“You Save as Long as You Have To”

Series: Cold Justice

The Outrage and Promise of Untested DNA From Rape Victims

Almost 50 years ago, a woman showed up in the emergency room of a hospital in Maryland. She said she had been raped. A doctor examined her and wrote a report. Dr. Rudiger Breitenecker can recite the words of the report from memory nearly half a century later: “I examined this woman. She said she was raped. She was.”

Breitenecker, a forensic pathologist, worked at the Greater Baltimore Medical Center, a hospital just outside the Baltimore city limits, and as an expert in courtrooms across the country.

“Worthless,” he remembered thinking when he reviewed the report from another hospital.

Breitenecker had come to America from Austria after World War II, haunted by the wholesale rapes carried out by Russian soldiers as they swept victoriously through Europe.

“Lawless,” he recalled.

And so what he encountered in Baltimore deeply distressed him. Rape victims sat in emergency rooms for up to 10 hours before being treated and examined. When they did get to see a doctor, the exam was rudimentary. There were no standardized rape kits. And no law required that evidence left by the perpetrators be preserved, so it was often destroyed within months by police or hospitals for no better reason than to save space.

“Women were considered more nuisance than victims,” Breitenecker said. “Nothing of value was done.”

Breitenecker decided that would not stand.

He opened the Rape Care Center within the hospital, a unit dedicated to doing better for the traumatized women who wound up there. He trained physicians on how to conduct respectful but meticulous exams and how to preserve the evidence of a possible crime.

Women would be seen within an hour of their arrival. A physician trained by Breitenecker would swab the vagina, vulva, cervix, legs and wherever else there could be physical traces of the attacker. They documented any injuries and took fingernail scrapings. They combed for pubic hair and pulled blood and urine. They put a small amount of saline water inside the vaginal canal to collect the washings into test tubes.

The swabs and tubes were transported to a hospital laboratory where Breitenecker — “Dr. B,” as he was known among colleagues — smeared the contents from the swabs onto thin glass slides, then slid the evidence under a microscope, which he used to check for spermatozoa.

Breitenecker also extracted fluid from the test tube to measure the level of acid phosphatase, which would confirm the existence and approximate timing of the semen release. He then typed the summary and conclusions in a report that would go to the Baltimore County police if they were investigating the case. If the acid phosphatase was markedly elevated, he would write “recent intercourse.” He checked for any sexually transmitted diseases, did a pregnancy test, and recommended medical treatment for the victim.

Looking back, what he did next was effectively create one of the first DNA databases in the country, makeshift as it was.

Breitenecker stuck tiny labels on each of the tubes and slides that included the last two digits of the year, last name of the patient, the pathology department case ID and the number of the slide or tube, added another sticker that said “Greater Baltimore Medical Center,” and recorded every case in a logbook.

He opened a deep freezer and placed the tubes from the vaginal washings inside for preservation. He then opened a room-temperature cabinet, where he placed the microscopic glass slides, also for long-term storage.

“It could be useful one day,” he said of his evidence collection, which grew to include thousands of samples from more than 2,200 cases. “You save as long as you have to.”

The stash of physical evidence from rape cases became an open secret among the local authorities, but it was underused and overlooked, even outright ignored. When Breitenecker retired in 1997, leaving perhaps his life’s most significant work behind at the hospital, relatively few of the thousands of specimens he’d kept had been put to use.

In 2004, Rose Brady, the first woman ever to serve as the head of the Baltimore County Police Department’s special victims unit, heard about Breitenecker’s trove of microscopic slides. Over the next 10 years, with a small but dedicated team of detectives, she obtained subpoenas for 158 sexual assault kits and scoured the police property room for any remaining forensic evidence from cold cases. Police then developed 101 DNA profiles, generating 84 hits in the FBI’s DNA database.

Serial rapists might have thought they had gotten away with their crimes, assaults committed from 1978 to 2004. Then Brady’s team showed up and put them in handcuffs. They made 62 arrests and got 49 convictions, according to arrest records and court files obtained by ProPublica. Several men were arrested multiple times for different cases.

Survivors finally got justice. Prosecutors celebrated clearing career criminals from the streets. Police from across the country called Baltimore County asking how they did it. They knew evidence from around that time that had been put in police storage rooms is typically long gone.

Brady would ask them: “Do you have a Dr. Breitenecker?”

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Rudiger Breitenecker was born in Vienna, the son of a prominent professor and medical examiner at the Center for Forensic Medicine at the University of Vienna. During World War II, Vienna became dangerous for a family. And so Breitenecker, barely 13, his mother and four younger siblings, including an infant brother, fled to the countryside, in search of adequate food and safety. His father stayed behind.

