http://dailynews.yahoo.com/h/nm/20000316/od/dna_1.html
So they indicted a genetic profile, which ultimately corresponds to a person, what does that mean? Can they now put the person X who has the genetic fingerprint on trial and determine his guilt or innocence?
No. What the prosecution is doing here is beating the statute of limitations. Your link states that the first rape took place in 1995. My guess is that there is a 5 year limitations period for rape in NY. If so, and they didn’t indict before the 5th anniversary of the crime, prosecution of that rape would be forever barred.
If and when the rapist is found, then he will be tried, but not now. (Due process requires notification to the defendant and an opportunity to present a defense.)
I wonder if New York has a speedy trial statute - and if they do, whether delay due to the genetic material not yet being matched to the person is chargeable to the defendant? They may beat the statute of limitations only to fall prey to speedy trial!
Random, thank you for the analysis.
No problem, Glitch.
Bricker, that crossed my mind, too. Guess we’ll find out, because New York is not the first jurisdiction to indict a genetic profile. Someday soon, one of these profiled rapists will be caught, and his attorney will no doubt raise this issue.
What are you guys talking about? I thought speedy trial and statue of limitations were the same basic thing.
Today for you, tomorrow for me.
Well, no, Angel, they’re not. A criminal defendant has a constitutional right to a speedy trial, under the Sixth Amendment to the U.S. Constitution. That means that the State (or Fed. government), charging an individual with a crime, must bring that individual to trial within a reasonable time. In my jurisdiction, a delay of 200 days is presumptively prejudicial, and the State must then justify the delay.
The statute of limitations is the amount of time allowed by law for a criminal or civil action to be brought. For example, if an assault is commited, the State will have a given amount of time (say, three, five, or seven years) in which to charge someone with that crime. After that time expired, no action may be brought under that set of facts, because the incident is deemed to have occurred too long ago. (Some crimes, notably murder, do not, in some jurisdictions, have any statute of limitations.)
In other words, the statute of limitations deals with the length of time between the crime and the act of charging someone with the crime – it is implicated before charging. The speedy trial provision deals with the length of time between the act of charging someone with the crime and trial – it is implicated after charging.
As usual, I welcome correction from other knowledgable parties, and am confident I will receive it. 
Jodi
Fiat Justitia
Jodi,
No corrections from me – you’re right on the money.
Just to expand slightly on one point – above, I used the phrase “chargeable to the defendant.”
Let’s assume we’re dealing with a limit of 200 days between arrest/indictment and trial. All of those 200 days must have been used by the government.
If the defendant waits until the week before trial, and then file a motion to change venue (a request to the court to move the trial somewhere else). His motion will be heard and acted upon, but if it takes 15 days for the court to decide the motion, he’s past the 200 days, and home free, right?
Not at all. The fifteen days of delay is “chargeable” to him - that is, it’s not the government’s fault. So his rights to a speedy trial have not been violated - he himself caused some delay.
So what I was asking above, simply put, was this: does delay because the government hasn’t matched the genetic profile to an actual person count as a delay caused by the government or by the defendant? Remember that a defendant has no duty to bring himself to trial; he is not obligated to step forward and say, “Oh, that’s probably my DNA – let’s go to trial.” On the other hand, this delay isn’t due to bad faith on the part of the government – they are clearly trying with due diligence to complete their investigation and match a person with the profile.
It’s an interesting question… and, as Random suggested, one that won’t get definitively resolved until a court rules on it.
BRICKER says:
This is not strictly correct, at least not in my jurisdiction. There are four factors considered when evaluating a speedy-trial challenge: Length of the delay; reason for the delay; assertion of the right by the defendant; and prejudice to the defendant. In my jurisdiction, the Supreme Court has held that any assertion of the right to a speedy trial prior to trial is a timely one. In other words, you can wait until the day before trial to assert the right, because, again, it’s not up to the defendant to assist in his or her own prosecution by prodding the State (or Fed.) along. Delay occasioned by the time the court takes to hear the motion (or docket the case, or set it for trial, or whatever) is “institutional” delay, and is also charged to the State – not the defendant – but of course the courts will not weigh such delay as heavily as delay truly caused by the State (as opposed to the courts). In your example, therefore (and, again, speaking only for my own jurisdiction), the assertion of the right by the defendant would be timely, and the 15-day delay would be charge to the State as institutional delay.
