, and of those, 15 to 20 cases could be resolved. Her successor, Lisa Friel ‘83, told her they recently solved the oldest case yet, from 1972. “That’s really extraordinary, extraordinary stuff,” Fairstein said.
Fairstein was asked to write a nonfiction book on sex crimes, which she completed in 1993, opening a door for her also to write crime novels “that are procedurals following the life of a prosecutor.
“While they’re meant to entertain, they’re also meant to educate,” she said.
Her latest book was partly inspired by the haunting case of a serial rapist linked by DNA to 20 cases in New York. He dropped off the scene in 1995, and by 1999 “we knew that our five-year statute of limitations was about to run. He could come back and there would be no way that we could prosecute him for the earlier crimes.” She read in the New York Times that prosecutors in Milwaukee found a novel way to circumvent the statute of limitations problem in one of their cases: they indicted a rapist’s DNA so he might be prosecuted when caught, in what came to be known as a ‘John Doe’ indictment.
Since then, “we still don’t have our guy. The beauty of
fiction is, my character does a John Doe DNA indictment and actually
gets the rapist,” she said. “It’s one of the nice
ways to get things done that I was not able to get done in real life.”