In March 1991, a man, wielding a knife, raped and beat a woman in a wooded area near Townsend Street, in Boston. In July, another woman was raped at knifepoint behind an Amory Street building in Jamaica Plain. [1] Each woman described her attacker as “a black male, sixteen to eighteen years of age, standing approximately six feet tall, and weighing approximately 160 to 170 pounds.” [2] According to the Supreme Judicial Court of Massachusetts in Commonwealth v. Dixon, 458 Mass. 446 (Mass. 2010), “[s]exual assault evidence kits, containing vaginal swabs from the victims, were turned over to the Boston police department, [but] tests capable of isolating DNA particles to create a genetic identification sequence were unavailable to it as a forensic tool at that time.”
The Court does not explain why such DNA profiling was not available in the case. Perhaps the sample size was too small to allow VNTR profiling. Such profiling could have avoided the miscarriage of justice that ensured in 1992, when “a Boston man named Anthony Powell was convicted of the March rape. He served 12 years in prison before DNA evidence proved that he could not have committed the crimes, and he was freed.” [2]
In the aftermath of the exoneration, the Boston police crime laboratory checked to see whether the DNA in the rape false attributed to Powell matched DNA from any other unsolved cases. It did, but the identity of the rapist remained unknown.
Realizing that the fifteen-year statute of limitations period imposed for the crime of rape was about to run in several of these old and cold cases, the state had grand juries return indictments against “JOHN DOE, (a black male, approximately 16-18 years of age, 6’0″ and 160-170 lbs, as of July 13, 1991, and further described by the DNA profile appended to the indictments as Appendix A).” [2] The incriminating profile in the appendix was: “D8S1179 (12,16); D21S11 (28,29); D7S820 (8, 12); CSF1PO (11,12); D3S1358 (15,18); TH01 (7,9); D13S317 (11,13); D16S539 (10,11); vWA (18,21); TPOX (9,9); D18S51 (13,18); AMEL (X,Y); D5S818 (8,11); FGA (21,23).” [2]
Two years went by. Jerry Dixon, imprisoned for an unrelated crime, provided a DNA sample in 2008, as required by the Massachusetts DNA database statute. Bingo! It matched, and the Commonwealth replaced the name “JOHN DOE” in the indictments with “Jerry Dixon,”
Dixon filed a motion in the Superior Court to dismiss the indictments on grounds that the state missed the fifteen-year deadline for charging rapes by some two years. The Superior Court kicked the motion up to the Appeals Court for interlocutory review, and the Supreme Judicial Court took over the case on its own motion.
The Supreme Judicial Court’s analysis started with the magisterial command of Article 12 of the Massachusetts Constitution that no subject of the Commonwealth “shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land.” [2] This language, the court reasoned, encompassed a criminal defendant’s historic right to have a grand jury determine the existence of probable cause to proceed against a particular person suspected of a major crime. Although an indictment of a John Doe, without more, would not suffice to identify any particular individual–it would “fail as generally anonymous, the converse is true of a DNA indictment: it prevails as precisely eponymous.” [2, TAN 16]:
An indictment of a person identified by a DNA profile accuses a singular and ascertained, but simply unnamed individual. Probably more than proper names or physical characteristics, DNA profiles unassailably fulfil the constitutional requirement that an indictment provide “words of description which have particular reference to the person whom the Commonwealth seeks to convict.” [2]
Having found “particularity” in the DNA profile and the physical description of the defendant, the court summarily disposed of the statute-of-limitations argument. The indictments were filed within the fifteen-year period (by a few days), the descriptions were particular, and that is all there is to the statute:
However salutary its purposes, the statute is not a source of constitutional liberties, nor does it by its own terms require actual or constructive notice to a defendant in order to be satisfied. Its requirements are simply that a valid indictment be “found and filed.” Those requirements have been met.
This portion of the opinion is unsatisfying. Is not a purpose of the statute of limitations, in the words of the Court of Appeals in United States v. Marshall, 856 F.2d 896, 899-900 (7th Cir. 1988), to shield “the defendant from the burden and jeopardy of confronting distant offenses”? The particularity of a DNA profile notwithstanding, adding years to the statutory period to permit the state to find the individual it wants to prosecute seems at odds with this purpose. Rather than examine the words of the statute in the matrix of the purposes they were designed to serve, the court resorts to a wooden literalism and the argument that the speedy trial requirement of Due Process affords (minimal) protection from extended pre-trial delay. A more sensitive analysis would consider the effects of delay on the several interests that underlie such statutes.
In the end, the outcome might be the same. For example, one purpose of a statute of limitations is to encourage police to proceed expeditiously, and allowing the period to run until a database match appears when no other leads are available is consistent with this purpose. In addition, DNA evidence is unusually durable. Regrettably, Dixon does not squarely address such matters; rather, it blithely states that “the Legislature . . . may revisit the statutory scheme that we conclude permits the practice.” [2] Of course, the same could be said of the opposite construction of the statute–the legislature always is free to correct a judicial misinterpretation of one of its laws. The issue is whether the courts are giving the statutes of limitations their proper interpretation. It will take more than the opinion in Dixon to supply a convincing answer.
References
1. Jonathan Salzman, SJC Ruling Extends Reach of DNA Cases, Boston Globe, Dec. 10, 2010
2. Commonwealth v. Dixon, 458 Mass. 446 (Mass. 2010).
Additional Reading
People v. Robinson, No. S158528 (Cal. Jan. 25, 2010)
James Herbie DiFonzo, In Praise of Statutes of Limitations in Sex Offense Cases, 41 Hous. L. Rev. 1205 (2004)
Kelly Lowenberg, John Doe DNA Warrants and the Statute of Limitations, Stanford Lawyer, Feb. 10, 2010
Andrew C. Bernasconi, Comment, Beyond Fingerprinting: Indicting DNA Threatens Criminal Defendants’ Constitutional and Statutory Rights, 50 Am. U. L. Rev. 979 (2001)
Meredity A. Bieber, Comment, Meeting the Statute or Beating It: Using “John Doe” Indictments based on DNA to Meet the Statute of Limitations, 150 U. Pa. L. Rev. 1079-1098 (2002)
Corey E. Delaney, Note, Seeking John Doe: The Provision and Propriety of DNA-based Warrants in the Wake of Wisconsin v. Dabney (State v. Dabney, 663 N.W.2d 366, Wis. Ct. App. 2003), 33 Hofstra L. Rev. 1091-1120 (2005)
Jonathan W. Diehl, Note, Drafting a Fair DNA Exception to the Statute of Limitations in Sexual Assault Cases, 39 Jurimetrics J. 431 (1999)
Amy Dunn, Note, Statutes of Limitation on Sexual Assault Crimes: Has the Availability of DNA Evidence Rendered Them Obsolete?, 23 U. Ark. Little Rock L. Rev. 839 (2001)
Note, Using DNA Profiles to Obtain “John Doe” Arrest, 58 Wash. & Lee L. Rev. 1585 (2001).
Frank B. Ulmer, Note, Using DNA Profiles to Obtain “John Doe” Arrest Warrants and Indictments, 58 Wash. & Lee L. Rev. 1585-1624 (2001)
Veronica Valdivieso, Note, DNA Warrants: A Panacea for Old, Cold Rape Cases?, 90 Geo. L.J. 1009 (2002).