Saving DNA for a Rainy Day

New York City’s plan to indict genetic profiles.

New York City Mayor Michael Bloomberg announced an ambitious plan this week to start indicting the DNA responsible for unsolved sex crimes. With the 10-year statute of limitations about to expire in at least 600 unsolved sexual assault cases from 1994, the New York program hopes to keep the cases alive by filing indictments immediately against hundreds of “John Doe” defendants keyed to their DNA. If and when the criminals matching the DNA can be found—”Whether it takes us 10 years, 20 years, 30 years or more,” Bloomberg said—the state will prosecute them. “One very simple goal is behind this strategy: stopping rapists from profiting from the statute of limitations,” he said.

DNA warrants are not new. In Wisconsin, New Mexico, California, Utah, and New York, district attorneys have occasionally filed charges against unnamed assailants in particularly egregious unsolved cases where the statute of limitations was about to expire. In the California case, police filed the John Doe indictment a day before it would have been time-barred, then caught Paul Eugene Robinson and matched him up with the six Sacramento rapes and burglaries in the indictment. The Bloomberg project is different in that it seeks to do this as a matter of course, for all serious sexual assault cases, so long as the victim is willing to testify before a grand jury. This will eviscerate the statute of limitations for rape since every rape case in which there is DNA evidence will be put on permanent “pause.”

Statutes of limitations serve a valuable purpose—beyond Mayor Bloomberg’s contention that they merely exist to shelter criminals. They have been a tenet of common law from the time of early English civil law. Their express purpose is to protect defendants from having to defend against “stale” charges, since with time evidence degenerates, witnesses relocate, and memories fade. Except in murder cases, deemed too serious for a statute of limitations, the feeling is that too much time between the crime and trial invariably leads to moldy evidence and unreliable witnesses. Statutes of limitations essentially codify the Sixth Amendment guarantee of a speedy trial—ensuring that no defendant will be dragged into court 40 years after his alleged crime, without the wherewithal to mount a meaningful defense.

But DNA evidence never degrades, providing incontrovertible evidence that is as fresh after 40 years as it was when the crime occurred. John Feinblatt, the mayor’s criminal justice coordinator, observed at the press conference, “Of course, when we were dependent on people’s memories to identify somebody, the statute of limitations made sense. We no longer live in that world. In rape cases, defendants leave their identity behind.”

But this argument misses the point: Statutes of limitations don’t exist to keep the state’s case fresh. They exist to keep the defendant’s case fresh. All the justifications underlying the statute of limitations are in fact heightened when you have 30-year-old DNA evidence; the accused will have a nearly impossible time mounting a defense. Except now the prosecution has a silver bullet with which to convict him.

Here is where the proponents argue, “But this guy really did it.” The DNA proves that and he should go to jail. But the mere presence of DNA proves only that the accused was at the scene of the crime, and—even if it’s semen as opposed to, say, hair—proves only that he had sex with the accuser. DNA itself doesn’t “prove” rape. That’s what trials are for. We have not yet come to that moment in the law where scientific certainty moots the legal process, and we should not allow even “incontrovertible” evidence to throw off the carefully calibrated system of defendants’ rights.

Incontrovertible is in quotes, by the way, because another problem with DNA evidence is that there is little uniformity between labs in the various states with respect to collection, storage, and interpretation of DNA. So a match between DNA found in Michigan and a criminal apprehended in California does not necessarily mean that the police have their man. It may mean that labs are sloppy or that methods differ. Unlike fingerprint evidence, which is consistent from state to state, DNA evidence is still only as good as the methods used to collect it.

Another drawback of the John Doe warrants is that they are matched only to the state and federal DNA databases. Since there is no national DNA registry in place for all Americans (and I will move to Canada on the day John Ashcroft asks for one), the existing DNA databases contain only the DNA of convicted offenders. While some DNA fans seek to adopt the British system of collecting DNA from anyone ever arrested for a crime, or anyone in the area at the time of the offense—thus broadening the registry—the U.S. system currently does nothing more than catch recidivists. Not that there isn’t some value to apprehending recidivists; they should pay for each of their crimes. But one might question the utility of spending hundreds of thousands of dollars to apprehend people already either in jail or on probation. These are not the rapists I worry about.

Here’s something else to consider: DNA, unlike fingerprints, contains a vast amount of information, beyond just who you are. From your DNA, the government can discern a lot about your health and genetic makeup, for instance, and not everyone thinks the state should have access to that information. And not every state that promises to destroy old DNA samples does so; in Ohio a state DNA database reportedly retained more than 1,000 DNA profiles of people even after they were exonerated as criminal suspects.

The greatest irony in the New York plan is that investigators are already at work doing precisely what Bloomberg wants: searching DNA databases for samples that might match a criminal suspect. Hundreds of criminals have been apprehended in this way. The problem is that poor funding and disorganization has created a huge backlog in processing and logging these DNA samples. Reportedly in New York City there are 12,000 unprocessed rape kits (which include samples of semen taken immediately after the assault), and nationally a million DNA samples have been collected from criminals but remain unprocessed. The way to use these DNA databases fairly is to continue to try to match them to crimes. The way to abuse them is to interfere with statutes of limitations, on the chance that the state might someday get organized enough to match indictments to crimes.

Finally, proponents of general fairness will rightly ask: How is it that DNA evidence has been used to exonerate more than 50 prisoners—many on death row—yet should not be used to convict the real criminals? The answer, again, lies in the delicate balance imposed on the state and the accused in our justice system. The criminal defendant is presumed innocent. The state must prove guilt beyond a reasonable doubt. Using DNA to cast doubt on a conviction is simply not morally or legally equivalent to using it to hamper a defendant’s right to a fair trial. In this country we still believeor are supposed to—that it’s better to let 10 guilty men go free than to try an innocent one unfairly, many decades after his alleged crime.