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Josh Kaul’s Rape Kit Hoax: Only .1% Resulted in Conviction, Some Were Freed on Low Bail

Only .1% of the thousands of “backlogged” rape kits tested in Wisconsin have resulted in a conviction. Yet Josh Kaul is still prioritizing the issue over fixing crime lab delays.

Almost no one has been convicted in Wisconsin as a result of the monumental effort to clear up old rape kits, yet Attorney General Josh Kaul continues to prioritize the issue.

Consider:

Only 6 cases have resulted in convictions, Wisconsin Right Now has documented, using the state’s own data. Two of those defendants were already in prison, and some of the cases were filed during Brad Schimel’s tenure.

That’s right. SIX convictions. That’s .1%. When he ran for attorney general, Kaul criticized the low number of convictions.

Many of the rape kit backlog cases that did proceed to court have ended up an absolute mess. Some were tossed on prosecutor’s motions. Far from prioritizing public safety, Kaul’s prosecutor asked for a signature bond in one case and did not request higher bail in another for many months – even after the latter defendant allegedly committed 60 new crimes in 10 different felony cases unrelated to rape kits.

Democrat Kaul, under criticism from his Republican opponent for not prioritizing public safety, has repeatedly tried to resurrect the rape kit backlog issue that he deceptively used to defeat, by a very narrow margin, Republican AG Brad Schimel.

However, Wisconsin Right Now has documented, with a couple of exceptions, this effort has, overall, done little to result in convictions that get rapists off the streets. The rape kit backlog issue was a media and Kaul-generated exaggeration to unfairly take out Schimel. The backlogs existed under multiple previous attorney generals, including Kaul’s own mother, with no hue-and-cry.

This is eerily similar to Kaul’s highly publicized effort to review church sex abuse cases. As of April 2021, that effort produced only one criminal case. Meanwhile, Kaul, who lists almost no law enforcement endorsements, drops the ball in a big way on areas that could have a dramatic effect on public safety, such as clearing up state crime lab delays or filling vacant prosecutor positions.

Under enormous pressure from Kaul and the media, which hammered him on the issue constantly, Schimel managed to test over 4,400 kits for DNA. It was a monumental task.

But it turns out:

  • Two of the five defendants were already in prison serving lengthy sentences in other cases; in one of those cases, the rapist was already serving a 50-year sentence.
  • A third convicted defendant – the one who received the signature bond – got only probation and is now an absconder. That means no one knows where he is.
  • Two cases were filed during Schimel’s tenure.
  • One defendant was given $1,500 cash bail despite allegedly raping a toddler and committed a series of serious new crimes that ended up read-in at sentencing.

In addition:

  • The first case charged in the state resulted in a jury acquittal.
  • Two other Milwaukee cases were dismissed by prosecutors and a third was tossed on a defense motion.
  • We acknowledge that justice was achieved in a couple of severe cases as a result of the backlog testing and that getting more DNA in the system could result in other matches down the road. It’s obviously good those offenders are off the streets, although a couple of the kits were tested well after backlogs were cleared and in one case court records say the kit ended up not being necessary to the prosecution. However, the state’s top law enforcement official needs to effectively balance competing public safety concerns. Delays in other crime lab testing also keep violent criminals on the streets. A DOJ report from 2018 found that clearing the untested rape kit backlog delayed testing in 350 other cases. 

Kaul, desperate to create a public safety record, acts blissfully ignorant of this reality.

“We must ensure that every sexual assault kit in Wisconsin is sent to the state crime labs,” Kaul is still insisting. “…It’s critical for public safety that every sexual assault kit is sent to the Wisconsin State Crime Labs.” That’s the same Wisconsin Crime Lab that, under Kaul’s leadership, is a mess – it’s testing fewer items and taking longer to do so in critical areas impacting public safety.

Kaul has repeatedly tried to generate headlines on the topic, resurrecting an issue that worked for him last time, and the media have been complicit, refusing to examine the broader truth: In Wisconsin, rape kit backlog testing produced few results.