The family moved into a schoolhouse in a small village and painted a red cross on the outside to make it look like a medical facility. He and his younger sister worked for local farmers in the vineyards, picking grapes in exchange for eggs, milk and bread.

As the tide of the war turned against Germany, Russian troops poured into Vienna and across Austria. They drove out the Nazis, but there would be brutal consequences for thousands of Austrians, especially women, who would become the targets of revenge.

Breitenecker called the Red Army soldiers “animals” who “stole everything they could carry and raped everybody they could get their hands on.”

When the first wave of Russians reached his village, Breitenecker said, his mother, sister and young nursemaid ran to hide in a neighbor’s hay barn for days. They eventually made it back to the schoolhouse, but a soldier soon appeared at their door.

His mother ordered Rudiger, her oldest child, to run for help. Without many options, he sprinted to the nearest Russian outpost in the long-shot hope of finding a sympathetic soldier.

“I think I would have won an Olympic game because I ran so fast,” he said.

Breitenecker found a lieutenant in command who listened to him plead to spare his family. He said the lieutenant returned to the schoolhouse with him and slapped “the hell” out of the man, who had by then grabbed hold of the nurse.

“The guy went to his knees and ran off,” he said.

After the war, Breitenecker returned to Vienna and to school. His father had developed a specialty in the emerging field of forensic science and would become head of the center that describes itself as the “oldest institution for forensic medicine in the world.”

The conversations at the Breitenecker dinner table were often about developments in science and their usefulness in solving crimes.

His father’s scholarship was noteworthy enough to attract visiting students and doctors from the U.S. Among them was Dr. LeMoyne Snyder, a Michigan physician who would go on to write the book “Homicide Investigation,” which would be taught in police academies and university criminology programs for decades. Years later, Snyder offered Rudiger Breitenecker, upon his graduation from medical school, a job at his Michigan hospital.

“I finished medical school, and one week later, I took a boat to the United States,” Breitenecker said.

Breitenecker would soon become an emerging star in the world of forensics, crime and expert testimony. Having moved to Baltimore, he made news in the high-profile death of Gene “Big Daddy” Lipscomb, the beloved tackle for the Baltimore Colts and the Pittsburgh Steelers who died suddenly in 1963 at age 31 in the kitchen of a friend’s apartment in West Baltimore.

Breitenecker examined him carefully. He found telltale needle marks.

“I concluded that he died of heroin overdose and alcohol. His liver was rotten from alcohol.” Then, he said, “All hell broke loose.” Magazines and newspapers from across the country called his office. Many friends and family were in disbelief that Lipscomb could have been a drug user.

Scott Shellenberger, Baltimore County’s state’s attorney, said that even before DNA, Breitenecker was an important source for solving and prosecuting sexual assault cases. He could confirm the presence of spermatozoa and give a ballpark figure as to the timing of the rape. But what Shellenberger and others remember best was his courtroom presence.

Breitenecker was 6 feet tall, with broad shoulders from years of skiing in the Austrian Alps, and he spoke with a significant accent from what he calls “the old country.” But his words were precise, and they packed a punch.

“I have seen Dr. Breitenecker in a courtroom hundreds of times, and he is, without question, the best expert witness I’ve ever seen,” said Shellenberger, who as a student in law school used to sit in on trials where Breitenecker was a witness.

By 1988, Shellenberger was an assistant state’s attorney in the sex crimes division, working directly with Breitenecker. He recalled one time when Breitenecker testified about his examination of a rape victim in a case in which Shellenberger knew the defense would bring up the victim’s long delay in reporting the crime. He was explaining the issue to the doctor as they walked to the courtroom, but Breitenecker cut him off, tapped him on the shoulder and said, “I’ll take care of this.”

During cross-examination, Shellenberger said the doctor looked at him and actually winked.

“I had to put my head down,” Shellenberger said, laughing at the memory. In three minutes of sustained, persuasive testimony, Shellenberger recalled, Breitenecker refuted the significance of the delay so thoroughly that the defense lawyer threw in the towel.

“The defense attorney just looked up to the judge and said, ‘No further questions, your honor,’” Shellenberger said.

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In 1975, the year Breitenecker opened the Rape Care Center, 616 rapes were reported to Baltimore city and county police — about one a day in the city and one every other day in the county. Reported rapes in the county were more than five times the number of homicides. The real number of rapes, according to researchers at the time, was probably twice that.

