Attorney plans to alert court official about mishandled rape DNA

CINCINNATI (WXIX) - Prominent civil rights attorney Al Gerhardstein said he plans to alert a court-appointed official overseeing an unprecedented audit right now of the Cincinnati Police Department’s DNA-based homicide cases about the investigation into their mishandled rape DNA evidence.

“I’m certainly going to make the special master aware of this and see whether there’s a link,” Gerhardstein tells FOX19 NOW.

“The notion that DNA reports are not properly cataloged, followed up and pursued is not news to the city. I mean, we just went through this on a murder investigation. So the whole thing is, is just shocking to me.”

FOX19 NOW broke the story earlier this week that the Hamilton County Prosecutor’s Office and CPD are investigating a veteran police officer for allegedly shelving rape DNA test results for years, potentially jeopardizing other cases.

Officer Christopher Schroder, who has been with CPD for more than two decades, was assigned to the Personal Crimes Unit from July 2007 until July 2021 when he was transferred to District 1.

Hamilton County Prosecutor Joe Deters said it’s not clear how many cases are involved and his office is reviewing more than 12 years of cases now to see if the officer impacted them.

He said it could impact “hundreds” of cases and they may have to review up to 1,000 to be sure.

Deters concedes there potentially could be rapists on the loose that have never even been contacted and rape victims whose assailants are still free.

“Yes, and that’s what CPD is actively attempting to resolve right now,” Deters said. “We’re reviewing, literally, over a decade of cases right now to see if he affected any of them.”

Hamilton County Coroner Lakshmi Sammarco said Schroder’s name appears in 96 entries in their database, and there were four “hits” with “Combined DNA Index System,” or “CODIS.” That’s the Federal Bureau of Investigation (FBI) computer system.

A “hit” is when a match identifies a possible perpetrator or links to another case.

Types of “hits” include:

• Forensic Hit: DNA profile matches a DNA profile from another SAK/crime scene, but does not identify a known person.
• Offender Hit: DNA profile matches offender DNA and a possible perpetrator is identified. There are two types:
• Cold Hit: possible perpetrator was not known before testing
• Warm Hit: possible perpetrator was known before testing.

Cincinnati Police Chief Eliot Isaac said in a statement Wednesday night they believe the officer’s actions are so “egregious,” they are seeking criminal prosecution.

Cincinnati police discovered the problem in June when an interdepartmental audit was conducted after a change in leadership at CIS.

“As soon as the department uncovered this distressing information, swift action was taken. We are actively working through all the cases that were assigned to Officer Schroder and our priority is bringing justice to the victims he impacted by failing to do his job as an investigator with the Cincinnati Police Department,” police said in a statement earlier this week.

“A comprehensive review of all the cases assigned to Officer Schroder since being assigned to the Personal Crimes Squad has been conducted. Any case that requires action has been prioritized and reassigned. Schroder’s police powers were suspended in August of 2021 and he is currently suspended with pay pending the outcome of this investigation.

Officer Schroder’s attorney has repeatedly stressed to FOX19 NOW this only involves three cases: “This is not the crime of the century.

“We’re talking about three cases. Three,” Mike Allen said. “I mean, it’s important, but it’s not hundreds. It’s not 1000s. That’s ridiculous.”

This will put Officer Schroder on Hamilton County’s “Brady List.” A Supreme Court ruling requires prosecutors to seek and disclose evidence to defense attorneys and the accused that is material to his or her guilt or punishment.

This includes evidence about their untruthfulness; certain prior criminal convictions and evidence of bias; excessive use of force.

Deters said he suspects some cases may have a statute of limitations problem if they need to go back and retry cases involving Officer Schroder.

Gerhardstein says he’s troubled by all this in light of the audit of DNA evidence in CPD’s Homicide Unit that he and his former law partner, Jennifer Branch, along with the Innocence Project, secured in a landmark settlement with the city last year.

The city of Cincinnati was failing to properly catalog and follow up on DNA reports and murder investigations, according to Gerhardstein. That was revealed in a homicide case against 26-year-old Joshua Maxton, who was arrested for the murder of an 18-year-old woman in North Avondale.

Maxton was charged with murder and jailed for a year before trial. He maintained his innocence, turned down plea offers, and was unanimously acquitted by a jury in June 2016.

