Prosecution by DNA: New tool revives old cases

DNA technology is revolutionizing police work, and the criminal-justice system is struggling to catch up with it.

As the science - which can extract a person's genetic code from skin, hair, or fluids - is honed to near-precision, states are reconsidering rules of prosecution forged in an era of old-fashioned detective work.

Just last week, New York police beat a five-year statute of limitations by a matter of days to indict a serial rapist based solely on a DNA sample. The suspect's name is still unknown. Also, officers in White Plains, N.Y., used DNA to charge a jailed bank robber with a 21-year-old murder.

Now, several states are abolishing statutes of limitations on many violent crimes so that never-solved cases can be put to the scrutiny of DNA testing.

While prosecutors are delighted at the prospect, critics say it could wreak havoc, introducing what could be contaminated, poorly kept evidence, and asking witnesses to recall events that occurred years, if not decades, ago.

Either way, the new laws could herald a significant shift in law-enforcement priorities, as more money is sought to help overtaxed DNA units reopen old cases. Beyond that, the moves indicate how DNA research is becoming an ever-more indispensible tool in all areas of law enforcement.

New Jersey, Nevada, and Florida have already repealed time limits for charging sexual assault. Other states, including New York, are considering scrapping time limits on felonies such as manslaughter, rape, and robbery.

Defense lawyers and civil libertarians oppose allowing old evidence to be tested for DNA. The key issue is how the DNA samples have been handled and preserved over the years. In the O.J. Simpson case, for instance, the prosecution's case unraveled when the defense showed that some of the evidence had been sloppily handled.

The same thing is true in sexual-assault cases, critics say, where police call the preserved evidence "rape kits."

"We have no idea how these kits have been stored, whether the evidence has been degraded," says Kathryn Kase, president of the New York Association of Criminal Defense Lawyers.

DNA advocates agree proper handling can be a problem.

"You can't drag bodies through the evidence and expect it not to be contaminated," says Howard Safir, New York City police commissioner. But he says law-enforcement officials are learning to handle DNA evidence reliably: "It's not brain surgery."

Older kits were packaged before police followed strict protocols, so Mr. Safir says prosecutors would have to establish at trial how evidence was handled.

Other concerns raised by opening old cases have nothing to do with DNA.

Ms. Kase insists it is unfair to require the accused to defend themselves decades after a crime occurred. "I defy anyone to tell me where they were 20 years ago off the top of their heads," she says.

Also, questions of consent cannot be answered by technology. "It's totally unreasonable to go to someone and say, 20 years after the fact, 'Who were you with, and under what circumstances?' " says Kase.

More broadly, the onward march toward greater use of DNA in police work is raising questions about how the criminal-justice system will cope.

States and the federal government are already moving toward creating a comprehensive DNA database for criminals. While all states now mandate DNA testing of some convicted criminals, New York law-enforcement officials want to go further and require that every person convicted of any crime under state law provide a sample. Louisiana already allows police to take samples from anyone arrested there, something New York's Safir has advocated as well.

The FBI is also developing its own comprehensive cache of criminal genetic codes, and the eventual goal is to hook all the different state and federal stores of information together.

"You'll be able to link violent unsolved offenses even when they cross state lines," explains Paul Bresson, an FBI spokesman.

But some observers aren't sure law-enforcement officials will be able to cope with the influx of cases. In New York State, for example, 75,000 DNA samples are waiting to be tested, and a proposal by Gov. George Pataki (R) would require testing another 126,000 people each year. Mr. Pataki is seeking more than $12 million from the state to fund the plan, and a federal bill pending in Congress would appropriate $30 million for DNA testing.

That's not nearly enough, says Safir.

Even victim advocates are wary of viewing DNA as a panacea. "People shouldn't get too excited about how rapidly it's going to make a difference," says Anne Liske, executive director of the New York State Coalition on Sexual Assault. "There has to be financial support for keeping the labs running. The system is overloaded."

Yet even some defense attorneys see promise in DNA - for proving the innocence of people wrongly convicted. So far, inmates are not entitled to DNA testing, even if it could prove their innocence.

DNA has proved the innocence of 70 prisoners, and Sen. Patrick Leahy (D) of Vermont has sponsored a bill to make it easier for prisoners to obtain DNA testing.

Law enforcement is not opposed to such efforts. "We're on the same page," says Safir. "This is a powerful tool to prove guilt and innocence."

(c) Copyright 2000. The Christian Science Publishing Society