MY WAG as far as YOUR question is concerned is that a delay caused by any aspect of the State’s investigation would be chargeable to the government. Certainly it would not be charged to the defendant. My understanding of speedy-trial cases is that the “good-faith” defense only goes so far – if the delay is unreasonably long; the defendant asserts the right; and the defendant can show the delay has prejudiced him/her, I don’t think the State can escape dismissal on speedy-trial grounds simply because they were doing the best they could. I think problems arising from the crime lab would probably be considered under “reason for the delay,” but since it is the defendant’s constitutional right that is implicated, I don’t know how far an “it’s not our fault” excuse would get you – again, speaking only for my own jurisdiction.
Jodi
Fiat Justitia
Actually, according to a women's group that is heavily involved with this string of rapes, the first rape took place over 5 years ago, and is therefore not prosecuteable.
Cartooniverse
If you want to kiss the sky, you’d better learn how to kneel.
jti-
The four factors you mention are right out of the US Supreme Court’s Barker v. Wingo, and I’m familiar with them in the context of analyzing a delay claim under the Sixth Amendment.
In Virginia, the right to a speedy trial is governed by Virginia Code § 19.2-243, which in general provides that if the accused, if held in custody, is off the hook if there is no trial within five months, and if not held in custody, nine months is the magic number.
The clock starts at the probable cause hearing, or if the PC hearing is waived, from the date of the indictment or information.
However, certain criteria or events toll the running of the clock, such as the accused’s insanity or his confinement in a hospital for care and observation, his motion or concurrence for a continuance, or his failure to object to the Commonwealth’s request.
The statute doesn’t specifically hold defendant’s pre-trial motion delay against him. But – the reasons for excusable delay listed in the statute are not exclusive Stephens v. Commonwealth, 1983). A delay can be due to one of the reasons specified in the Code, or a reason of a similar nature, and will not bar a later trial. (Bunton v. Commonwealth, 1988).
Also worth noting: there have been several cases in Virginia that upheld the Commonwealth’s right to nolle pross the original charges and re-indict when they ran into speedy trial problems. See Brooks v. Peyton (1969).
The general rationale is that once the nolle pross motion is granted, the defendant is released from custody (or the terms
of his bond) and is free. While admitting this gives the Commonwealth an opportunity to gather more evidence, it does not amount to an “unlimited continuance” because the
defendant theoretically no longer suffers the consequences of being under indictment. Yeah, right.
In general, my speculation on the change in venue motion was true (or at least defensible) in Virginia. This is not the best state in the country when it comes to speedy trial rights.
D’oh!
For some reason, I said “jti” above when I meant to say ‘jodih’. Sheesh.
Ok, I’m gonna jump in and take a shot at the legality of the attempt to indict a person based on genetic code. (And Young steps up to the plate, pounds the plate with the bat, and takes a mighty swing…) 
It won’t work.
Rationale:
If it would work, ya coulda done it with fingerprints long ago (yes, their not as ‘unique’ as genetic material, but we ID with them all the time, and they can be matched to a suspect later). Perhaps someone can come up with a case that allowed fingerprint idictment; I haven’t found one.
It doesn’t address the main reason for a Statute of Limitations. A statute of limitations is a protection for people granted by a sovereign (it isn’t constitutionally mandated that you have one). How, then, does initiating an ‘action’ against an unknown person by saying that you’ll know who he is when you find him accomplish the goals of such a statute?
DNA coding is still simply evidence of a person only, not a person in his or her own right. Again, there are paralells. The prosecution couldn’t indict a person based on a photograph that they had of an otherwise unknown person, and assert that they’ll actually prosecute once the person in the photograph is found.
I have, by the way, eschewed my usual lengthy discourse of case law in the hopes that the TM will be more willing to read an answer that doesn’t include 30 seconds or more of transmission and Nanobyte-ian length reading. I’d like someone to attack the assertions made here; caselaw if you wish, rational thought always.
