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Policy Allows Prosecutors to Use DNA Evidence to Indict Before Individual Identified

The last decade has seen a quiet revolution in law enforcement. Thanks to the wonders of DNA testing, police and prosecutors have been able to identify and convict hundreds of criminals who might have escaped justice, had they committed their crimes just 10 years earlier. Even criminals who did commit their crimes before genetic identification techniques were available are finding they can now be prosecuted, when old evidence is tested and their DNA is identified. But they can only be charged if the statutes of limitations on their crimes haven't run out.

One way prosecutors are getting around statues of limitations is by charging DNA profiles even before they've been identified.

It's called the "John Doe Indictment Project," because the name "John Doe" is frequently used by Americans to refer to a man who is known to exist, but whose name has not been publicly identified.

In New York, prosecutors have begun to file charges against more than 600 DNA profiles that do not yet have names or faces attached to them. The profiles were generated from semen present on the bodies of women who were raped about nine years ago.

There's a 10-year statute of limitations on rape cases in New York, meaning if an indictment hasn't been handed down within a decade, no one can ever be charged. Until now, prosecutors needed a name in order to indict. But thanks to a policy implemented by New York's mayor, Michael Bloomberg, prosecutors now have the freedom to indict nameless DNA… and then prosecute the owner of that DNA whenever he's identified, even if it isn't for another 30 years.

"What we're trying to do is prevent sexual predators from escaping through a technicality," said John Feinblatt, New York City's criminal justice coordinator. He says statues of limitations were implemented during an age when law enforcement agents relied heavily on people's memories when gathering and presenting evidence. But Mr. Feinblatt says scientific DNA testing… and the relative certainty it provides… have changed law enforcement so radically that the statutes of limitations for many crimes are no longer necessary.

"DNA just puts us in a world where there is no more guesswork," he said. "The thing about DNA is it doesn't forget. It doesn't forget if it's 10 years old, if it's 15 years old, if it's 20 years old. And so now that we live in a world where we collect DNA evidence, the statute is an anachronism. It no longer serves the purpose."

So then why not just get rid of the statute of limitations? John Fleinblatt says Mayor Michael Bloomberg has tried.

"We would like to get rid of the statute of limitations, and we've gone to the state legislature repeatedly, and they have not seen fit to remove the statute of limitations," he said. "But I can assure you the mayor will go back."

One of the reasons lawmakers have been wary of eliminating the statue of limitations is that it's very difficult for an innocent person to defend himself, when he's been charged with committing a crime dozens of years ago. If the defendant has an alibi, it could be difficult to locate the people who can verify it. Maybe the defendant, himself, doesn't even remember what he was doing on the day the crime was committed.

But John Feinblatt says the John Doe Indictment Project isn't trying to circumvent all statues of limitations, just the ones involving rape by a stranger. That's why the project has garnered the support of Peter Neufeld, a prominent attorney who helped defend football player O.J. Simpson against murder charges in 1995… and who has also made a career out of exonerating innocent people who've been sent to jail. Mr. Neufeld says he supports indicting DNA, but only under limited circumstances.

"On the one hand, it's great to do it with semen from a rape, but it may not be so good to do it with a DNA profile on a hair found at a crime scene, because a hair found at a crime scene, you're not sure if it was deposited by the criminal, or was it deposited four days earlier by a telephone repairman," he said. "As long as the prosecutors are careful to only use the John Doe Indictment when they're very, very sure that the biological evidence is connected to the perpetrator of the crime, then I think it makes a lot of sense."

Mr. Neufeld says he'd rather see prosecutors indict DNA taken from semen, than see lawmakers remove the statue of limitations on rape. John Doe indictments have been pursued by prosecutors in a number of cities, such as Austin, Texas, and Ann Arbor, Michigan. But those indictments have been done on a case by case basis. So far, New York is the first and only American city to start systematically indicting nameless DNA. The project is being supported, in part, by a $350,000 grant from the U.S. Department of Justice.