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?
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