During Maxton’s trial, his defense attorneys learned CPD had been notified seven months earlier, while Maxton was in jail, that key DNA evidence found at the crime scene yielded a DNA databank “hit” on an alternate suspect, Dante Foggie.

Now, the special master is investigating how well those murder investigations were done, whether the DNA reports were properly cataloged, and whether there are additional arrests that should be made in those cases, and it covers the year 2011 to 2018.

Gerhardstein says he has “a zillion questions” about issues with CPD rape DNA evidence.

“I couldn’t believe that this type of failure to do basic investigation could go undetected for such a long period of time,” he said. “And I am truly hopeful that they get to the bottom of this quickly that these cases get thoroughly investigated, and that these victims get justice.

“The notion that DNA reports are not properly catalog followed up and pursued is not news to the city. I mean, we just went through this on a murder investigation. So the whole thing is just shocking to me.”

Gerhardstein is skeptical only Officer Schroder is to blame.

“Well, you know, I have trouble seeing this as a single failure. I mean, these cases should be investigated as a team, you don’t do DNA work alone. You send DNA requests out and samples out to labs, labs and reports back, there should be a spreadsheet on every case, that details when you’ve sent samples out, when reports come back, what you’ve done with the reports, how you teamed it, so that you need to get the prosecutor engaged, the victim engaged, you’re using corroborating evidence? I mean, you don’t do that alone. You do that as a group.

“And where were all the other people? Where the supervisors. Where’s the spreadsheet that tells us that these cases were languishing for over a decade?”

Meanwhile, a plea deal for Officer Schroder apparently fell apart this week.

Allen has insisted a plea deal was reached weeks ago with Assistant Prosecutor Bill Anderson, who told Allen the deal had Deters’ approval.

Officer Schroder would resign from the police department and plead guilty to a misdemeanor of the second degree dereliction of duty, Allen said.

“It’s going to go through because a plea deal is a contract, and I’m not going to tolerate the contract being reneged on,” he told FOX19 NOW on Wednesday. “It’s a misdemeanor of the second degree, 90 days is the maximum. I think $750 in cost.”

Allen is a legal analyst for FOX19 NOW, but not in this case.

But in a statement Thursday, the prosecutor’s office spokeswoman said Deters won’t approve the deal.

“During the investigation, there were discussions at the staff level regarding a possible resolution. Any resolution would be required to be approved by Mr. Deters. That resolution has not - and will not - be approved by Mr. Deters,” wrote Amy Clausing, spokeswoman for the prosecutor’s office.

Allen says Deters is lying.

“I fully intend to do what I have to do to enforce that plea deal,” he said. “If I have to put people under oath, I will put them under oath.”

Gerhardstein calls the plea arrangement “a very minimal response to what must be a huge failure of investigation and organization here. It seems like a rush to effort to say we fix something. And there’s more to it than that.”

Ben Glassman, the former U.S. Attorney for the Southern District of Ohio, tells FOX19 NOW it’s hard to hard to reconcile Deters’ comment that they’re reviewing a decade of cases with the idea that there’s already a plea deal.

“Second, though, I don’t necessarily see anything in the linked plea agreement that specifies, as attorney Mike Allen says, that there are only three cases involved. Seems like that’s his position, but not sure where I see any agreement to that from the prosecutor’s office.

“Finally, I’m thrilled that CPD uncovered this itself via its own audit and that should be commended. But it does beg the question as to how this could’ve been going on for ‘years’ and no one noticed?

“What was the supervisor doing? Were checks in place that were evaded? How is the system being fixed? This isn’t to say that others may have criminal liability, but for the sake of effective law enforcement and public confidence, I’d want to know more about what went wrong systematically and how it’s being fixed.”

Gerhardstein agrees, saying he hopes they “put the brakes on until we know what the scope of the problem is, you know, if the city is improperly placing all the blame on one person and saying we had one bad apple, and now we’ve gotten rid of that bad apple.”

“I’m just here to say that this is a systemic issue and has to be no one works alone on these cases. And DNA is not investigated alone. So there’s more to it than just that one officer. And I wouldn’t finish that officer’s case until we have a thorough investigation of everyone involved in this.”

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