Interesting points.
With the disclaimer that I’m not licensed in New York… I have found and read through the bewildering CPL 30, which is New York’s effort at codifying both the statute of limitations (CPL 30.10) and the speedy trial rules (CPL 30.20-30). They may be found on-line here.
So far as I can tell… the prosecution for a felony that isn’t murder must commence within five years (CPL 30.10(2)(b)). Subdivision 4(a)(ii) excludes time in which “the whereabouts of the defendant were continuously unknown and continuously unascertainable by the exercise of reasonable diligence. However, in no
event shall the period of limitation be extended by more than five years
beyond the period otherwise applicable under subdivision two.”
So the speculation that they were trying to avoid the statute of limitation would appear to be correct.
Turning our attention to DSYoung’s points, which I will restate for convenience: An indictment must specify a person, not merely characteristics of a person, no matter how unique those characteristics are (points 1 and 3), and that proceeding in this fashion flouts the protections granted by the statute of limitations, making it meaningless (point 2).
As to the first argument: I waded through CPL 100, which lays out the different kinds of accusatory instruments in New York (a grand jury indictment, an information, a simplified information, a prosecutor`s information, a misdemeanor complaint, or a felony complaint.) Sheesh! The characteristic that they all share in common (see here) is the definition that the accusatory instrument must “charg[e] one or more persons with the commission of one or more offenses…”
A person - not a genetic profile - must be charged. What is a person? According to Black’s, a person is “1: natural person, 2: the body of a human being, 3: one (as a human being or corporation) that is recognized by law as the subject of rights and duties.”
But when we charge a person in an indictment, we do so by name. It is of no moment if our mopery indictment charges “Bill Clinton, US President” or “William Jefferson Clinton, 1600 Pennsylvania Ave” with the crime; either phrase accurately identifies the person charged.
So the dispositive question becomes: does the genetic profile used in the indictment serve the same purpose as the name? Does it clearly and unambiguously identify the accused individual?
It does not. A primary purpose of an indictment is to provide the accused with a fair notice of the charges and an opportunity to construct his defense. In this case, the “genetic profile” is meaningless to anyone except a genetics expert. It does not cimmunicate to the accused or to the public who the accused is.
It may be suggested that the accused already knows who he is, by virture of being guilty. But we cannot put the cart before the horse. Moreover, this DNA evidence does not assure guilt. What if the had devised a way to deposit someone else’s genetic material at the scene of his crimes, for example? An indictment naming an innocent party would afford that party the chance to come forward; this indictment does no such thing.
I would argue, then, that based on New York’s laws (as I read them, not being a New York lawyer), do not permit an indictment of a person identified only by a genetic profile.
As to the second argument (this flouts the protections granted by the statute of limitations, making it meaningless): I agree as well. As DS correctly points out, the legislature has granted certain rights to the people of New York by way of a stuatue of limitations. These rights, even though not Constitutionally required, cannot be arbitrarily revoked once granted. They are not trivial: it would be very difficult to defend against a charge of robbery from thirty years ago – where were you at the time? What’s your alibi? Witnesses that might have cleared you are now dead or moved away, or their memories are simply faded and of little use. Records are destroyed and thus likewise useless.
Proceeding in such a way in the circumstances presented by this case would eviscerate the intent of the statute and completely negate its efficacy.
I just wanted to point out, with pride, that my previous post completely killed this thread.
Man, am I good.
Not good enough. I have a follow-up, if only slightly related.
What if a person is accused of a crime, is arrested and charged, then escapes and flees the country? Then it takes some time to capture and return the accused. Does his right to a speedy trial mean he gets off the hook for that charge simply for running away?
I know he would face charges for evading the law, etc (what those would be I’m not sure). But my point is assume you have some serious charge against you. Could you use this method to escape penalty for that charge and face a “lesser” charge with a more minor penalty upon recapture?
My curiosity burns.
I understand that this practice has been undertaken also in Illinois, in order to avoid the statute of limitations. Many states are currently reconsidering these statutes, in light of the way that DNA evidence in particular does not “go stale” in the way that, say, eyewitness testimony does. (Of course, eyewitness testimony pretty much reeks in general, even twenty minutes after the witnessed event, but that’s another story…).
