Thursday, February 14, 2008
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S.C. to Decide Whether DNA-Based Prosecution of ‘Doe’ Was Timely
By KENNETH OFGANG, Staff Writer
The California Supreme Court yesterday agreed to decide whether a rape charge filed just prior to the expiration of the six-year limitations period was timely, where the defendant could only be identified at the time by his DNA profile.
At their weekly conference in San Francisco, the justices unanimously granted Paul Eugene Robinson’s petition for review. The Third District Court of Appeal, in an Oct. 26 opinion, affirmed Robinson’s convictions on charges of forcible oral copulation, two counts of penetration with a foreign object, and two counts of rape in connection with an August 1994 attack on a Sacramento woman.
The case was prosecuted on the basis of a felony complaint filed in August 2000, four days shy of six years from the date of the attack, charging “John Doe,” an “unknown male” with a specified 13-locus DNA profile developed from semen taken from the victim.
About three weeks after the complaint was filed, the state Department of Justice lab reported a “cold hit,” matching a DNA profile taken from Robinson in 1999 while he was serving time for spousal battery in a county facility. An amended warrant, inserting Robinson’s name in place of the John Doe identification and DNA profile, was issued and he was arrested within days.
The criminal complaint was similarly amended to name Robinson as the defendant, and to add multiple felony charges involving another victim. After failing to obtain a dismissal on statute of limitations grounds, the defense argued at trial that the DNA evidence was insufficiently reliable to establish guilt.
Prosecutors presented expert testimony that the probability of a 13-loci was one in 650 quadrillion in the African American population, one in six sextillion in the Caucasian population, and one in 33 sextillion in the Hispanic population—The victim testified that her attacker could have been Hispanic or a light-skinned African American—and that there were no reported cases of two people matching at all 13 loci other than identical twins.
Jurors convicted Robinson on the five counts arising from the 1994 attack and found that he used a knife during the commission of the offenses. The other charges were dismissed after jurors deadlocked.
Judge Peter Mering sentenced Robinson to 65 years in prison, the maximum on each count and each enhancement allegation, describing the defendant—who had been allegedly convicted of 15 felonies that could not be used for enhancement purposes because they occurred after the 1994 incident—as a sophisticated serial rapist.
On appeal, Justice Coleman Blease said the prosecution was timely under Penal Code Sec. 804(d), which stops the limitations clock when an arrest warrant is issued “provided the warrant names or describes the defendant with the same degree of particularity required for an indictment, information, or complaint.”
Sec. 815, the justice noted, specifically permits the use of warrants designating the suspect by a fictitious name as long as the person is described with the required particularity.
A DNA profile qualifies as a sufficient description, Blease said, “because DNA is the most accurate and reliable means of identifying an individual presently available to law enforcement.”
DNA matching is not infallible, the justice acknowledged. “But infallibility is not required for issuance of a warrant...or a charging document,” he wrote, noting that the Court of Appeal has held that minor descriptive errors in an indictment do not deprive the trial court of jurisdiction.
“Given the mobility of our society, the availability of plastic surgery and other medical procedures and devices that may alter physical characteristics, and the growing problem of identity theft, unlike a person’s DNA profile, all other identifying criteria are subject to theft, change, or alteration,” Blease said.
Blease rejected the defense argument that a DNA profile does not qualify as a description, since it does not provide information that an officer can use to visually identify the suspect.
“Defendant confuses the requirements for issuance of a warrant with those necessary to execute one,” the jurist wrote.
The high court also granted review as to whether Robinson might be entitled to a remedy because spousal battery was not one of the qualifying offenses for which the DNA and Forensic Identification Data Base and Data Bank Act of 1998 permitted the taking of a DNA sample.
The Court of Appeal held in an unpublished portion of its opinion that the violation was not constitutional in nature and that suppression of the sample was not required.
As to another issue, whether the methodology used to determine that Robinson was the perpetrator was so novel that the trial judge should have held a Kelly hearing on its scientific validity before admitting it, the court granted review but deferred briefing because a similar issue is before the court in another case.
Copyright 2008, Metropolitan News Company