Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

Attorney Sam’s Take: Boston’s SJC Rules On “DNA Indictments” In Rape Case

On Friday, I told you that there were two decisions handed down by Boston’s Supreme Judicial Court that I wanted to address with you. The first, having to do with a murder conviction, had to do with jury bias. The second has to do with the topic of DNA and the statute of limitations, particularly in cases involving rape and other sex crimes.

It also has to do with hypocrisy.

The SJC has now ruled that prosecutors can indict suspects known only by their DNA profiles and bring them to “”justice years later when police identify who the genetic material belongs to, even if the statutes of limitation have lapsed.

This was a big decision and is being regarded by many as the next logical step in our evolving criminal justice system of the 21st century. It is the first decision of its kind in Massachusetts. The Court concluded that a DNA profile is an “indelible ‘bar code’ that labels an individual’s identity with nearly irrefutable precision.” As such, it can serve as the identity of the person indicted, even though the charging document lists the unknown defendant as “John Doe”.

The ruling is consistent with the state of the law in several other states.

You see, the issue here is the statute of limitations applicable to various matters. Said statute sets a time bar, similar to civil matters, within which a case can be brought against a particular defendant. Every crime has a statute of limitations except in cases of murder. There is no statute of limitations on murder.

Suffolk District Attorney Daniel F. Conley, whose office prosecuted the alleged rapist at the center of the appeal, said in a statement that the decision “brings Massachusetts law up to speed with a field of science that advances every day.”

It was the case of 37-year-old Jerry Dixon of Dorchester (hereinafter, the “Defendant”) that brought this issue up to the SJC. The Defendant was arrested in July 2008 in connection with two aggravated rapes in March and July 1991. Both complainants indicated that they had been threatened with a knife. The first woman was raped and beaten in a wooded area near Townsend Street, said prosecutors, the second behind an Amory Street building in Jamaica Plain.

Boston police collected biological evidence after both attacks, but the technology to develop a genetic blueprint of the suspects was not yet available.

In 1992, a Boston man named Anthony Powell was convicted of the March rape. He served 12 years in prison before DNA evidence proved that he could not have committed the crimes, and he was freed. Then in 2006, days before the 15-year statute of limitations expired on the rapes, the prosecutors, through a Suffolk County grand jury, indicted an unknown subject, listed as “John Doe”, based on DNA evidence collected at the crime scenes.

Over time, authorities traced the genetic material to the Defendant, who was serving a prison sentence for an unrelated crime and had provided a DNA sample, as required for state prisoners. Prosecutors then amended the indictment to replace John Doe with the Defendant’s name.

Early last year, Dixon’s lawyer asked Suffolk Superior Court Judge Peter M. Lauriat to dismiss the indictment on the grounds that the statute of limitations had expired by the time her client was named. Lauriat asked the state Appeals Court whether she was right, and the Supreme Judicial Court took the case itself.

Writing for the court, Justice Robert J. Cordy said a John Doe indictment based on a DNA profile is an “entirely different species” from a John Doe indictment based on a general description.

“Unlike the general John Doe indictment . . . an indictment of a person identified by a DNA profile accuses a singular and ascertained, but simply unnamed individual,” he wrote.
The ruling sets the stage for the Defendant to be tried for both rapes soon. The case is scheduled for a court hearing later this month.

Attorney General Martha Coakley…not the prosecutor’s office involved…could not be happier. Reminiscent of the Child-Indicttress Of South Hadley, Coakley immediately released a public statement claiming that “We’re hopeful that we improve our technology… improve our ability to identify people… also to exculpate people. This is also a great step forward to make sure that, as we saw in the past with wrongful convictions, that we get it right.”

Oh, really?!?

A View From The Trenches:

Ms. Coakely is one of those prosecutorial politicians I often refer to. She has long been heading prosecutorial offices. And so, she not only has a bias (as most human beings do), but also a great deal of experience. Therefore, it is mesmerizing that she would go on record praising an ability to free the innocent who have been imprisoned for crimes they never committed through DNA testing.

Don’t get me wrong…one would hope to hear that the political heads of prosecutorial offices would feel that way. The duty of a prosecutor is, after all, to seek justice. But I live in a strange little land called “Reality”.

In Reality, when convicted defendants seek to challenge a conviction based upon newly discovered evidence, such as DNA or even confessions of someone else to lying at trial, prosecutors oppose those motions. Worse yet, when convicted defendants seek to test DNA to prove their innocence because, as in the case involved here, it was not possible to do so at the time of their trial…prosecutors even oppose letting them do that!

Ms. Coakley know this, even participated in it, or she has been asleep for a long, long time.

Or perhaps she has not visited the strange land of Reality for awhile. The quote does make her look nice and even-handed though, doesn’t it?

The problem is, Ms. Coakley, that disingenuousness fails to impress in Reality.

While many may think that this ruling is simply the logical progression of the law to catch up with technology, let’s look at the reason for things such as statutes of limitations in the first place.

Law enforcement get in on ground zero when it comes to criminal investigations. They get the statements they want to get (often ignoring the statements they want to lose) and are able to capture fresh evidence from the scene.

At some point, usually sooner than later, they will arrest someone and when that someone’s lawyer asks about some of the evidence that could have been seized or evidence they do not want to share, they are generally able to smile and say “trust us”.

Apparently, trusting them in many cases brings about the result experienced by the first accused gentleman who went to trial for one of the rapes for which the Defendant now stands trial. It turns out he was innocent. However, it also turns out he served many years before he was able to show that.

By the way, I wonder how hard the prosecutors fought against his getting access to test the DNA or to get released. After all, 11 years can be a mighty long time…!

But I digress.

The statutes of limitations were created so that the accused might have the ability to fully defend themselves. Imagine that you are at the dinner table with your family, and law enforcement comes a-knocking at your door to take Uncle Albert to jail to face charges on something that they say he did 33 years ago.

It’s going to be interesting to try to gather “fresh” evidence or anything that law enforcement felt they did not need on that case, don’t you think? Do you think potential witnesses (those still living, that is) still have reliable memories?

The dangerous part of the SJC’s ruling is that seems to presume that if a defendant is accused with DNA evidence, they are probably guilty anyway so they can rely on their own memory and should have seen this day coming anyway.

Just another erosion of the presumption of innocence, that’s all. At least they were pretty honest about it. Unlike certain prosecutorial politicians…!

Political hypocrisy aside, this is but one more reason to take a criminal allegation…any criminal allegation…very seriously. You want to have an experienced criminal defense attorney on your side who knows how to fight for your eroding presumption of innocence. If you would like that attorney to be me, please feel free to call me to arrange a free initial consultation at 617-492-3000.

To view the original story in which parts of this blog were based, please go to : http://www.boston.com/news/local/massachusetts/articles/2010/12/10/sjc_ruling_extends_reach_of_dna_cases/# and http://boston.cbslocal.com/2010/12/10/sjc-ruling-dna-no-longer-falls-under-statute-of-limitations/

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