published Monday, December 26th, 2011

Prosecutors indicting John Does through DNA

MEMPHIS — Tennessee law enforcement officials are using DNA evidence to indict unknown suspects as a way to stop the clock on statute of limitations, but some critics say the approach needs more legal scrutiny.

In Memphis, prosecutors are filing indictments that identify the defendant not by a name but by a unique DNA genetic profile, in the hopes that police will eventually find the suspect through a database. In a recent rape case filed in Shelby County, the John Doe DNA profile was gleaned from bodily fluids collected from the crime scene, The Commercial Appeal reported.

“There are a lot of them in the works that will be submitted to the grand jury,” said Jennifer Nichols, head of the District Attorney’s Office Special Victims Unit, who said using DNA as an identifier requires attention to detail. “It’s a lot of numbers and letters. I checked and rechecked to make sure I didn’t miss anything.”

“That helps us tremendously,” said District Attorney General Amy Weirich, “so we don’t run into any problems of the case being dead on the vine before we can even prosecute somebody.”

Tennessee Court of Criminal Appeals recently upheld the practice used in the case of Robert Jason Burdick, who was accused of raping more than a dozen women dating to 1994 in Davidson and Williamson counties, The Tennessean reported.

He was convicted in five of the cases, and a panel of judges upheld the first of those convictions to come up on appeal. In 1994, a woman in Nashville was sexually assaulted in her bedroom by an intruder. During the fight, she bit off a piece of skin from the assailant’s finger. Police used the skin to develop a DNA profile, but at the time it didn’t match anyone who had been entered in a national criminal justice database.

In 2000, as the statute of limitations neared, Nashville prosecutors filed an aggravated rape complaint against a “John Doe” along with the analysis of the skin sample. Burdick wasn’t developed as a suspect until 2008.

Tennessee Court of Criminal Appeals Judges Jerry L. Smith and Robert W. Wedemeyer wrote in the opinion that other jurisdictions “have found a John Doe warrant coupled with a DNA profile sufficiently identifies a criminal defendant so as to toll the statute of limitations.”

Burdick’s attorney, John E. Herbison, said he likely will seek to appeal it to the state Supreme Court.

“The purpose of an arrest warrant is to put the accused on notice that he’s been charged with something,” Herbison told The Tennessean. “A DNA profile doesn’t do that. No one is familiar enough with his own DNA profile to know he’s the one charged when that’s the only identifying information.”

These John Doe DNA cases have been used for about a dozen years, and courts have ruled in favor of the practice. But defense attorneys say more legal analysis is needed to make sure a defendant’s rights aren’t violated.

“What you’re doing is waiving the defendant’s right to a speedy trial and their right to call witnesses and to defend themselves adequately, which is impaired with the passage of time,” said defense attorney Bill Massey of Memphis, a past president of the Tennessee Association of Criminal Defense Lawyers. “It’s very difficult to defend a case that is 20 years old. Of course, they’re weighing that against the public’s and the prosecutor’s interest in catching, apprehending and punishing these individuals.”

Under state law, anyone convicted of a felony offense after July 1, 1998 must provide a biological specimen for analysis, which is entered into a national DNA database.

Tennessee Bureau of Investigation spokeswoman Kristin Helm said the agency has collected 193,000 DNA samples over the years. Those join about 11 million DNA profiles available to law enforcement in the Combined DNA Index System maintained by the FBI.

“I can tell you that Tennessee’s database has had approximately 1,000 hits that were passed on to law enforcement agencies since its inception,” Helm said, noting “hits” are considered investigative leads, rather than solved cases.

In Memphis the practice has been put in use by the newly formed Special Victims Unit, which focuses on serious crimes against children, the elderly and other vulnerable adults.

Massey said cases that involve DNA evidence can be difficult to defend.

“Assuming the testing is accurate, it’s hard to argue effectively with DNA,” the attorney said, “unless you have another expert who says the DNA does not match or that the odds of it being this person are substantial enough to create a reasonable doubt. Juries seem to give a lot of weight and credence to DNA experts. It’s unique.”

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