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Cold cases and Crawford

One of the realizations from the Anthony Sowell case here in Cleveland back in 2009 was that the City Police Department didn't have a very positive view of women, especially those claiming to have been raped.  Two years before the police would discover eleven bodies in Sowell's house and yard, a woman came to the police, alleging that Sowell had raped her.  The cops went to Sowell's house, but did nothing otherwise to pursue the case; the police chief later told newspapers that although the officers found blood in the home, they couldn't tell who it belonged to, causing me to lament at the time that it was too bad science hadn't come up with a way to test that.  Shortly after Sowell's eventual arrest came the news that the police department had several thousand rape kits, accumulated over the last couple of decades, which they'd never gotten around to testing.

In the better-late-than-never department, those kits have been sent out to BCI for testing, and some are getting hits on the national DNA database, leading to indictments.  There's a 20-year statute of limitations, so many cases are getting in just under the wire, with the indictment specifying John Doe as the defendant. 

While that's probably kosher, as long as there is some other information identifying the defendant, such as a DNA profile, the issue of pre-indictment delay presents a problem.  That's a difficult argument for a defendant to win:  he must show actual prejudice from the delay, not simply speculation that witnesses might now be difficult to locate.  Still, if a defendant surmounts that challenge, it's pretty smooth sledding.  The focus then shifts to the reason for the delay, and "we forgot about it and left it sitting in the evidence room" probably isn't going to cut it.  And, of course, there's the problem of trying any twenty-year-old case.  A month ago, the first such case to go to trial resulted in an acquittal, and the prosecutor's subsequent discussions with the jurors revealed that they had substantial difficulties in convicting based solely on the rape kit. 

But there may be an even bigger hurdle here:  what happens if the people who gathered or tested any evidence way back then are no longer around?  The Supreme Court's decision back in 2004 in Crawford v. Washington could have a major impact on that.

Crawford held that testimonial statements -- basically, statements made to law enforcement agents for purposes of investigation and prosecution of a crime -- are inadmissible unless the person who made the statement is subject to cross-examination.  The Court subsequently extended Crawford to forensic testing, holding in 2009 in Melendez-Diaz v. Massachusetts that the state couldn't simply submit a certificate from a lab analyst as to the type and quantity of narcotics; the analyst had to testify at trial.  Two years later, in Bullcoming v. New Mexico, the Court ruled that an analyst who performed blood/alcohol tests couldn't testify as to the results if he wasn't the one who actually performed the test.  The Court seemed to back off from that in its decision last year in Williams v. Illinois, deciding that the DNA profile produced by an independent lab could be used by an expert witness testifying as to the DNA comparison, even though no one from the lab appeared at trial.  But Williams (discussed here) was only a plurality opinion, and it left open the question that could arise in these cases, especially considering that the testing here is being done by a state criminal lab, not an independent one. 

The DNA testing is unlikely to be the issue in these cold cases:  the rape kits are just now being tested.  But Crawford problems could certainly arise with the collection of the evidence in the first place.  Normally, the prosecution shows the "chain of custody" with a particular piece of physical evidence:  the prosecutor will take the bag containing the drugs or whatever and show it to the police officer, who'll testify that he was the one who collected it, those are initials on the bag, and so forth.  What happens if you're talking about a rape kit that was collected by a nurse at a hospital twenty years ago, and she's no longer around?  What about the cop who took the kit from her?

And the identity of the analyst could come into play in another fashion.  Under Ohio law, all persons arrested for a felony, and for certain misdemeanors, have to provide a DNA sample, a procedure that was largely approved by the Supreme Court last summer in Maryland v. King (discussed here).  That sample is then analyzed to produce a profile, which is then stored in the national database.  So let's say that ten years from now, police investigate a rape, get a DNA sample, and send it down to BCI for testing.  And voila, it comes back that it matches the profile of John Doe, from a sample obtained from him in 2004.  Does the analyst who tested the sample and produced the profile fourteen years ago have to appear at trial?

Advances in science have essentially introduced the term "cold case" into the lexicon; it would've been almost impossible to solve a twenty-year old rape case in the 1970's or 1980's.  (And not just for lack of evidence; the statute of limitations for rape wasn't raised from six years to twenty until 1993.)  Prosecutors are learning the obstacles in proving guilt in such cases.  Crawford and its progeny could provide another one.

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