Killing Time: The Application of John Doe Indictments to Keep Cases Warm
Catherine M. Guthrie, Research Attorney
One of the greatest frustrations associated with cold cases is that, thanks to statutes of limitation, the mere passage of time can place guilty individuals safely beyond the reach of law. Specifically, "a statute of limitations reflects a legislative judgment that, after a certain time, no quantum of evidence is sufficient to convict."i In general, the clock starts to run from the time the crime was committed and is tolled, or suspended, by the commencement of a prosecution.ii Commencement requires an indictment (or arrest warrant, depending upon jurisdiction) against a specific individual.iii If a suspect is not identified and the deadline is not met, the accused becomes immune from action. It is hard to imagine a greater, and less deserved, reward for one's ability to remain anonymous.
Statutes of limitation were designed with multiple purposes in mind, all of which fall under the general goal of promoting justice through finality. The most commonly cited of these purposes include: (1) ensuring the use of fresh evidence, (2) encouraging prompt and efficient police work, and (3) generating closure and repose for both criminals and the community.iv However such laws can also arguably denigrate justice by arbitrarily and unsympathetically allowing criminals to avoid capture and punishment. This is significant in cold cases because, by definition, months, years or even decades have passed since the criminal act occurred.
Lawmakers have utilized the advent of DNA technology to create an innovative and increasingly popular solution: the John Doe indictment. Unlike their traditional counterparts, John Doe indictments use DNA profiles instead of names to identify individual suspects. As a result crime scene evidence such as semen or hair samples can be used to hold a case open for years, until a viable suspect is identified.
One of the earliest examples of this approach is a 1999 rape/kidnapping case in Milwaukee. The Assistant District Attorney in the case, Norman Gahn, successfully stopped the clock by identifying the perpetrator as "'John Doe, unknown male' with matching DNA 'at genetic locations D1S7, D2S44, D5S110, D10S28 and D17S79.'"v Other jurisdictions followed suit, as seen in both case lawvi and legislation.vii While this trend is usually seen in sexual assault cases (where both biological evidence and statutes of limitation are more prevalent), one prosecutor even expanded the use of John Doe indictments to homicide.viii
As with any new legal tactic, this trend is not without its critics.ix Opponents claim the use of a DNA profile does not describe the accused with enough particularity as required by the Fourth Amendment.x There is also concern about alleged due process and speedy trial violations.xi Nonetheless the approach has survived on appeal, as seen in the June 2006 case of State v. Danley.xii This case arose from a rape and robbery committed in 1998. The Danley court held that the state's warrant, filed in 2003, successfully tolled the applicable statute of limitation even though it only listed the suspect's DNA profile and gender. If this case is any indication, John Doe indictments will continue to grow as a popular tool in the investigation and prosecution of cold cases.xiii
iStogner v. California, 539 U.S. 607 (2003), citing U.S. v. Marion, 404 U.S. 307 (1971)
iiMeredith A. Bieber, 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 (January 2002)
iv Frank B. Ulmer, Using DNA Profiles to Obtain "John Doe" Arrest Warrants and Indictments, 58 Wash. & Lee. L. Rev. 1585 (2001)
v David Doege, Novel Warrant IDs Suspect Only by DNA: Databank Evidence Used to Charge ‘John Doe’ in Rape, Milwaukee J. Sentinel, Sep. 2, 1999, at 1
vi For example. see State v. Dabney, 663 N.W. 2d 366 (Wis. Ct. App. 2003)
viiScott Akehurst-Moore, An Appropriate Balance? – A Survey and Critique of State and Federal DNA Indictment and Tolling Statutes, 6 J. High Tech L. 213 (2006); Jonathan W. Diehl, Drafting a Fair DNA Exception to the Statute of Limitations in Sexual Assault Cases, 39 Jurimetrics J. 431 (1999)
viii Though the persecutor's goal involved arrest powers rather than statutes of limitation, the technique was the same. Sean Kelly & Marilyn Robinson, Killer is Still Nameless, but not Unknown, John Doe Warrants Based on DNA, Denver Post, Aug. 17, 2003, at A1
ix See for example, James Herbie DiFonzo, In Praise of Statutes of Limitations in Sex Offense Cases, 41 Hous. L. Rev. 1205 (Winter 2004)
xCorey E. Delaney, Seeking John Doe: The Provision and Propriety of DNA-Based Warrants in the Wake of Wisconsin v. Dabney, 33 Hofstra L. Rev. 1091 (Spring 2005)
x1 Id. and Andrew C. Bernasconi, Beyond Fingerprinting: Indicting DNA Threatens Criminal Defendants' Constitutional Rights, 50 Am. U. L. Rev. 979 (2001)
xiiState v. Danley, 853 N.E. 2d 1224 (Ohio Misc. 2006)
xiiiFor more information on this issue, see: Lisa Schriner Lewis, The Role Genetic Information Plays in the Criminal Justice System, 47 Ariz. L. Rev. 519 (Summer 2005); and John Doe Warrant