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Indicting DNA Profiles Now Critical in Old Rape Cases

The New York Times
BYLINE: By AL BAKER; Alain Delaqueriere contributed reporting.

Manhattan, NY

Nearly 10 years had passed since a college student was raped on the Upper West Side of Manhattan, and with no known suspect in the 1993 case, the police were not close to an arrest. But what they did have was nearly as critical: the rapist's DNA profile.

Prosecutors in Manhattan -- aware that the legal clock for bringing a case was running out -- devised the novel strategy of indicting the rapist's DNA. Four years later, the sample was connected to a man, Victor Rondon; he was eventually convicted and sentenced to 44 to 107 years in prison.

While there have been many celebrated cases in which DNA evidence has been used to overturn wrongful convictions, often many years after the trial, such evidence has become essential in solving cold cases.

In New York City, prosecutors have secured 117 indictments of DNA samples in rape cases, linked 18 of those profiles to specific people, and obtained 13 convictions, either through trials or negotiated pleas. Five cases are pending.

'What we said was, 'There is no reason for people to get away with rape because of the statute of limitations,' '' said John Feinblatt, Mayor Michael R. Bloomberg's criminal justice coordinator. ''They shouldn't be able to hide behind it; they shouldn't be able to race for time and get over the finish line and leave a victim without a case being solved.''

The success in rape cases has led officials in New York to expand the use of DNA as an investigative tool for not only serious, violent crimes, but also for offenses like serial car theft.

Many states, including Arkansas, Michigan and Delaware, use genetic evidence as a basis for indicting unknown assailants in sex crimes, said Scott Akehurst-Moore, a law librarian at Suffolk University Law School in Boston who has studied and written about the subject. In one well-known case in Delaware, he said, state law was modified to allow DNA indictments for a wide range of crimes including murder, rape, forgery and perjury.

In Sacramento, Calif., a deputy district attorney, Anne Marie Schubert, said the strategy of indicting DNA is applicable not only to sexual assault cases.

''If you have a guy, a bank robbery person, and you know it belongs to the suspect, or a guy goes in and beats up an old lady and leaves his blood behind, you can do it in cases like that, where there is a statute of limitations,'' Ms. Schubert said. ''It is a tremendously powerful tool that allows us to protect the rights of victims.''

In New York, authorities are now collecting more DNA evidence from the scenes of everyday crimes. They hope to use DNA to help solve unsolved crimes from the past that are subject to a statute of limitations, like burglary, robbery or serial car theft.

A $500,000 federal grant is now financing the study of cold cases, including homicides and serious sexual assaults, with an aim of unearthing DNA evidence, by the Manhattan and Staten Island district attorney's offices, the Police Department and city medical examiner's office.

Frederick R. Bieber, a forensic expert and a professor of pathology at Harvard Medical School, hailed the effort to broaden DNA's use, saying New York officials have ''taken the lead'' in pursuing hits between DNA samples and unsolved crimes.

''Law enforcement around the world has learned to collect DNA from property crimes, which often leads to convictions for major crimes,'' Dr. Bieber said. ''They have widened the scope of cases from which they collect biological evidence.''

The first concentrated push in New York began in 2003 with the Bloomberg administration's John Doe Indictment Project, which sought to preserve the ability to prosecute rape suspects in cases where the statute of limitations was near. That statute, which was lifted in 2006, had set a 10-year time frame for prosecution when a suspect's whereabouts or identity were unknown.

Opponents say the passage of time can erode a defendant's ability to mount a vigorous defense because memories can fade; evidence and alibi witnesses can disappear. The National Association of Criminal Defense Lawyers, in a resolution against John Doe DNA indictments, said DNA samples can degrade over time and said that errors in the ''collection, handling and storage of DNA samples'' can lead to wrongful prosecutions.

But officials in New York and elsewhere say it is irresponsible to ignore the certainty of genetic evidence, particularly considering the sophistication in extracting it in old and new cases.

Of the city's 117 John Doe rape indictments, one has been appealed, officials said. In that case, the state's Appellate Division upheld the prosecution that resulted in David Martinez's pleading guilty to attempted rape in a 1996 attack. The court rejected his claim that the indictment of his DNA in 2001 deprived him of his right to be notified that he was accused.

Though the state eliminated in June 2006 the statute of limitations in four categories of sex crimes, the John Doe indictments are ''critical'' for the remaining 99 rape cases in which there is not yet a named suspect, Mr. Feinblatt said. The state now requires taking DNA samples from those convicted of any felony and 35 types of misdemeanors, which he said has helped link names to DNA profiles. But Mr. Feinblatt said New York should be taking DNA from all convicted criminals as well as from all arrestees, as is done in federal cases.

The fact that some rapists have arrests and convictions for other crimes illustrates the point that, as Mr. Feinblatt said, rapists ''are not specialists.'' In the cases of Mr. Rondon, 34, Kevin Louis, 41, and Richard Thomas, 42, it was their connection to lesser crimes that led the authorities to link them through a DNA database to the John Doe rape indictments of their genetic profiles, he said.

Mr. Louis was on the cusp of evading rape charges when his DNA profile was linked to the attack of a Brooklyn woman in front of her children in 1994, a crime for which he is serving up to 50 years in prison after his conviction last year.

Mr. Thomas is headed to trial in Queens, where prosecutors say he raped a woman in 1996 and a 12-year-old girl on her way to school in 2004. The case, encompassing both attacks, stands on the indictment of a DNA profile from 2004 that matched Mr. Thomas's DNA from a grand larceny case he was required to provide DNA for in 2006, said Richard A. Brown, the Queens district attorney.

For victims, the resurrection of cases nearly forgotten can be healing.

One woman, Natasha A., who was attacked by Mr. Rondon, said that her attacker's DNA profile was indicted in February 2003, six months before the case would have been out of prosecutors' reach. She remembers the phone call she received when the district attorney's office moved to indict the biological evidence recovered from the August 1993 attack on a staircase landing near the roof of her building, when she was a 20-year-old college student. Another call came in 2007, she said, and a trial soon got under way.

When Mr. Rondon was sentenced in April 2008, Natasha A. said it comforted her to imagine the culmination of her saga giving solace to victims timed out of such opportunities by the old statute of limitations.

''The crime that Victor Rondon committed was against me, but it was also against the people of New York,'' she said. ''This is a man who committed a crime and got away with it, and may have continued to do it throughout his life, thinking he could get away with it and creating more victims.''

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