In May, desperate to cover up the fact he lists almost no law enforcement endorsements and has meager prosecution experience, Kaul “announced the launch of Track-Kit, a statewide sexual assault kit (SAK) tracking system.” Last December, he touted legislation to eliminate future backlogs of rape kits.

At the same time, Kaul’s crime lab is taking in fewer cases but delays are greater than Schimel in key areas, including DNA and firearms. In other words, Kaul’s crime lab is a mess. This all comes as his Republican opponent, DA Eric Toney, has accused Kaul of defunding the prosecutorial mission of DOJ while politicizing the office.

There are 9 pending cases.

The rape kit statistics website for Wisconsin is inaccurate; it states there are 7, but we went through the list of cases on that website as well as news releases from Kaul, and documented that there are currently 9.

But there are problems in those cases too:

  • In one pending case, the prosecutor can’t find the nurse who collected the rape kit.
  • In another case, the one where the defendant allegedly committed 60 new crimes, the defendant racked up 18 pretrial supervision violations without Kaul’s prosecutor seeking an increase in bail. The new offenses range from strangulation to domestic violence battery.
  • In three pending cases, the accused rapist was already in jail or prison for other offenses.
  • In another pending case, a defendant entered a plea and was sentenced, but it was withdrawn later on appeal because the state didn’t meet its burden of proof.

If Kaul was honest, he would admit what law enforcement has always known: Rape kits were not tested for a variety of good reasons. Some of them: Victims did not want to prosecute; the kits were not needed to prove guilt (for example, in cases where the issue was consent not whether sexual intercourse happened); some cases were past the statute of limitations; prosecutors had already deemed the cases too weak to proceed for other reasons; and suspects were already identified. The media implication that law enforcement was turning its back on the interests of sexual assault survivors is insulting and wrong.

Where did we get this data?  From the state’s own website, the Wisconsin Sexual Assault Kit Initiative.

It reveals that authorities identified approximately 6,300 sexual assault kits around the state, according to that initiative. They didn’t test all of them. A fairly large number of those were never tested for various understandable reasons, including the victim not consenting or convictions already having resulted in the cases.

Here’s the specific tale of the tape.

Dismissed on prosecutor’s or defense motion:

Two 2019 cases filed in Milwaukee.

The defendants are not immediately clear because dismissed cases are not on CCAP.

Elroy Jamal Wilks was charged with 2nd Degree Sexual Assault/Use of Force. The complaint was filed in 2019 when Kaul was AG. He was given a $10,000 signature bond. A Milwaukee County assistant DA appeared in court. After multiple delays in the backlogged Milwaukee County court system, the case was set for a September 2022 jury trial. However, it was dismissed on a defense motion when the witness did not show up.

Sealed by the court

A pending case out of Brown County

Found not guilty at trial

In a Winnebago case that was filed in 2018, the defendant, Aaron J. Heiden, was found not guilty at trial.  He met the accuser in a bar, and she said they engaged in rough sex.

Convictions

1. Jason A. Smith was convicted in 2020 of second-degree sexual assault of a child. He received 25 years in state prison. The complaint was filed in 2018 when Schimel was still AG. However, Smith was already incarcerated when he was charged. He was serving a 50-year sentence. He is 45-years-old, and wouldn’t have gotten out until 2055 anyway. It’s a horrific case and obviously it may have helped the survivor to know her perpetrator was identified and off the streets, but the conviction did not keep Smith off the streets, as he was already behind bars.

2. Leroy R. Whittenberger. He was convicted at jury trial of three counts of second-degree sexual assault and acquitted of one. He was given $5,000 cash bond later amended to $2,500. He got 25 years in prison with 15 years extended supervision. The case was filed in 2018 when Schimel was AG. He raped a 17-year-old girl in 2012 and is a repeat sex offender.

