Mayor: Prosecutors, police and scientists will join forces and use technology on a citywide scale.
By William K. Rashbaum, The New York Times
New York City officials said yesterday that they planned to systematically review biological evidence from hundreds of unsolved sex crimes, with the goal of indicting the unidentified attackers based on their DNA profiles before the 10-year statute of limitations runs out.
Under the initiative, called the John Doe Indictment Project, prosecutors, investigators and scientists will seek to tie the most serious unsolved sex crimes to specific DNA profiles, then file charges even before they have linked a name to the DNA or have arrested a suspect.
The first roughly 600 cases for which evidence will be reviewed concern attacks in 1994, nine years ago. If the indictments are completed before the prosecution clock runs out, law enforcement officials say they believe the person with that DNA can be arrested and prosecuted any time in the future.
The project is the first of its kind anywhere, Mayor Michael R. Bloomberg said yesterday, although individual “John Doe indictments” based on DNA have been filed in New York City and a few other places. There have been roughly 20 cases in the city, mostly in Manhattan, which pioneered the practice in the unsolved case of the East Side rapist, who has been linked to more than a dozen sexual attacks from the 1990’s.
New York State law requires that a felony prosecution be brought within five years of those crimes, or within 10 years if the criminal’s identity is unknown. The purpose of the limitation is to protect the accused against fading memories and lost witnesses. An indictment, even one that identifies the attacker simply by DNA - usually in semen collected soon after a crime - indefinitely preserves the ability to prosecute, officials said.
“For the first time, prosecutors, police and scientists will join forces and use technology on a citywide scale to employ an innovative legal strategy - indicting the DNA profiles of unknown sex offenders,” Mr. Bloomberg said at a news conference with Police Commissioner Raymond W. Kelly, prosecutors and other officials.
“One very simple goal is behind this strategy: stopping rapists from profiting from the statute of limitations,” he said. “By indicting a rapist’s DNA profile even before we know who he is, we can stop the clock on the statute of limitations. So on the day that we find out who that rapist is, whether it takes us 10 years, 20 years, 30 years or more, he will have his day in court.”
A $350,000 federal grant will cover the cost of one prosecutor and one investigator in each of the city’s five district attorney’s offices to work solely on reviewing the cases, Mr. Bloomberg said.
John Feinblatt, the mayor’s criminal justice coordinator, said he could not say how many indictments would be filed, but he and other officials stressed that they would be sought only if the victim could be found and would be willing to testify before a grand jury. Because of the passage of time and the intense emotion involved in sex crimes, he acknowledged that there were special difficulties to winning convictions. Both time and emotion can affect memory, even though the event is burned into the victims’ memories.
Mr. Bloomberg said that for three years the city had sought legislation in Albany extending the statute of limitations. More than a dozen states have extended the statute of limitations since 2000, and others are considering doing so.
Citing the recent John Doe indictments in New York City, Mr. Feinblatt said that the city had used the technique and that it had worked. “We’ve done it on a very small scale, we know it’s a smart way to proceed; the test phase is over and we want to make it policy,” he said. “We tried to go to Albany, and that failed. Our job is to protect victims, and now that we believe science will allow us to do it, we’re not going to wait.”
Criminal-defense lawyers and legal scholars had mixed views of the project, and some contended that it sought to bypass the statute of limitations, a centuries-old tradition rooted in common law, without providing an adequate replacement for the defenses it provides.
Lawrence S. Goldman, the past president of the National Association of Criminal Defense Lawyers, said that with the passage of time, it becomes harder and harder to defend against criminal cases. “It is extremely difficult to defend a crime after many years,” he said. “I would rather the city spend its efforts on people who are sitting in prison and make sure the DNA matches,” he said.
And the New York Civil Liberties Union raised questions about the practice in a memorandum opposing proposed legislation that would have changed New York State law to explicitly allow such indictments. The indictments could violate the due process rights of those accused of crimes, according to the undated memorandum, which appears on the group’s Web site, because after the passage of a significant amount of time, an innocent person accused of a crime may be unable to remember what he or she was doing on a specific day, and alibi witnesses also may not remember, may move away or may die.
But Yale Kamisar, an expert in criminal procedure and a law professor at both the University of Michigan and the University of San Diego, called the project “a kind of ingenious way” to deal with the statute of limitations. Noting that people now treat sex crimes far more seriously than they did even 10 years ago, he said, “So now that people view it differently, I personally don’t see why anybody has a right to say, `Well, my time has run out and they can’t find me.’ This is a pretty good way to respond to that.”
Barry Scheck, a law professor at the Benjamin N. Cardozo School of Law at Yeshiva University and a founder of the school’s Innocence Project, which has been a leader in using DNA to reverse wrongful convictions, said he could imagine cases in which the new technique would be appropriate. “You have to look at it on a case-by-case basis,” he said.
Mr. Kelly, who late last year restructured and expanded the Police Department’s Special Victims Unit, which investigates sex crimes, said the new project would be especially effective as the state’s convicted-offender database grows, allowing the DNA in John Doe indictments to be compared with more profiles. “As the number of profiles in those systems increases, so will the number of DNA matches and the resulting convictions,” he said.
Mr. Feinblatt said the technique was likely to be tested in appeals courts in the coming years. He emphasized that the certainty of DNA evidence was the strength of the project. In recent years, DNA evidence has helped free scores of people wrongly accused of crimes and convict many others.
“Of course, when we were dependent on people’s memories to identify somebody, the statute of limitations made sense,” Mr. Feinblatt said. “We no longer live in that world. In rape cases, defendants leave their identity behind. That makes a world of difference, and what we’re saying is that practice has to catch up with science.”