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special to the national law journal State legislatures across the nation will be scrambling this summer to undo centuries of tradition by eliminating statutes of limitations and to prosecute old crimes. It is one of several legislative initiatives seeking to realign the law to exploit new crime-solving technology, specifically DNA evidence. The U.S. Supreme Court will tell California by June 30 whether a 205-year-old standard allows the state to prosecute a 74-year-old man on 48-year-old child molestation charges. At least 10 states will be debating the removal of the statute of limitations on offenses in which DNA evidence is found at the crime scene. Another 20 states have passed similar laws since 2000. Eighteen states are deciding whether to remove time bars to pursue old child abuse cases. Another 12 states have done so. On the federal level, the Domestic Security Enhancement Act of 2003, which amends the USA Patriot Act of 2001, eliminates or extends the statute of limitations on a wide variety of crimes. “Are we so bloodthirsty that we have to right every conceivable wrong?” asked Lawrence S. Goldman, president of the National Association of Criminal Defense Lawyers and principal at the Law Offices of Lawrence S. Goldman in New York. “Has our society become so victim-oriented that we concede to the government fundamental civil liberties so that we can have vengeance every day of every week?” “I very much appreciate civil libertarians’ point of view,” said Janet Gaard of Sacramento, the special assistant attorney general who drafted California’s statute and argued it before the Supreme Court. “But does a perpetrator who says, basically, ‘I’m off the hook’ benefit society? I’m not persuaded by that. The state has an obligation to prosecute.” Common law concept The statute of limitations sets the maximum time period the government has to prosecute offenders. The time bars ensure that law enforcement resources are efficiently used: when eyewitness memories are clearest and defendants’ abilities to defend are most favorable. It is a common law concept that grew out of efforts by British royalty in the 1600s to persecute political dissenters by resurrecting old crimes and by criminalizing previously acceptable behavior. Prosecutors and victim’s groups say that in light of new scientific discoveries, the traditional time bar allows offenders to escape punishment. Since the late 1980s, at the FBI’s prodding, law enforcement has been building parallel databases of DNA material. The genetic codes of DNA are found in biological materials and are unique to each individual. Thus, the police can identify who was at a crime scene from as little material as saliva on a cigarette butt. State legislatures have been passing laws requiring more and more offenders to give up a swab of saliva from inside their mouths so that a DNA profile can be developed, then compared against the samples taken at crime scenes. However, funding for the effort has not kept pace, creating a situation where nearly a million samples have not been analyzed. In many cases, DNA evidence comes from crimes in which the statute of limitations has expired. Law enforcement and victims’ advocates then began pushing for legislation to extend or eliminate the statute of limitations, so that when the money was found to process the DNA and make comparisons, the alleged perpetrator could be prosecuted. The two issues go hand in hand, proponents say. For instance, as soon as Louisiana Governor Mike Foster signs the bill that he received on June 12 to abolish the statute of limitations in DNA cases, the police plan to arrest three suspects whose previously time-barred crimes were discovered by DNA matches. New York Governor George E. Pataki on June 4 unveiled a plan to expand the state’s DNA database and to remove the five-year statute of limitations on Class B felonies, which range from burglary to manslaughter. “DNA is a powerful crime-fighting tool that helps convict the guilty, exonerate the innocent and bring justice for victims,” Pataki said at a news conference where he was accompanied by John Walsh, host of the television program America’s Most Wanted, who came to prominence as a murder victim’s father pushing legislation to ease the prosecution of child molesters. In addition to legislative initiatives, the courts also have become involved. The Wisconsin Supreme Court in April became the first in the nation to allow prosecutors to skirt the statute of limitations by filing an arrest warrant for a suspect identified only by a genetic code. On Dec. 7, 1994, a 15-year-old was abducted from a Milwaukee bus stop. She was blindfolded. Her life was threatened and she was sexually assaulted. Authorities took a sample of the perpetrator’s semen. Coincidentally, in March 1995, under a newly enacted law, Wisconsin took a DNA swab from Bobby R. Dabney, who had been imprisoned after being convicted of a sex crime. Both samples sat on shelves because of a lack of funding for analysis. The samples were finally analyzed in October 2000. The profile from the “rape kit” came back first, and Norman A. Gahn, a Milwaukee County assistant district attorney, filed a “John Doe” arrest warrant three days before the statute of limitations