Sunday, June 20, 2004

Technology and Law Edition: It was the DNA that did it!

The Boston Globe has a fascinating article.

Fifteen years later, in January, Suffolk County prosecutors, frustrated that they had yet to solve the crime and aware that the statute of limitations would soon expire, convened a grand jury. They had no suspects to offer, the prosecutors said, but they had something far more unique -- the DNA of one of the rapists, culled from semen found in one of the women.

The grand jury returned an indictment -- one of the first in Suffolk County, and part of a growing number of ''John Doe DNA" indictments being pursued by prosecutors across the nation, usually in rape cases.

The indictments allow cases to be kept open indefinitely, effectively circumventing the statute of limitations in Massachusetts, which requires that charges be brought against a rape suspect within 15 years. Using the John Doe DNA indictments, prosecutors bring the charges -- even when they don't know who committed the crime -- against the DNA profile from the evidence they gathered.

The approach originated in Milwaukee in 1999 but has spread to counties in Texas, California, New York, and a handful of other states. Last April, Congress passed a bill allowing prosecutors to bring John Doe DNA indictments for federal sex offenses.

It is expected to expand further as states grow their DNA databases, which will allow the DNA profiles to be regularly checked against criminals whose DNA is entered in the databank.

''We're putting a lot of resources into this, but it's worth it," said Suffolk District Attorney Daniel F. Conley. ''We want to give these victims a chance to get justice."

Did you get that? To avoid the lapsing of the statute of limitations the prosecutors are charging the person as identified by a DNA profile. However as might be expected defense lawyers are putting up a big ruckus.
But the new technique is setting off concern among civil libertarians and defense lawyers, who argue that DNA indictments are nothing more than a clever device to evade existing statute of limitations laws, which require a prosecutor to bring charges against someone within a reasonable period of time after a crime has occurred, so a solid defense can be mounted. In Massachusetts, that is 15 years for rape cases.

''It's a complete end run around all of the reasons we have for having a statute of limitations in the first place," said Harvey Silverglate, a Boston criminal defense and civil rights attorney. ''It abolishes, effectively, the statute of limitations in a case where there is DNA evidence."

The main idea behind the statute of limitations isn't that the heniousness of a crime or the interest of the state in prosecuting criminal actions decays with time but it's a due process issue.
All states have statutes that require lawsuits be brought within a certain period of time. These statutes, limiting the period of time in which one can bring suit, are referred to as "statutes of limitations." Their purpose is to reduce the unfairness of defending actions after a substantial period of time has elapsed. With the passage of time, memories fade and documents are lost. A defendant will have greater difficulty defending a law suit 10 or 15 years after an event than within 2 or 3 years. Moreover, the law favors stability. The legal system seeks to avoid the disruption resulting from longstanding threats of legal action...

The law recognizes some special circumstances which would otherwise make the operation of the statute of limitations unfair.

However with the new degree of scientific precision and accuracy in DNA typing the fact is that a person can be more accurately identified and charged by DNA rather than by name or other official identifying statistics. After all it's always possible that someone would steal your identity or that there could be a mixup of identities. Stranger things have happened, including people charged in murder cases for victims that later turned up alive elsewhere. Oops!

So I don't see the problem. Clearly the affirmative defense becomes "that's not my DNA" or "You got the wrong guy because my DNA was there for an innocent reason." (such as evidence contamination, lab mixup - remember the FBI crimelab scandal a few years back?) DNA doesn't by itself make a slam dunk case, it just establishes a basis of identifying someone biologically. The real civil libertarian issues are about search and seizure - under what conditions are police allowed to take and keep DNA profiles? - and equal access to expert testimony. Poor or indigent defenders for instance may not be able to hire expert witnesses in order to dispute shaky DNA identifications or bad laboratory procedures that may have misidentified them. In addition there's an issue of educating the jury pool. Just because someone's DNA is present does not by itself prove guilt conclusively, it has to be taken into the context of the entire crime and whether there is any reasonable doubt because of circumstantial reasons. The presence of a DNA match if valid just means that someone's biological signature was at a location. If you have a valid excuse or alibi for it being there and you not committing the crime you should still be able to get off.

Perhaps that's the most shaky area of long-term DNA identification. Suppose I have an alibi because I was at dinner with a friend. Twenty years on that friend passes away. Twenty-two years later I get charged because my DNA was at the scene of a crime ... you get the idea. However in the case of sex offenders I don't think that there's going to be many good excuses for DNA ident's how ever many years pass by. So certainly this is a good thing, given that we hammer out the issues and the DNA evidence is restricted to the areas where it is most illuminating.

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