'John Doe' indictments keep cases open


Sunday, August 8, 2004 Posted: 6:16 PM EDT (2216 GMT)

BOSTON, Massachusetts (AP) -- Authorities once had no choice but to drop rape cases if they weren't able to catch a suspect before the statute of limitations expired. But prosecutors across the country increasingly are buying themselves time, keeping cold cases alive by indicting unidentified rapists using their DNA profiles.

Prosecutors in Boston began seeking these "John Doe" indictments last year after the state Legislature rejected an effort to abolish the state's 15-year statute of limitations for rape.

Suffolk District Attorney Daniel Conley's office has indicted the DNA profiles of three John Does who raped teenage girls in 1988 and '89 and is reviewing eight to 10 more for possible indictment.

"This preserves the viability of these cases and means they cannot be barred by the statute of limitations," said David Procopio, a spokesman for Conley.

"There is a possibility that one day the genetic profiles of these defendants will match a known suspect and we'll be able to hold them accountable for these crimes," Procopio said.

Getting an indictment without a named suspect would once have been nearly impossible, but with advances in DNA testing and the widespread acceptance of such evidence, more and more prosecutors are using the approach.

The trend began in 1999 in Milwaukee, where prosecutors were frustrated by the state's six-year statute of limitations on rape cases. Since then, they have indicted 15 John Does based on their DNA profiles. From those, they have made six arrests after the profiles were matched with people in a DNA database.

"We were going through all of our unsolved sexual assault cases and we kept getting these wonderful DNA profiles where we knew it was the person who committed the rape, but then we would see the statute of limitations overtake them, and it was very frustrating," said Norman Gahn, Milwaukee County Assistant District Attorney.

In one case, prosecutors indicted a John Doe profile seven years after the 1994 rape of a high school sophomore. Investigators later linked DNA found on the victim to Bobby Dabney, matching it to a sample obtained from him in 1996 when he was sent to prison for armed robbery.

Dabney was convicted and appealed, arguing the arrest warrant was invalid because it did not identify him by name. But last year, a Wisconsin appeals court upheld his conviction, saying DNA is the best means of identification available.

Prosecutors in New York started obtaining DNA indictments in 2000. The first was filed just four days before the statute of limitations would have lapsed.

"When people were dependent on memory alone to make these cases, the statute of limitations played a very vital role and a legitimate role, but we've traveled light years since then," said John Feinblatt, New York's criminal justice coordinator.

Civil liberty concerns

John Doe indictments are criticized by civil libertarians and some defense lawyers who say they are simply a way to circumvent the statute of limitations.

"I think there is a danger of a mistake being made," said Brownlow Speer, chief appellate attorney for the Massachusetts public defender agency. "And the question might be is there really a level of certainty that the depositor of the DNA is really the person who committed the crime?"

The practice has drawn some unlikely supporters, including defense lawyer Barry Scheck, co-director of The Innocence Project, an organization that has helped in more than half of the 146 cases nationwide in which wrongly convicted defendants were exonerated using DNA evidence.

"I'm in favor of a John Doe warrant based on a DNA profile where there's probable cause to believe that the person who was the donor of the DNA evidence was the perpetrator of a crime," Scheck said. "Then it seems to me a preferable practice to abolishing the statute of limitations."

Procopio, of the Suffolk DA's office, said investigators go through a painstaking process to decide which cases can be presented to a grand jury for a possible John Doe indictment.

"You can give a lot of hope and help to sexual assault victims because the chances of finding the rapist are better now than they have ever been with DNA databanking," said Gahn.

"The likelihood of getting a hit is very, very good these days."