There are plenty of reasons why victims don’t report a rape — fear of the rapist’s threats, fear of ruined reputations, or an understanding that even if they went through all the trouble of reporting and undergoing an examination, there was a good chance nothing would come of it.

“Most cases were not prosecuted because they didn’t collect evidence at the time,” said Dr. Julio C. Novoa, who worked with Breitenecker during his first decade at the Rape Care Center.

“Breitenecker was very helpful in trying to control the impunity,” he said. “Before, there was no evidence.”

Unlike many doctors examining women in emergency rooms back then, Breitenecker had a pathologist’s training. He spent years investigating suspicious deaths. He was a medical detective. “I am happy to take all the forensic work,” he told law enforcement officials and colleagues at the hospital.

Breitenecker wanted to let the science speak. His standardized exam, glass slides and tubes offered a chance for that to happen. Nobody knew quite how clear a picture the microscopic evidence would offer one day. But he had a hunch.

He also suspected that the evidence he was keeping could not only help identify rapists, but also perhaps clear men wrongly accused of a crime.

And so Breitenecker testified on behalf of both prosecutors and defendants.

But always, he would save everything at his hospital. “He was a pack rat and thought there would be the ability to identify whose semen it was,” said Linda Kelly, a nurse who oversaw the sexual assault examinations at the hospital after Breitenecker retired. “But also maybe another part was his distrust of the bureaucracy and he felt more comfortable with the evidence in his control.”

It wouldn’t take long for his instincts to be proved right.

In 1984, a young British researcher studying genetics discovered a method that would enable scientists to match DNA from crime scene evidence to a particular suspect. The “DNA fingerprinting” technology that emerged was first used by local law enforcement in Leicestershire, England, to catch a serial rapist-murderer in 1987. Later that year, Tommie Lee Andrews, a rapist in Florida, became the first American convicted with the new forensic science. Over the next two years, Virginia law enforcement identified a long-sought serial rapist-murderer called the “South Side Strangler” using DNA, and they soon established the country’s first state DNA databank, compelling certain sex offenders and violent felons to submit DNA samples.

“When the DNA came out, I said, ‘Wait a minute, maybe this is the answer,’” Breitenecker recalled. “We had hundreds and hundreds of these tubes of fluid that potentially contained semen from assailants.”

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Breitenecker didn’t hide what he had. When police asked, he turned over his tubes and slides on a case-by-case basis.

In 1990, Shellenberger, then a young prosecutor, had Breitenecker’s evidence tested for DNA for the first time. The case involved a victim of a brutal rape who had identified the perpetrator as her ex-boyfriend. The ex-boyfriend was arrested and charged, but he insisted on his innocence and pointed to another suspect who looked just like him.

“Yeah, right,” Shellenberger said he thought at the time. But he agreed to try out the new DNA technology and sent the evidence to the FBI for testing.

The results shocked him; they proved the ex-boyfriend right. The DNA Breitenecker saved from the victim matched the sample taken from the lookalike man, who was also an acquaintance of the victim. Such was the power of the first DNA test from Breitenecker’s stash that it could both free the innocent and convict the guilty.

But the case did not lead police to create a comprehensive testing program. It would be another 14 years before Sgt. Rose Brady began more aggressively testing his slides.

There are several reasons for the delay, according to former police and prosecutors. Shellenberger said DNA testing was slow and costly in the early days. It took four months to get test results from that first case. Mass testing was not possible. The FBI DNA database had not yet been established. Scientists needed larger samples to extract a DNA profile.

Over the next decade, science and technology progressed to the point that mass testing of ever-smaller samples became faster, more feasible and more affordable. By 1994, Maryland established its sex offender DNA database. By 1998, all 50 U.S. states could link DNA profiles to an FBI database. Still, Dr. B’s evidence lingered. Police cited budgetary constraints as the reason for not testing.

“We were always looking for outside money because we never had enough money to do what we wanted to do,” said Terrence Sheridan, Baltimore County's police chief between 1996 and 2007 and again from 2017 to 2019.

“Police never spent money on cold cases when there were funding issues for current cases,” recalled Lynnda Watson, a forensic biology supervisor with the Baltimore County Police between 1995 and 2015.

Dr. Breitenecker’s slides had to be outsourced for testing because of the special stain he had placed over them. Law enforcement also struggled to justify paying for testing in cases that would not be used in the courtroom. If the victim did not want to prosecute or the state’s attorney declined to charge, police often would not test the DNA.

“If there is no charge, the suspect is presumed innocent,” Sheridan said.

