Stardate 20020206.1710

(On Screen): This is one for the constitutional lawyers, but I think it's over the line. The Fifth Amendment says, "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury..." What, exactly, has to be on an indictment? Ordinarily an indictment has to unambiguously identify someone (usually by giving his name and his place of residence).

Can you indict a picture? How about a fingerprint? Or, in this case, a DNA profile? What they've done is to cover their bets. The statute of limitations was about to run out. They have a DNA profile of a rapist, but have not identified who it belongs to. So they've issued a John-Doe indictment against whoever it is that matches that DNA profile, which will remain active even after the statute of limitations runs out for that crime. The question is whether that really is a legal indictment.

It strikes me that it is not, and if they actually find someone who matches that DNA profile in a year or two, he can legally challenge it. And they would not then be able to indict him again by name because of the statute of limitations.

This seems to be an attempt to overturn the whole point of the statute of limitations. For all intents and purposes, anyone for whom sufficient evidence existed, even if not identified, could be indicted on the basis of the evidence. In other words, we indict whoever it is who matches the following evidence; and we'll tell you who he is once we find him even if it's thirty years from now.

Perhaps there should not be a statute of limitation for rape of a 12 year old girl. If so, that's something that should be taken up with the Legislature of the State of New York. But it's not a decision a local DA should be making. It's his job to enforce the law, to change it.