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DNA evidence changes for whom the statutes toll.

In 1994, a 15-year-old Wisconsin girl was kidnapped and sexually assaulted. Police obtained a semen sample but were unable to match it. In October 2000, three days before the six-year statute of limitations on the crime was set to expire, authorities issued an arrest warrant for the person--as yet unidentified--who matched the DNA profile.

The sample was finally matched to Bobby Dabney in February 2001; he was tried and found guilty.

On appeal, Dabney argued that the statute of limitations on his crimes had run, but the Wisconsin Court of Appeals was not convinced: It ruled last year that a "John Doe" warrant based on a DNA profile properly circumvented the statute. It was the first appellate-level opinion in the country upholding an arrest warrant for an unidentified suspect matching a DNA profile. (State v. Dabney, 663 N.W.2d 366 (Wis. Ct. App. 2003).)

A Wisconsin law enacted after the indictment was filed bolstered the state's position in the case, the court wrote. It provides that DNA profiles "sufficiently identify sexual assault offenders and that the competing interest in sexual assault prosecutions weighs in favor of allowing such prosecutions to commence after six years when the state has obtained the offender's DNA profile but has been unable to match it to a known DNA profile within that period."

"The legislature essentially has created a 'discovery rule' extension of the statute of limitations in these limited circumstances," Judge Ted Wedemeyer wrote for the court.

Other state legislatures are also enacting laws that eliminate or extend statutes of limitations for offenses in which DNA evidence is found at the crime scene. Some states would allow an indictment to be filed against a genetic profile as a John Doe before the statute expires. Others have or are considering extending statutes so that cases can be pursued years after a crime when a genetic profile has been matched. Last year, at least 10 states considered removing statutes altogether for offenses where DNA evidence was collected, and at least 20 have passed similar laws since 2000.

Defense lawyers have objected, saying a suspect may not be able to find reliable defense witnesses if he or she is tried for a crime many years after the fact. They also question whether future technology will work with evidence preserved using today's methods.

Most of the new laws pertain to sex crimes, but some state lawmakers have considered extending time limits for extortion and kidnapping, Class B felonies ranging from burglary to man-slaughter, and some misdemeanors (such as fraud) where DNA evidence is available.

Current limits on criminal prosecutions were established when DNA-testing techniques were in their infancy; now the law must catch up with the science, say legislators seeking to extend or banish statutes of limitations so that police and prosecutors can still pursue cases when funds to process DNA evidence are allocated.

Many states now require offenders to submit saliva samples to establish DNA profiles, which are compiled in databases. But funds for testing and building archives are scarce, so most states have a backlog of samples that haven't been analyzed.

Federal legislation that would address the funding problem is pending. The DNA Sexual Assault Justice Act of 2003 (S. 152) would provide additional money for labs to process DNA evidence, establish a grant program to improve sexual-assault case investigations with more training and equipment, and allow John Doe indictments of unnamed people described only by a particular DNA profile.

"The use of such warrants can serve to avert the expiration of the statute of limitations in cases where an offender is unknown by anything other than the DNA profile contained in the evidence collected," said Susan Herman, executive director of the National Center for Victims of Crime, at a May 2002 hearing of the Senate Judiciary Subcommittee on Crime and Drugs.

In August 2003, in the wake of New York Gov. George Pataki's announcement that he planned to expand the state's DNA database and eliminate the five-year statute of limitations on Class B violent felonies, New York City Mayor Michael Bloomberg launched a city-wide "John Doe Indictment Project." The program targets the city's unsolved rape cases, of which at least 600 had languished for 9 years, just shy of the 10-year statute of limitations that applies to cases that involve unknown perpetrators.

"We will make aggressive use of John Doe indictments to stop the clock on the statute of limitations and make sure that rapists are not rewarded for avoiding apprehension," Bloomberg said at a press conference.

Defense objections

This approach troubles many criminal defense lawyers.

"Charging a genetic profile is the same as repealing the statute of limitations in sex cases," said Patrick Sullivan, a Minneapolis attorney with the Hennepin Country public defender's office. "In a forgery, you might identify the forger 100 years from now, but they don't extend the statute of limitations for that."

Locating witnesses poses the biggest problem for suspects when statutes are extended, he said. "It could be 20 years from now that someone gets charged for a rape that occurred last week. There could have been biological evidence stored by the police department, and they could charge someone with the crime decades later," Sullivan said. "How would you like to defend yourself 20 years later? Where are your alibi witnesses? Dead or gone, or they're not going to remember where you were on Tuesday night 20 years ago."

Defense attorneys also question the reliability of DNA testing. When the technology was first used in the early 1990s, matches of three or four locations on the DNA strands were considered enough to identify a person. Now, a 13-loci match is the FBI standard for DNA testing.

"Twenty years from now, the technology may be different, and the evidence may not be preserved so that it can be analyzed with whatever new techniques exist," Sullivan said. "If the evidence has been destroyed, you're going to be stuck with the old technology."

Constitutional issues

In addition to practical problems, extensions on statutes of limitations raise constitutional issues.

States that change their laws must remain within constitutional bounds, the U.S. Supreme Court ruled last year, holding that a state may not retroactively extend statutes of limitations in criminal cases. In Stogner v. California, the Court held that a law enacted after a previously applicable limitations period had expired violates the Ex Post Facto Clause when it is applied to revive a previously time-barred prosecution. (123 S. Ct. 2446 (2003).)

Marion Stogner was accused of child sexual abuse committed between 1955 and 1973, when the statute of limitations for the crime was three years. In 1994, California amended its Penal Code to repeal the statute and allow retroactive pursuit of perpetrators. Stogner argued that the amendment violated the Ex Post Facto Clause by subjecting him to a trial and sentence he wouldn't have faced if the law hadn't been changed.

"We agree that the state's interest in prosecuting child abuse cases is an important one. But there is also a pre-dominating constitutional interest in forbidding the state to revive along-forbidden prosecution. And to hold that such a law is ex post facto does not prevent the state from extending time limits for the prosecution of future of lenses, or for prosecutions not yet time-barred," wrote Justice Stephen Breyer for the majority. (See Erwin Chemerinsky, Constitution Bats Prosecution of Long-Ago Child Abusers, TRIAL, Jan. 2004, at 64.)

"The government can't retroactively extend the statute of limitations in a criminal case in which the statute has already expired. To revive criminal prosecutions that otherwise would have been barred is unconstitutional," said Erwin Chemerinsky, a University of Southern California law professor.

States that vote to extend statutes of limitations cannot constitutionally do so for crimes that have already been committed, he said: "The difference is whether you can do it prospectively, which I believe is constitutional, versus retroactively, which is not. For example, if the government wanted to say there will be no statute of limitations for any rape committed "after today, there's no problem constitutionally with that. But if the government wants to revive a rape case where the statute has already expired, then there would be a serious constitutional problem."

There's an important distinction, he said, between such cases and John Doe indictments, which are generally filed within the time limits although the perpetrator's exact identity is unknown. "John Doe indictments may be questionable on other constitutional grounds, especially due process," said Chemerinsky, "because the core of due process is notice, and it can be argued that as a John Doe, the DNA owner has not received notice."

The constitutional questions would disappear--although issues of missing witnesses and testing technology would still exist--if some advocacy groups and legislators have their way. They would like to abolish statutes of limitations on serious sex crimes altogether.

"Because sex offenders pose a continuing danger to society," victims' advocate Herman told the Senate subcommittee, "and because of the terrible and lifelong impact of sexual assault on victims, there should be no limitation on the prosecution of such crimes."
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Author:Porter, Rebecca
Date:Feb 1, 2004
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