Indicting John Doe: When all you have is DNA

Editor's Note: As part of CNN.com's new Crime section, we are archiving some of the most interesting content from CourtTVNews.com. This story was first published in 2002.

(Court TV) -- The man who murdered college student Linda Yalem also sexually assaulted seven other women in the Buffalo area between 1986 and 1994, police say. If he is ever caught, however, he can't be charged with any of the rapes. New York's five-year statute of limitations for sexual assault won't allow it.

To get around such limits, prosecutors across the country are taking a hard look at a relatively rare practice: issuing "John Doe" indictments which identify suspects only by their unique genetic code.

Milwaukee and Sacramento have led the way. Both communities arrested rape suspects long after statutes of limitations had expired because prosecutors went to court before the clock ran out and indicted the men's DNA.

By doing so, assistant district attorneys in effect began the prosecution without the defendants.

Judges have generally held that as long as the arrest warrant provides sufficient description of a suspect to ensure "reasonable certainty" of identification later, John Doe warrants are permissible. Proponents argue that DNA identification provides that certainty because everyone's genetic makeup is unique.

In August 2000, Sacramento prosecutors barely beat a six-year deadline and obtained a John Doe warrant for a man who left his DNA behind during a rape in 1994. A year later, a police computer matched John Doe's DNA with that of a 31-year-old man arrested in connection with unrelated crimes.

The defendant, Paul E. Robinson, fought unsuccessfully to get the indictment tossed on the grounds that his due process rights were violated. California's Supreme Court basically told Robinson to save it for a possible appeal. His trial was scheduled to begin November 26.

"The whole concept of filing John Doe warrants has been around for decades ... as long as you comply with a reasonable certainty," said Anne Marie Schubert, Sacramento deputy district attorney.

"The most advantageous thing about DNA is it is not subject to memory," said Schubert, the prosecutor assigned to the Robinson case.

Witnesses, however, are subject to memory. Critics of John Doe DNA indictments point to that as one of the reasons legislative bodies across the country established statutory limits to begin with. Memories fade and become less accurate.

Defendants tagged with old crimes based solely on DNA evidence can have difficulty marshaling exculpatory evidence, including alibi witnesses and other proof to counter accusations, recent Washington College of Law graduate Andrew Bernasconi wrote in a long article on the subject for the American University Law Review.

"The implications on it are very far-reaching in terms of its ability to confirm or reject people as suspects," Bernasconi said during an interview. "I'm a little bit torn on the issue. I think DNA evidence can be so strong and persuasive. On the other hand, there are so many other factors that go into it. How was it collected? Who collected it? Whether any others were investigated."

Anticipating that the issue might ultimately be heard by the U.S. Supreme Court, California and other states have passed laws that specifically allow statutes of limitations to be extended in cases where they have DNA and other conditions are met.

"I think the Supreme Court is going to rule that you can't do it," said Johnny Griffin, a former federal prosecutor who represented Robinson when he was arrested. Robinson's current public defender could not be reached.

Investigators in Amherst, New York, where Linda Yalem was killed, said they were not sure if prosecutors considered indicting their John Doe suspect's DNA to keep the seven other rape cases open. One thing they do know: the statute of limitations never runs out on murder. E-mail to a friend