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A Wisconsin man will soon be the first to stand trial in that state for alleged sexual assault following his arrest on a warrant that identified him not by his name but by his DNA. Bobby Dabney, who is incarcerated on unrelated charges, was arrested and charged with alleged kidnapping and multiple counts of sexual assault on a warrant issued for “John Doe No. 12,” which identified the suspect solely by a technical description of the DNA derived from semen collected from the victim. Dabney unsuccessfully challenged the warrant in circuit court, and the state appeals court refused to review the decision upholding the warrant before the trial of the case. Wisconsin v. Dabney, No. 00-CF-005907 (Milwaukee Co., Wis., Cir. Ct.). Milwaukee County Assistant District Attorney Norman Gahn said the case is simply a matter of the courts recognizing advances in technology. “There is nothing novel about John Doe arrest warrants,” Gahn said. “What is novel is using the genetic code to meet the reasonable certainty test.” According to court records, the victim, a woman waiting at a bus stop on a bitterly cold Dec. 7, 1994, was knocked to the sidewalk by a punch to the head, blindfolded, her hands bound, and removed from the scene in the assailant’s car, where she was threatened with a gun. Dabney is charged with one count of kidnapping and four counts of sexual assault. A DNA DATABASE On being released, the victim immediately reported the assault and was taken to a clinic where semen samples were recovered for DNA analysis. The results of the analysis were entered into databases for comparison with DNA profiles routinely collected from convicts in the Wisconsin prison system. On Dec. 4, 2000, with the six-year statute of limitations about to expire, Gahn obtained a “John Doe” arrest warrant that used the genetic description of the defendant, as determined by analysis of the semen. The warrant named a “John Doe No. 12″ because it was the 12th such warrant obtained using the DNA profile. Eventually, it was the first to yield an arrest. “We knew who the guy was because we had his genetic code; we just didn’t have a name,” Gahn said. “We were up against the statute of limitations and it was very frustrating. We did this to keep the case alive.” A DNA sample was collected from Dabney in February 1996, after a conviction for armed robbery. The description of the DNA derived from the semen was compared with DNA databases monthly. A “cold hit,” or match, was allegedly found in February 2001. Gahn said funding constraints and the tedious process of entering DNA information into data banks accounted for the lag between when Dabney’s DNA sample was collected and when it was matched to the sexual assault suspect. “We knew we would eventually get a cold hit because the DNA data banks are growing,” he said. Dabney’s attorney, Lynn Hackbarth of the Law Offices of Lynn Ellen Hackbarth in Milwaukee, argued that a DNA profile is an insufficient description of a John Doe suspect to obtain an arrest warrant. She further contended the DNA warrant could not extend the statute of limitations, and that doing so violated Dabney’s due process rights. “By identifying the person by their DNA profile and no other external or visible characteristics, virtually anyone can be considered as a defendant until the DNA profiling is done and a match is made,” she wrote in her brief. Milwaukee County Circuit Court Judge Jeffrey A. Wagner rejected that reasoning, writing in his opinion that the DNA profile met the “reasonable certainty” standard for John Doe arrest warrants that has existed since the late 19th century.

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