Newest suspect in rapes: the DNA
'John Doe' indicted to keep cases open
On a cold February night in 1989, two 18-year-old girls stopped in a downtown Store 24 before leaving to meet friends on Boston Common. As they left the store, a gang of five men -- all strangers -- approached them.
The girls tried to get away, but the men followed and, minutes later, the teenagers were forced into a car and driven to Dorchester's Walsh Park where at least two of the men raped and beat them. The rape stopped only when one of the attackers thought he heard police coming and yelled ''5-0," a term for law enforcement. The girls were left there, bruised and bleeding.
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."
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."
Some defense attorneys worry that rape cases could now be brought several decades after the crime, which will leave the accused unable to mount a strong defense, because alibi witnesses and memory can grow fuzzy, and other evidence can get stale. ''The problem with having a trial 20 years after the fact is that the only evidence available may be the DNA evidence," said Barry Steinhardt, the director of the American Civil Liberties Union Technology and Liberty project.
Conley began pursuing the indictments late last year, after a legislative effort to abolish the statute of limitations for rape failed. The technique was also used last year in Hampden County. Representative Eugene O'Flaherty, a Chelsea Democrat who cochairs the legislature's Judiciary Committee, said he believes no change in Massachusetts law is needed for state prosecutors to pursue the DNA indictments, which courts in other states have upheld.
So far, Suffolk County grand juries have indicted DNA belonging to three John Does, though the cases have not led to a match with a suspect's genetic code. Prosecutors are hopeful, though. Massachusetts last year enacted a broad expansion of its DNA database, requiring anyone convicted of a felony to submit a DNA sample to the state bank. The state began collecting those samples in November.
Conley's office is reviewing eight more genetic profiles for possible indictment in the coming months. And each time a rape case with DNA evidence approaches its statute of limitations, his office will review it for possible indictment.
Conley says his office indicts DNA profiles only in rapes that meet specific criteria. The Boston Police Departments Crime Lab reviews evidence collected in all old rapes and identifies which rape kits contain DNA of sufficient quality and quantity for accurate testing, said Conley's spokesman, David Procopio said.
In addition, they focus on rapes committed by strangers in which victims are willing to testify. DNA evidence is typically far more relevant in cases where a woman has been attacked by a stranger; in cases involving someone she knew the more pivotal question is one of consent.
Conley first heard about the approach while reading about an initiative spearheaded by New York Mayor Michael Bloomberg. Last August, Bloomberg announced New York City's John Doe Indictment Project, an effort endowed with a $350,000 grant from the US Department of Justice. Hundreds of rape cases at least nine-years old were to be systematically reviewed under the program. So far the Manhattan District Attorney's office has indicted 17 John Doe DNA profiles involving 21 victims but has not apprehended any suspects.
Milwaukee has had more success. Of the 15 John Does indicted by Milwaukee prosecutors since 1999, six have been matched through the DNA database. Of the six men, four were already in jail and one is missing. Another was on the streets and was apprehended after the match was made.
One of the men already in prison, Bobby Dabney, was matched to a DNA profile taken from a child rape victim. He was tried and found guilty of that rape and received a 120-year sentence.
Some high profile defense attorneys support John Doe indictments. Peter Neufeld, the co-founder of the New York-based Innocence Project, a non-profit organization that uses DNA evidence to exonerate the wrongfully convicted, thinks the approach is logical when used appropriately.
''It strikes the proper balance because on the one hand the statute of limitations is designed to prevent the state from forcing the accused to come up with a defense many, many years after the criminal event when witnesses are hard to find and memories are non-existent," Neufeld said. ''But in a case with, for instance, a 12 year old girl who was raped and semen is collected from her, the defendant has no better chance of refuting that 6 days after the event than he does 16 years after the event."
Still, some experts worry about an over-reliance on DNA, and say the genetic material is not enough to rest an entire prosecution on.
''It sounds foolproof, but putting aside the question of whether its unfair to change the rules of the game, the DNA indictment assumes that because it uses DNA there will not be a mistake," said Stanford Law Professor Robert Weisberg.
That assumption is wrong, Weisberg said. Questions about how DNA was gathered and stored can be difficult to address years later, he said. Because the indictments are handed down by a grand jury, Weisberg also worries about how carefully the DNA evidence will be assessed, especially since defense lawyers and judges are not typically present during grand jury proceedings.
''You simply don't have the adversarial testing of evidence that you get in a real trial," Weisberg said.
Conley's office dismisses such criticism, saying DNA is used in other grand jury proceedings. And Conley said the focus should be on finding those who committed the crimes, and using all the tools that support that effort.
''People who commit these predatory rapes on strangers are far more likely to do it again," said Conley. ''We're looking to protect victims who are not yet victims." 