DNA Warrants Expand Prosecutors' Toolbox

by Emmett Berg

A state Supreme Court ruling in a rape case may expand the use of DNA as a crime-fighting tool.

The January opinion in People v. Robinson (47 Cal. 4th 1104 (2010)) held that a "John Doe DNA warrant" - a warrant based entirely on biological evidence - meets particularity requirements of the Fourth Amendment and of Article I, Section 13 of the state Constitution, and also satisfies the statute of limitations.

There's no statute of limitations for homicide. But the perpetrators of other violent crimes and sexual offenses cannot be prosecuted if authorities fail to charge a suspect within a proscribed amount of time (currently from about three years in most felony cases to ten years for certain sex crimes). Now, the ruling in Robinson gives California law enforcement the ability to meet charging deadlines by using DNA gathered from a crime scene. So even when authorities don't know who the suspect is, they can substitute his or her genetic signature for the name on an arrest warrant.

The Robinson case originated in 2000, when a Sacramento police detective faced the statute of limitations on a 1994 rape. The detective discussed the ongoing investigation with Anne Marie Schubert, a supervisory deputy district attorney who had just read about the use of DNA warrants in Wisconsin. Schubert applied the same concept to a complaint in the rape case, filing charges just days before the statute of limitations was to expire. Two weeks later, after running the DNA profile through a criminal database, Schubert had a match. The suspect was identified as Paul E. Robinson, who became one of the nation's first defendants to be indicted - and later arrested - on the basis of DNA alone. (He was eventually convicted and sentenced to 65 years in prison.)

Prosecutors see DNA warrants as a natural application of science to criminal law. "The Supreme Court properly recognized that a DNA profile is at least as accurate, if not far more accurate, than any traditional means of identifying a perpetrator in an arrest warrant or complaint," says a spokeswoman for the California Attorney General.

But Justice Carlos Moreno, who wrote the dissent in January's Robinson decision, expressed concern that in this case DNA warrants had been used as a "clever artifice intended solely to satisfy the statute of limitations until the identity of the perpetrator could be discovered."

Lawyers also differ on the potential impact of the ruling. "This is a new mechanism to reduce crime," says Sacramento County's Schubert.

However, only a handful of criminal proceedings in California have depended on DNA warrants, and interviews with district attorneys across the state suggest that the Robinson decision has had little immediate effect on local law enforcement.

Still, Cara DeVito, the West Hills appellate attorney who represents Robinson, predicts that the ruling may ultimately affect an array of criminal cases. "Now," she says, "a clever prosecutor can probably try the same trick to escape the statute of limitations."

---