Law enforcement also did not see the value in testing the DNA when the suspect was known and the legal issue was whether the other person had consented, though police have since changed their stance with new research demonstrating how DNA can solve other cases.

Sandra A. O’Connor, who became Baltimore County’s top prosecutor the same year Breitenecker opened the Rape Care Center, spoke of a highly antagonistic environment for survivors in the early days.

“It was just such a horror show for rape victims, and there were not great results in the courtroom,” O’Connor said. A woman’s sexual history was fair game for defense attorneys at the time, often making victims feel like defendants, O’Connor explained. And cases between acquaintances, the so-called “he said, she said” cases, were extremely difficult to win, she added.

It couldn’t have helped that the man prosecuting such crimes before O’Connor, Baltimore County’s State’s Attorney Samuel A. Green Jr., had made headlines for numerous sexual misconduct controversies in the early 1970s. He ended up resigning after getting convicted of 16 counts of misconduct in office, obstruction of justice and conspiracy; he was sentenced to three years in prison. He was later pardoned by Gov. William Donald Schaefer and has since died.

O’Connor, like many in law enforcement, knew of Breitenecker and his scientific foresight, but was not aware of the enormous scope of his work by the time she retired in 2006. As to why the evidence was not tested more comprehensively, she said, “It was a cost issue.”

A 2002 exoneration case would remind law enforcement just how powerful Breitenecker’s makeshift database could be.

Bernard Webster was a teenager when he was sentenced to 30 years for a 1982 rape. After he heard the verdict, he told the courtroom, “I hope one day y’all find out the real perpetrator because I ain’t had nothing to do with this.”

Webster sat in a steel and concrete cell at the Roxbury Correctional Institution in Hagerstown, Maryland, for nearly two decades before public defender Michele Nethercott read his letter imploring her to help. Nethercott had been tracking the exonerations happening across the country due to DNA. She took classes at night to better understand the science and became the head of forensics for Maryland’s public defender office.

Nethercott discovered Baltimore County police had destroyed evidence from Webster’s case, but that GBMC had DNA evidence from old rape cases. She got the evidence slides taken from the woman who had reported the rape Webster was later convicted of.

“There was some disgruntlement on the part of the police department that this was all happening,” she said. “I got calls from Baltimore County police officers basically asking me in a not-very-nice way how I had gotten these slides and who was I to do this?”

The DNA on Breitenecker’s slides excluded Webster as the rapist. On Friday, Nov. 7, 2002, he walked out of the Baltimore County Circuit Courthouse a free man, the 115th person in the country released from a wrongful conviction thanks to DNA.

“It really does speak to the importance of somebody like a Dr. Breitenecker, who was meticulous and disciplined and committed to having a logical and rigorous tracking system for evidence,” Nethercott said.

Nethercott, who is now the director of the University of Baltimore’s Innocence Project Clinic, said they were lucky to find the evidence in the Webster case.

“I would say over half of the cases where I have determined the case is appropriate for DNA testing, we can’t, we can’t find it,” Nethercott said, referring to cases across the state. “I don’t think there’s any question that there are people who are sitting in prison serving long prison terms and some, in some instances serving life sentences, who did not commit the sexual assault or the rape. And they will never be able to prove it because the evidence that could exonerate them will never be found. It’s profoundly sad.”

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In 1997, Breitenecker was 67 and ready to retire. His work had included not only the painstaking effort to collect and catalogue evidence, but also the fight he’d had to put up against his own hospital to keep doing so. When his collection grew so vast he needed another freezer to store it all, the hospital balked. To prevail, Breitenecker had threatened to quit.

“If they had been smart, they would have gone to the state’s attorney and said, ‘You buy a freezer!’” Breitenecker said with a laugh.

With Breitenecker’s retirement, though, the hospital opted not to add more samples to his system and instead adopted the Sexual Assault Forensic Examination program. By then, many hospitals and police departments had developed modern SAFE programs and were forwarding rape kits directly to police after the exam to minimize disruption to the chain of custody.

Breitenecker didn’t have a lot of faith that the new system would work well.

“God love him,” said Kelly, the forensic nurse managing the new program. “He didn’t want to lose anything for the victim. He wanted to protect it. He didn’t have the sense of security and trust that it would be handled in the way he would handle it.”

Breitenecker said he reminded police of the evidence as he left, but he said they chiefly “moaned and groaned because it was totally overwhelming for their lab.”

And so his evidence sat basically ignored for another seven years — until Brady, a newly minted supervisor in the Baltimore County Police Department’s sex crimes unit, got wind of it.

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