SJC ruling extends reach of DNA cases

Finds no time limit for those so identified

By Jonathan Saltzman
Globe Staff / December 10, 2010

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The long arm of the law just got longer.

The state’s highest court ruled yesterday that prosecutors can indict suspects known only by their DNA profiles and bring them to justice years later when police identify who the genetic material belongs to, even if the statutes of limitation have lapsed.

In the Supreme Judicial Court’s first decision of its kind, the justices unanimously concluded that a DNA profile is an “indelible ‘bar code’ that labels an individual’s identity with nearly irrefutable precision.’’ As such, it can serve as the identity of the person indicted, even though the charging document lists the unknown defendant as John Doe.

The ruling resembles appellate decisions in at least five other states, according to the office of Attorney General Martha Coakley. So-called DNA indictments, she said in a statement, “ensure that the clock does not run out on the use of DNA evidence to hold dangerous predators accountable for their violent acts.’’ Her prosecutors filed a brief supporting such indictments on behalf of the state’s district attorneys and the Executive Office of Public Safety and Security.

Suffolk District Attorney Daniel F. Conley, whose office prosecuted the alleged rapist at the center of the appeal, said in a statement that the decision “brings Massachusetts law up to speed with a field of science that advances every day.’’

Since 2000, Suffolk prosecutors have indicted 12 DNA profiles, said Jake Wark, a spokesman for Conley. In a handful of those cases, authorities were able to later put a name to the profile and prosecute the individual, but in those cases the statutes of limitation had not run out.

The case that resulted in yesterday’s ruling marked the first time that authorities put a name to the profile after the statute of limitations had lapsed.

Veronica J. White, the Boston lawyer for the suspect who was accused of the rape, took issue with the decision, saying the court had essentially done away with statutes of limitations in cases with DNA evidence.

As a result, she said, individuals could be arrested decades after crimes and have difficulty mounting a vigorous defense, because witnesses have died, memories have faded, and defendants have not had any access to evidence gathered long ago by prosecutors.

“The statute of limitations is the primary guarantee for a defendant against stale prosecutions, and [the justices] have trampled on that right today,’’ she said.

Her 37-year-old client, Jerry Dixon of Dorchester, was arrested in July 2008 in connection with two aggravated rapes in March and July 1991. Both victims were threatened with a knife. The first woman was raped and beaten in a wooded area near Townsend Street, said prosecutors, the second behind an Amory Street building in Jamaica Plain.

Boston police collected biological evidence after both attacks, but the technology to develop a genetic blueprint of the suspects was not yet available.

In 1992, a Boston man named Anthony Powell was convicted of the March rape. He served 12 years in prison before DNA evidence proved that he could not have committed the crimes, and he was freed.

Then in 2006, days before the 15-year statute of limitations expired on the rapes, a Suffolk County grand jury indicted an unknown subject, listed as John Doe, based on DNA evidence collected at the crime scenes.

Authorities traced the genetic material two years later to Dixon, who was serving a prison sentence for an unrelated crime and had provided a DNA sample, as required for state prisoners. Prosecutors then amended the indictment to replace John Doe with Dixon’s name.

Early last year, Dixon’s lawyer asked Suffolk Superior Court Judge Peter M. Lauriat to dismiss the indictment on the grounds that the statute of limitations had expired by the time her client was named. Lauriat asked the state Appeals Court whether she was right, and the Supreme Judicial Court took the case itself.

Writing for the court, Justice Robert J. Cordy said a John Doe indictment based on a DNA profile is an “entirely different species’’ from a John Doe indictment based on a general description.

“Unlike the general John Doe indictment . . . an indictment of a person identified by a DNA profile accuses a singular and ascertained, but simply unnamed individual,’’ he wrote.

The ruling sets the stage for Dixon to be tried for both rapes soon. The case is scheduled for a court hearing on Dec. 22.

Janet H. Pumphrey, a Lenox appellate lawyer who wrote a brief opposing DNA indictments on behalf of defense lawyers and civil libertarians, said she was disappointed by the ruling but heartened by one section.

The court said that if the Legislature wants to provide more safeguards against stale prosecutions, it can amend laws dealing with statutes of limitations, as other states have done. Some states, for example, give prosecutors a limited amount of time to prosecute individuals once authorities have linked them to DNA profiles.

“Do I like the decision? No, I don’t,’’ she said. “But the precedent from other states is against us.’’

Saltzman can be reached at