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Despite DNA evidence, statute of limitations prevents prosecution of Ohio rape cases

Posted: 6:45 PM, Oct 03, 2019
Updated: 2019-10-04 11:13:51-04
Rape Kit Backlog

Our exclusive three-month 5 On Your Side Investigation reveals how Ohio fails sexual assault victims. We uncovered dozens of cases that will never be prosecuted, despite compelling DNA evidence, because of Ohio’s current statute of limitations.

‘Things were good’

In June 1991, Mary Ellen Bryan was happy. She was a married mother of four, with three daughters and a 10-month-old baby boy.

She loved their home in the Highland Square neighborhood in Akron, the same neighborhood where she grew up.

“I had a lot of really good neighbors, friends I enjoyed,” she said. “The house was just the way I wanted it. Things were good.”

Then, in the early morning hours of June 29, 1991, a stranger snuck into her home through her kitchen window and changed everything.

“I'm always going to have that feeling. Always. For the rest of my life,” she said.

A stranger at the door

The night was hot. Mary Ellen woke up early.

She wandered downstairs to see if her husband was home. He was enjoying an evening out - celebrating at a bachelor party for her brother.

Her husband’s car wasn’t in their driveway so she went back upstairs to lay in bed, hoping for a few minutes of quiet before her children woke up.

Instead, moments later, a man appeared at the entrance of her bedroom.

“I just saw him at the door,” she said. “I saw a stranger at my door.”

The stranger held blankets in his hands. Before Mary Ellen could react, he charged at her and used the blankets to cover her head. He flipped her on her stomach, grabbed a pillow, and put that over her head, too. Then, he climbed on top of her, his entire body on top of her head, and pressed down.

“He suffocated me,” she said. “Until I was close to death.”

“The adrenaline that was going through my body is something I can’t even describe,” Mary Ellen said.

“You’re thinking, ‘How I am going to live?’ and then I got to a point, where I couldn’t breathe anymore.”

“I thought he was going to me kill me,” she said. “It was terrifying.”

She stopped struggling. Eventually, he let her breathe.

Then, he raped her. Twice.

Mary Ellen Bryan
Mary Ellen Bryan

During the attack, Mary Ellen tried not to make a sound. She was terrified for her children’s safety.

"I was scared that one of my children would wake up and come in,” she said. “And he would kill them."

After all, the stranger had already been in at least one of their rooms.

The blankets he used to smother her with were taken from her 2-year-old daughter Nora’s crib.

They were the same blankets she used to cover Nora earlier that night.

‘I remember fear’

“Before he left, he said he was going to shoot me if I got up,” Mary Ellen said.

“Those are the exact words, he said, "I'll shoot you if you get up."

Then, the stranger disappeared along with her sense of safety.

She laid still until she was sure he was gone. Then, she called 911.

“I remember fear. I do,” said Jane Bryan.

Jane Bryan
Jane Bryan

Mary Ellen’s oldest daughter was 12-years-old when her mother was attacked in their home.

“We had no idea who this person was,” Jane said. “And that was haunting. “

At the time, Jane didn’t know about the rape, but understood something very bad happened to her mother.

For one, after the attack, they immediately left their home and moved in with Mary Ellen’s mother.

Jane remembers being confused about why her mother hated pillow fights and why she asked Jane never to sneak up on her and startle her.

“I always knew there was something looming,” she said. “She wanted to always lock her bedroom door. That was something I’ll always remember.”

Only years later, when she discovered reports from the crime, did Jane understand why her mother was so afraid.

Waiting for justice

At first, Mary Ellen felt confident her rapist would be caught.

She had gone to the hospital for a sexual assault forensic exam, known as a rape kit, to gather evidence after her assault. She also believed her attacker was violent he would commit more crimes.

“I thought he would do something… and then maybe connect it because DNA had started, so I thought maybe they’re (police) going to be able to catch this guy,” she said.

Instead, years passed.

Then, decades.

Every few months, Mary Ellen’s mother would call Akron police to ask about her case. There was never any news.

Eventually, the detective assigned to the case retired.

Finally, Mary Ellen lost hope she would ever be able to seek justice.

In the meantime, she resolutely rebuilt her life.

She and her husband had two more children, a boy and a girl.