3. Brandon A. Darnick. He was convicted of first-degree sexual assault of a child in Oneida County. The case was filed when Schimel was AG. He was given $1,500 cash bond. He sexually assaulted a 2-year-old boy. He was charged with multiple crimes while out on bail – battery (domestic violence), disorderly conduct (domestic violence), disorderly conduct (domestic violence), drug possession, drug paraphernalia possession, criminal damage to property, two counts of bail jumping. He was also cited twice for resisting an officer. Those charges were read in at sentencing.

4. Mariono L Weaver. Convicted of two counts of third-degree sexual assault. Two other rape charges were dismissed by the prosecutor. The case was filed in 2019 when Kaul was AG. Cash bond was set at $20,000. He received 10 years in prison and 10 years extended supervision. He was accused of other sex offenses. In this case, he raped a woman he gave a ride. He was already in prison, serving a 12-year sentence for rape that he received in 2015.

5. Joachim M McKnight. He was convicted of third-degree sexual assault after a charge of second-degree sexual assault of a child was dismissed. He received 3.5 years in prison. He received $1,000 cash bond later amended to a $500 signature bond. He had violations of pretrial supervision after that. Bail was raised to $50,000. The then 14-year-old victim had given police false information about the suspect.

6. Hank W. Elmore. Convicted of 3rd Degree Sexual Assault. The case was filed during Kaul. The state requested a signature bond with conditions, says the court records. He failed to appear. A warrant was issued. The signature bond was reinstated. He received probation and a stayed prison sentence. There was a probation review hearing after conviction, but the probation agent decided not to revoke his probation but gave him jail condition time instead. He is listed by the Department of Corrections as an absconder.

Pending cases:

1. Kalvin Ed Vaughn. Kaul touted his charging in 2021. He received $30,000 bail. The next hearing in the case is scheduled for October 2022. The Milwaukee DA’s office is prosecuting the sexual assault of a child case. Vaughn is already serving a 40-year prison sentence in another case from 2016.

2. Kevin J. McDowell, age 37, has been charged with two counts of Second Degree Sexual Assault by Use of Force and one count of Kidnapping. The case is in Dane County. An assistant AG is prosecuting. He was released on $10,000 cash bail. Cash bail was reduced to $2,500 over the objection of the state. The defendant later unsuccessfully asked to reduce bail again, the state objected and it was denied. In February, there was another bail hearing. Court records say on Feb. 4, “State gives argument in opposition to release DE from jail and requests the current amount of cash bail to remain the same. Court makes findings and will lower cash bail from $2,500 to $2,000 with the following additions to bond.” In April, the court removed some bail conditions. In June, a warrant was issued.  There were pretrial supervision violations. In July, bail was raised to $10,000. “State requests a $10,000 cash bond and to forfeit the $2,000 cash bond that was posted,” records say. The court agreed. He was later charged and convicted of felony bail jumping in a new case.

3. Herman Gomez Garza. He was charged in Dane County with second-degree sexual assault of a child in 2021 while Kaul was AG. He received a $500 signature bond. Court records don’t say what prosecutors recommended. There is a plea sentencing hearing set for October 2022.

4. Matthew P. Crockett, in 2021. He has a Racine sexual assault case in which he was given $50,000 bail. There is a jury trial scheduled for April 2023. In a Kenosha sexual assault case, he’s held on $250,000 bail. He is an accused serial rapist who pulled women into cars and raped them as they were walking down the street. DNA from rape kits was matched to him through genealogical testing.

5. Cedric Sonturrius Ball. The complaint was filed during Kaul’s tenure. Bail was $50,000. Sentenced to 6 years in prison. However, the court later, on appeal, allowed Ball to withdraw his plea, finding that, “the State has not met their burden of proof.” Cash bail was set at $50,000 and then reduced to $10,000. There is a jury trial scheduled for November 2022. He is already serving 15 years in prison on another sexual assault case from a 2019 conviction.

6. A case that has been sealed by a judge so the details are not known. It’s a 2019 case out of Brown County. It’s a first-degree sexual assault of a child and child enticement case.

