Indicting John Doe
This is how bad it's gotten with the cold case rapes in Cuyahoga County: in nearly 90 cases, the prosecutor's office here has indicted someone's DNA profile, under a John Doe designation. The first test of that procedure came in last week's decision by the 8th in State v. Gulley, and it didn't go well for the State.
When I first heard about the tactic, I was skeptical that it could be used to avoid the statute of limitations. Shows what I know. Other states have been doing it for years. New York set up its John Doe Indictment Project in 2003, and it's resulted in 117 DNA indictments, with thirteen convictions and five pending cases; they still don't know the identity of 99 defendants. And the Gulley opinion cites no fewer than eight cases where the procedure has been upheld.
So where did the State come a cropper in Gulley? Actually, it almost didn't. The victim alleged she was raped on October 14, 1993, and almost 19 years later the police finally got around to sending out the rape kit for DNA testing. That showed DNA from an "unknown male." On October 11, 2013, just three days before the statute of limitations would have expired, the State indicted John Doe, attaching the DNA profile obtained from the rape kit. The profile was matched to Gulley in January 2014, and two months later the State amended the indictment to name him.
The trial court didn't have a problem with this, denying the motion to dismiss on statute of limitations grounds, but granting it for pre-indictment delay. Two members of the panel agree that the case could've been dismissed on the latter basis, but all three agree that the State blew the statute of limitations. Why? Because the State knew Gulley's identity all along: not only had the victim provided Gulley's name as her assailant, but the police had interviewed him, and had his name and address. In fact, the victim had identified Gulley in a photo array three days before the indictment was handed down.
The eight cases cited in the opinion all dealt with situations where the defendant's name was unknown. That's not the case here. As the court notes, "inefficient and dilatory law enforcement was the reason the statute of limitations expired."
That limits the effect Gulley has on the other John Doe cases; presumably, not all of them were necessitated by the sloth of the Cleveland police department in handling rape cases back in the 1990's. But the fact that this was a case of police sloth leaves open the question of whether a John Doe indictment is indeed permissible. CrimR 4 allows a warrant to be issued if the defendant's name is unknown, as long as it contains "any name or description by which the defendant can be identified with reasonable certainty." CrimR 7, though, which deals with indictments, has no similar language.
And there is a constitutional issue here. One of the purposes of an indictment is to provide the defendant with notice that he is being charged. It's one thing if you indict a John Doe and include a physical description or last known address; arguably, somebody having that description or address can know that he's being accused of a crime. I think you'd be hard-pressed, though, to find anybody who knows their DNA profile.
So the issue's arguably still in play.
Gulley also provides a tip for appellate lawyers. The only thing argued in the appellate briefs was the issue of pre-indictment delay. After argument, the court ordered briefs on the statute of limitations issue. It could have been argued by the defendant in the initial brief. Keep in mind that you don't need to file a notice of cross-appeal if you're simply trying to have the judgment affirmed on alternate grounds.