Jane described her mother as strong, compassionate and dedicated to creating a loving home for her children.

“I would describe my family as happy,” Jane said. “We have a strong bond. We all love each other with an immense amount of joy. “

“The way my mother and my father raised us was to always try to, I want to use the word resilient, but it is resilient, to try to keep moving forward,” she said.

Ohio Sexual Assault Kit initiative

In 2012, Mary Ellen found new reason to hope for justice.

Then Ohio Attorney General, Gov. Mike DeWine started testing the state’s backlog of rape kits, many sitting on shelves in police evidence rooms for decades.

By the time it ended in 2018, the SAK initiative tested 13,391 kits, 5,024 kits hit to the Combined DNA Index System (CODIS) database, and 300 serial offenders were identified, according to the attorney general’s office.

At the same time, Mary Ellen’s daughter, Nora, the 2-year-old girl who slept as a rapist took blankets from her bed, had become driven by her mother’s unpunished attack.

After college, she went to law school. When the SAK initiative started, she was interning with the Summit County Prosecutor’s Office.

After learning about the SAK initiative, Nora called one of the Akron detectives gathering old rape kits to send to the Bureau of Criminal Investigation for DNA testing.

Nora asked the detective to look for her mom’s kit. He promised he would help her. In fact, he was going to the department’s evidence warehouse the very next day.

“I didn’t think that anything would come from it,” Nora said. “It may have been destroyed.”

She was wrong. The detective found her mother’s kit wedged between a wall and a shelf.

“My heart dropped,” Nora said. “This could uncover, finally, this huge whole in my mom’s heart of who did this to me.”

The kit was sent for testing.

There was a hit.

A DNA discovery

“When my kit was tested, they found a DNA match that came though CODIS. And that match was that it was a person named Derrick Fischer,” Mary Ellen said.

“I was shocked,” she said. “Before, it was like a phantom, it was like an evil presence and then to see an actual human being… with a life.”

Who is Derrick Fischer?

Court records show the 49-year-old Akron man has history of criminal convictions, including drug trafficking, domestic violence… and rape.

Fischer was convicted of rape and sexual battery in Summit County in 1992 after police said he forced his way into a woman’s home, suffocated her with a pillow, and raped her.

Fischer was caught in the act by police officers, according to the report.

The victim managed to call 911 before he suffocated and raped her.

“I was thinking like ‘Why didn’t they (police) put two and two together?” said Mary Ellen.

Despite more than two decades passing since the attack, Mary Ellen still wanted justice.

She met with prosecutors in Summit County. She said they seemed eager to pursue her case.

However, during a meeting, she learned the DNA results from her SAK test didn’t matter.

For her, justice had expired.

“It was, yeah, it was gut wrenching,” she said. “Especially when I saw his picture, I saw his rap sheet, I saw how violent he was.”

“I mean this was a violent crime where my children were home,” she said. “And he got away with it.”

Statute of limitations

Why can’t prosecutors pursue Mary Ellen’s case?

Like most states, Ohio has a statute of limitations for rape and other sexual offenses.

The statute is a law that creates a clock. It starts running when a crime is committed. In Ohio, the statute for rape currently expires after 25 years, with an additional five-year window for the discovery of DNA evidence.

The statute of limitations, often abbreviated to only the letters SOL, means no one can be charged or convicted for a crime after the statute runs out, even when there is new evidence, like a DNA hit.

When Mary Ellen was attacked, Ohio’s statute of limitations was only 20 years.

Prosecutors explained to her, on June 29, 2011, her window to receive justice closed.

“It punishes the victims,” said Mary Ellen about Ohio’s SOL. “It's another assault on us. We don't get… what we deserve.”

We also found Mary Ellen is not alone.

According to the Ohio Attorney General’s office, Mary Ellen’s case is one of 61 cases where no one can ever be prosecuted, despite a DNA match discovered during the SAK initiative.

For example, in 1993 in Medina County, a woman was raped in a field by a man she offered to drive home.

The Medina County Sheriff’s Department said they were notified about a DNA hit on the case just weeks after the statute expired.

Not the worst, not the best

“I think first and foremost every single victim of sexual assault deserves to feel safe,” said Camille Cooper, Vice-President of Policy, RAINN (Rape, Abuse and Incest National Network) , a leading national anti-sexual violence organization.