Anyway, a buddy at the Justice Department suggested that these would ultimately be upheld as satisfying the requirements of identification and notice, because the person who did the crime knows it, and official indictment of that person’s genetic profile (which the indicted “person” knows to be their own, I suppose) would serve precisely the same purpose.
Of course what they need to do is drop the statute of limitations for all sorts of crimes besides murder, rather than doing an administrative end-run around their states’ laws, but getting things through the legislature does take time.
Ooh, I love your magazine. My favorite section is `How to increase your word power’. That thing is really, really… really… good. – Homer, ``Mr. Lisa Goes to Washington’’
Wow. This was my first venture into General Questions and I found this fascinating thread.
First off, do you mean it is actually… “gasp”… safe to come out of the woodwork and confess to being a member of the legal profession around here? Amazing! Rarely have I seen a message board where anyone would voluntarily and freely admit to being a fine member of the legal community!
Second of all, this is a great thread.
Third of all… just a quick note on the scenario of the defendant being caught and charged, then escaping and the question of whether he could “get off” on speedy trial grounds. The short answer to that is “NO.” As Bricker has pointed out above, certain pre-trial time is counted “against” the defendant in computing speedy trial time. If he escapes from prison and flees, I’m confident in saying that in every jurisdiction, the time until he is caught again would be counted against him.
Last… I noted somebody above making a comment on there not being a constitutional basis for the right to speedy trial. This is not true. It’s in the Sixth Amendment. If I somehow misread the post that I thought said there was no Constitutional basis, I apologize.
Just a coupla quick thoughts… great thread, though!
–I am Soren Kierkegaard.–
“People demand freedom of speech to make up for the freedom of thought which they avoid.”
I may not be a lawyer, but I’ll stack my ability to use logic against anyone’s.
First, thought, I would be much obliged if all you legal eagles out there explain any estoteric legal terminology for us humble lay people. Specifically, what the heck is “nolle pross”?
Doesn’t matter. As Bricker notes, the time he spent evading recapture is charged to himself, not to the government, and doesn’t count against the speedy trial provisions.
Why wouldn’t any form of indirect identification work? Specifically you might indict “the person who committed this crime.” That certainly does define one specific individual, and the individual knows he committed the crime.
Bricker again notes that “a primary purpose of an indictment is to provide the accused with a fair notice of the charges and an opportunity to construct his defense.”
The government always knows that someone committed a crime. But the indictment shows that the government knows which specific someone, and, more importantly, lets that someone know that the government knows who he is. This is clearly not the case, even if the perpetrator actually knows his genetic sequence.
An important property of an ordinary person is that they can be found at will. If I’m identified by name, unless I take abnormal precautions the government can find me immediately. I would submit that a valid identification would have to fulfill this “ordinary findability” requirement.
IIRC, people can be indicted in absentia. What are the speedy trial and statute of limitations consequences of such an action? How does this illuminate the question at hand?
Time flies like an arrow. Fruit flies like a banana.
It’s verbal shorthand for nolle prosequi, which is a motion by the prosecution to drop the charges. In general, it may be made by the prosecution at any time before jeopardy attaches at a trial, and the prosecution is typically free to re-file those charges later.
Ordinarily, jeopardy attaches at a jury trial when the jury is sworn in, and at a bench trial when the judge begins hearing evidence. At that point, dropping the charges would implicate protections against Double Jeopardy.
If the prosecution seeks to evade the requirements of a speedy trial law by nolle prossing and then refiling charges, a judge may dismiss the charges with prejudice. This means that the prosecution is not free to refile.
A statute of limitations limits the time that may elapse between crime and indictment. A speedy trial law limits the amount of time that may elapse between indictment and trial. It is of no moment that the defendant is indicted in abstentia; the moment the indictment is handed down, the speedy trial clock begins to run.
In the case of a defendant still absent as the clock runs down, there is nothing to prevent the prosecution from dismissing and reindicting him when he’s found… assuming the statue of limitations hasn’t saved him. A defendant voluntarily in hiding may well have the time he spends evading service of the arrest warrant charged against him.