expired. On Feb. 27, 2001, the computerized database matched the DNA profile taken from Dabney when he reported to prison with the sample taken from the child. Dabney did not challenge the DNA evidence. He was found guilty and was sentenced in February 2002 to 120 years in prison. Dabney, however, did appeal the arrest warrant, arguing that the statute of limitations had tolled. But the Wisconsin Supreme Court found that a “John Doe” warrant based on a DNA profile properly circumvented the statute of limitations. State v. Dabney, No. 02-2445-CR (Wis. April 29, 2003). “There’s no reason to maintain a statute of limitations with this new science. The law must catch up with the science,” the district attorney said. Reaching the church Widespread allegations of child molestation by Roman Catholic priests, the majority of whom could not be prosecuted because the crimes were time-barred, brought sharp attention to the issue. The elimination of the statute of limitations is “the number-one legislative goal of the survivor’s movement,” said Paul Baier of Survivors First Inc. of Boston, a victim’s advocacy group that pushes for legislative changes involving child abuse. Illinois passed such a law on May 15, beginning the statute of limitations time period only after the victim discovers the causal connection between the abuse and his injuries. On June 27, Common Pleas Judge Richard Niehaus of Cincinnati is set to hear defrocked priest George Cooley’s challenge to Ohio’s new law that does not begin running the statute of limitations until an indictment is filed. Cooley, 54, is arguing that his alleged crime was committed from 1984 through 1988, a time period which had long ago expired under the old Ohio law. Legislators are unlikely to line up to protect the predators targeted by these efforts to modify statutes of limitations. “It is counterintuitive that if someone is guilty that they should get a windfall for eluding detection for an arbitrary period of time,” said Evan T. Lee, a professor at the University of California Hastings College of Law in San Francisco. But statutes of limitations were not originally aimed at protecting criminals, he said. Historical rationale Deterioration of evidence was the historical rationale. Over time, documents disappear and memories fade. A person accused of a 20-year-old crime cannot reconstruct the receipts, the phone records and other evidence necessary to prove an alibi or provide an innocent reason for his DNA being at a crime scene, Lee said. “I think we all know that if you’re innocent, being put on trial is like going through hell,” Lee said. “The tradition [of the statute of limitations] tends to suggest that there was some sort of wisdom behind it.” The Supreme Court is poised to rule on that perception in Stogner v. California, No. 01-1757. “The DNA, the repressed memory, all of that is aimed at cases in the past. That’s why the Stogner case has a lot riding on it,” Lee said. In 1998, Contra Costa police charged Marion R. Stogner, 74, with repeatedly sexually abusing his daughters as far back as 1955. The younger daughter made the first admission during a 1998 investigation of her brother’s alleged molestation of his stepdaughter. When confronted by police, the older daughter confirmed the abuse. At issue is the viability of Penal Code Section 803(g), California’s repeal of the statute of limitations that allows retroactive pursuit of sex crimes involving children. Enacted in 1994, Section 803(g) served as a model for similar child molestation legislation around the country. It also shared much of the same logic and wording as laws states have been passing for DNA evidence. The high court will decide if Section 803(g) passes a four-pronged ex post facto test outlined in Calder v Bull, 3 Dall. 386 (1798), one of the first Supreme Court opinions involving constitutional limitations on government power. That case says in effect that a law doesn’t violate the ex post facto clause unless it does one of the following: Criminalizes an act that had been acceptable in the past. Increases the punishment. Creates a new punishment. Changes the evidentiary standard. Stogner argued that Section 803(g) violated the ex post facto clause by exposing him to a trial and prison sentence that he would not have faced had the law not been changed. A statute of limitations provides a material element to every offense that must be proved for the prosecution to succeed, Stogner argued. Therefore, removal of the statute of limitations creates a new offense, changes the rules of evidence and exposes suspects to new punishments, according to Stogner, who is represented by alternate public defender Roberto Najera of Martinez, Calif. California disagreed, arguing that forcing sex on a minor has always been a crime. In 1955, the same criminal conduct would have netted the same sentence, so nothing has changed. All Section 803(g) did was to remove the statue of limitations to accommodate new evidence that will bring to justice child molesters who otherwise would get away, Gaard, the California special assistant attorney general, argued to the Supreme Court. “There is new scientific evidence that wasn’t available at the time. There is a justification,” Gaard said.

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