Camille Cooper
Camille Cooper

Cooper said states should eliminate their statutes of limitations for rape.

“When you have someone who’s been traumatized in that way and is barred from being able to pursue justice or have their offender prosecuted it takes a huge toll on those victims,” she said. “They live their whole lives always looking around the corner, being afraid to go to sleep at night because they don’t know if their offender’s going to come back.”

Cooper also said SOLs for rape also put the public at risk because rapists are often serial offenders.

“If there's a statute of limitations, that means there's a lot of rapists out there that are going to remain on the streets,” said Cooper. “Most of these guys don't have one victim, most of them don't even have one or two victims, most of them have a lot of victims.”

Guys like William Griffith.

He is currently in state prison after being convicted of two rapes. 5 On Your Side Investigators found his DNA hit to a rape kit from 1980 in Olmsted Township.

Cooper said Ohio’s rape statute is longer than many states'.

However, she said eight states and Washington D.C. do not have any SOL for rape.

“Ohio is definitely not the worst,” said Cooper. “But it's not the best either.”

“There are a lot of very good things about Ohio,” she said. Cooper praised DeWine’s SAK initiative and efforts to create policies surrounding sexual assault investigations.

“They just need to eliminate that SOL,” she said. “Now. It's time.”

Calls for change

It could happen.

After a report revealed a deceased doctor who worked for Ohio State’s athletic program was accused of sexually abusing nearly 1,500 male athletes, Ohio’s top leaders began to call for an end to the state’s statute of limitations on rape and other sex crimes.

In June, Ohio Attorney General Dave Yost held a press conference with several former Ohio attorneys general to call for the eliminations of the state’s statute of limitations.

At the same time, four state lawmakers introduced legislation to eliminate Ohio’s statute of limitations for rape.

OH Sen. Nickie Antonio (D-Lakewood), who has been sponsoring similar bills for years, and OH Sen. Sean O’Brien (D-Bazetta ) introduced a bill to abolish both the statute of limitations for sex crimes and spousal exemptions for rape, sexual battery and other sex crimes.

OH Rep. Tavia Galonski (D-Akron) and OH Rep. Kristin Boggs (D-Columbus) introduced identical legislation in the House of Representatives.

Both bills have been assigned to committees, but no hearings have been scheduled.

However, even if the bill passes, it still won’t matter for Mary Ellen’s case.

Any new law cannot be applied to old cases.

“There shouldn’t be a statute for a crime this violent and this violating,” Mary Ellen said.

“When somebody comes into someone’s home, sneaks upstairs and goes into their children’s rooms, and almost killed me with my children in their beds … and to be able to know who it is and not do anything about it? That law should be abolished.”

‘Everyone deserves justice’

Driven by their mother’s unpunished attack, Jane and Nora now both seek the justice denied their family for others.

Jane is a trained Sexual Assault Nurse Examiner. She works to comfort rape victims as she collects evidence from their bodies for sexual assault kits.

“It does sound heavy and it is hard,” she said. “I feel honored to be with them in that moment when they feel vulnerable.”

Nora works as a county prosecutor to help put criminals behind bars. She remains frustrated her mother’s attacker will never be punished.

“It’s maddening,” Nora said.

“Everybody deserves justice,” she said. “But she's my mom.”

Mary Ellen beams with pride when asked about her daughters’ work.

“Jane’s incredible, what she sees and how she helps these women,” she said. “Nora, she’s just brilliant and tough and doing the right thing. I mean, they’re a couple of little soldiers in this whole cause.”

Yet, she remains frustrated that for her, justice expired.

“Time doesn't change for me,” said Mary Ellen. “I'm always going to have that feeling. Always. For the rest of my life.”

The investigation

Police say Derrick Fischer’s DNA was also linked to a rape reported in Barberton in 2010.

They are currently investigating the case.

Fischer is currently serving time at Lake Erie Correctional Institution after being convicted of two counts of drug trafficking, drug possession, domestic violence and carrying a weapon while under disability.

He’s currently scheduled to be released in 2022.

Fischer declined 5 On Your Side Investigator’s request for an on-camera interview.

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