7. Pedro A. Lopez-Corona. He is facing 13 felony and one misdemeanor charge for things like second-degree sexual assault, false imprisonment, exposing his genitals and child enticement. The case was filed by AG Brad Schimel. Bail was set at $75,000. In August 2022, almost four years later, court records state that the prosecutor has “not been able to locate the nurse who did the SANE exam.” The defendant now wants to withdraw his plea. He required an interpreter.

8. Tyrone Donald Bester. He was charged with first-degree sexual assault and kidnapping. A jury trial is scheduled for September 2022. The case was filed while Kaul was AG, although the match came during Schimel’s tenure. The rape was a violent stranger attack. He was already in jail. In 2018, he was sentenced to 10 years in prison for first-degree reckless injury.

9. Terence Blackmon was charged with 2nd Degree Sexual Assault/Use of Force. The complaint was filed in 2019 when Kaul was AG. The state asked for cash bond; he was given a signature bond. Kaul’s office repeatedly requested to extend filing deadlines in the long-languishing case.

For unclear reasons, documents were sealed in the case multiple times. From October 2020 through April 2022, there were at least 18 Justice Point violations by Blackmon, court records show (that’s pre-trial supervision conditions). In one case, court records note: “High Severity Violation Report.” Court records note, “Court finds Sexual Assault Kit Investigation (SAKI) is not necessary to this case.” A jury trial was postponed multiple times, motions were filed, and Blackmon’s attorney withdrew. The jury trial is not scheduled now until February 2023. The court hasn’t been able to find Blackmon an attorney.

The judge gave Blackmon a signature bond in July 2019. It wasn’t until August 2022 that the state requested amended bond, according to the court records on CCAP.

Since that charge, Blackmon has faced MULTIPLE charges of bail jumping. They are these open cases:
2022CF000151: 9 counts of bail jumping. He was given a signature bond. There are five violations of pretrial supervision since then. It doesn’t appear that anyone from Kaul’s office appeared on this case.
2022CF000143: 10 counts of bail jumping and 1 count of failing to comply with an officer. He received $100 bond. The Portage County DA’s office appeared on the case. There have been at least 6 pretrial supervision violations in the case.
2022CF000131: 9 counts of bail jumping and 1 count of disorderly conduct (domestic abuse related). He was given $750 cash bail. There are at least 8 pretrial supervision violations in the case, which was handled by the Portage County DA’s office.
2021CF000469: 1 count of battery as a domestic violence repeater, and 8 counts of bail jumping as a domestic violence repeater. The state, represented by the Portage County DA’s office, requested $1,000 cash bond. He was allowed to post $750 cash bond. There was a “Portage County Justice Programs High Severity Violation Report” filed after that point. There have been 12 other pretrial violation reports.
2021CF000351: 6 counts of bail jumping. The state, represented by the Portage County DA’s office, requested $300 cash bail. Bail was set at $150. There have been 11 pretrial supervision violations.
2021CF000274: 1 count of battery as a domestic abuse repeater. 5 counts of bail jumping. He was given a signature bond. It was upped to $1,000 cash. The Portage County DA’s office appeared in the case. 13 violations of pretrial supervision are listed.
2021CF000014: 2 counts of bail jumping. He was given a signature bond. Again, the Portage County DA’s office handled the case. There are 16 violations of pretrial supervision.
2021CF000010: 1 count of disorderly conduct domestic abuse as a repeater, 2 counts of bail jumping. He was given a $1,000 signature bond. There are 17 violations of pretrial supervision. The Portage County DA’s office handled the case.
2021CF000009: 1 count of strangulation and suffocation as a repeater, 1 count of threats to injure, 1 count of domestic violence related battery; two counts bail jumping. He was given a $500 signature bond. There are 17 violations of pretrial supervision listed. The Portage County DA’s office handled the case.
2020CF000013: 1 count of bail jumping. He was given $100 cash bond. There are 23 violations of pretrial supervision listed.

Overall, 4,471 rape kits were tested by November 2019, almost all in Schimel’s tenure. In September 2018, Schimel announced that “evidence related to 4,154 sexual assault cases have been tested” and only five cases still needed testing. Josh Kaul took office a few months later. Private labs received contracts to do the testing.

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