Silent Witness - Volume 7, Number 1, 2002

From John Doe to Known Offender: DNA Profile Arrest Warrants

by Norman A. Gahn, Assistant District Attorney, Milwaukee County, Wisconsin with Susan Bieber Kennedy, Senior Attorney, DNA Legal Assistance Unit, American Prosecutors Research Institute

A computer database can store information for extended periods of time, and DNA profiles developed from collected evidence can be checked against the database profiles long after the commission of the crime. Some software programs have embedded timers that regularly cycle through all of the collected evidence profiles checking them against new offender profiles added to the database. When the computer makes a “match,” the DNA analyst notifies law enforcement, regardless of the passage of time. The “matches” are known, consequently, as a “cold hit” since years (or decades) may have passed since the crime occurred. “Cold hits” have generated new legal and practical issues for prosecutors. One issue is the elimination of, and changes or exceptions to, statutes of limitations involving sexual assaults around the country.The uniqueness of DNA profiles developed from unsolved, non-suspect sexual assault cases allows the prosecutor to issue criminal complaints and warrants for arrest based upon an unnamed assailant’s genetic code. The prosecutor must toll the statute of limitation by a timely filing of a charging document. This Silent Witness issue discusses “cold hits” and tolling statutes of limitations.

In September of 1999, the Office of the District Attorney for Milwaukee County in Milwaukee, Wisconsin issued a warrant for the arrest of “John Doe” who was identified by a genetic code only. The warrant for the arrest of “John Doe” was issued a few weeks before the expiration of the statute of limitations. Since the issuance of that first “John Doe” warrant, Milwaukee County has issued 15 warrants for arrest in sexual assault cases based solely on the assailant’s genetic code.

By complaint filed December 4, 2000, again in Milwaukee County, the State charged “John Doe #12” with one count of kidnapping and four counts of first-degree sexual assault. On the same day, a circuit court judge found probable cause in the criminal complaint and issued an arrest warrant for “John Doe #12.” The criminal complaint alleged that on December 7, 1994, an unknown male accosted a 15-year old female at a bus stop in Milwaukee and forced her at gunpoint to a nearby car lot. There, the assailant tied the victim’s hands behind her back and covered her eyes with her ear warmers and knit cap, then led her to a car, pushing her inside. After driving a short distance, the assailant stopped the car, untied the victim’s hands, removed her coat and dress and forced her to perform fellatio on him. The victim was subsequently transported to the Sexual Assault Treatment Center in Milwaukee where oral swabs were taken from her.

State Crime Lab testing in March 1995 revealed the presence of semen on the evidentiary samples. Subsequent DNA analysis, using the polymerase chain reaction (“PCR”) method was performed on the semen, developing a DNA profile that was foreign to the victim at 13 genetic locations. This DNA profile was included in the captions of the criminal complaint and arrest warrant to identify the unnamed defendant. On February 27, 2001, the State Crime Lab made a “cold hit” and determined that John Doe #12’s DNA profile matched the DNA profile of one Bobby R. Dabney contained in the known offender databank. The State Crime Lab reconfirmed this on March 7, 2001. On March 12, 2001, the State filed an amended criminal complaint substituting the name of defendant Bobby R. Dabney for “John Doe #12” in the original criminal complaint. Dabney was subsequently bound over for trial at a preliminary hearing on April 12, 2001. On June 22, 2001, the defense attorney for Bobby Dabney filed a motion to dismiss on grounds that the original complaint based on the defendant’s DNA profile was insufficient and should not toll the six-year statute of limitations, which otherwise would have expired three days after the complaint was filed. Dabney also argued that the State’s delay in commencing the prosecution violated his right to due process of law.

On July 16, 2001, the Milwaukee County District Attorney’s Office responded to the motion to dismiss, maintaining that DNA is the most reliable and accurate identifier today and that John Doe DNA profile warrants satisfy the statutory requirement. According to Wis. Stat. sec. 968.04(3)(a) 4, an arrest warrant based on complaint must “[s]tate the name of the person to be arrested, if known, or if not known, designate the person to be arrested by any description by which the person to be arrested can be identified with reasonable certainty.” The statute of limitations codified in Wis. Stat. sec. 939.74(1), prosecution for a felony “must be commenced within six years.” Under this provision, “a prosecution has commenced when a warrant or summons is issued, an indictment is found, or an information is filed.” Thus, if the complaint and arrest warrant based upon a genetic profile are sound, then they are not time-barred under Wis. Stat. sec. 939.74(1). By decision and order of August 31, 2001, Milwaukee County Circuit Court Judge Jeffrey R. Wagner denied the motion of the defense to dismiss, ruling that a person’s DNA profile is unique. The trial court noted that a person can readily change his or her name, address and physical appearance, so that such identifying information in a criminal complaint may be of limited value to law enforcement authorities in locating a charged defendant in a particular case. The trial court ruled that there is no description more reasonably certain than DNA, that the law must catch up with the advances in science, that the identification by genetic code was legally sufficient, and that prosecution was commenced within time limitations. The defense for Bobby Dabney subsequently filed a petition for review with the appellate court in the State of Wisconsin.2

Post hoc support for the proposition that a DNA profile is sufficient to commence a prosecution may be found in the Wisconsin Legislature’s recent amendment of Wis. Stat. sec.939.74, governing the statute of limitations for criminal prosecution of sexual assaults. Effective on September 1, 2001, Wis. Stat. sec. 939.74(2d) (b) provides:

If before the time limitation under sub. (1) expired [the six-year period for felonies], the State collected biological material that is evidence of the identity of the person who committed a violation of s. 940.225(1)or (2), the State identified a [DNA] profile from the biological material, and comparisons of that [DNA] profile to [DNA] profiles of known persons did not result in a probable identification of the person who is the source of the biological material, the State may commence prosecution of the person who is the source of the biological material for violation of s. 940.225(1) or (2) within 12 months after comparison of the [DNA] profile relating to the violation results in a probable identification of the person.

In sum, this new legislation creates an exception to the time limits for prosecuting sexual assault cases in certain circumstances if the State has DNA evidence related to the crime. Although it plainly does not apply to Dabney’s case, it reflects legislative recognition that DNA profiles are a sufficient means of identifying sexual assault offenders.3 Advancements in DNA technology require law enforcement and prosecutors to re-examine the effectiveness of present forensic investigative techniques and strategies for bringing criminals to justice.

The DNA Forensic Evidence Unit at APRI can provide examples of John Doe warrants and complaints, and the State’s Response to a defense Motion to Dismiss and the decision and order from Wisconsin v. Dabney, as provided by the author. In addition, the decision permitting the use of a John Doe warrant using a DNA profile, California v. Robinson, No. 00F06871 (Super. Ct., Sacramento Co. 2001) is available upon request.

Visit the Website at http://www.ndaa-apri.org/apri/programs/dna/index.html.

1 The Milwaukee District Attorneys Office began to use alleles and locations on the warrant and complaint after John Doe #12, providing a complete and very specific description of the person being sought.

2 On February 6, 2002, Dabney was convicted of one count of Kidnapping and two counts of First Degree Sexual Assault and was sentenced on February 20, 2002 to 120 years.

3 Since identifying John Doe #12, prosecutors have identified John Doe # 13, and John Doe #10 through DNA databank cold hits.