'John Doe' DNA Leads to Suspect in Old Sex Crime
Indictments Keep Statute of Limitations From Expiring; Critics Raise Questions

28 October 2004


Eight years ago, a man tried to rape a woman in a Canal Street subway station on Halloween, prosecutors say. He could not be found, and in 2001, before the statute of limitations on the crime ran out, prosecutors drew up an indictment based on a DNA profile.

This month, the profile turned up a match to a man named David Martinez, prosecutors said. Mr. Martinez was arrested yesterday in what Robert M. Morgenthau, the Manhattan district attorney, said was New York State's first arrest based on what is known as a John Doe indictment, which uses DNA samples to charge an unknown sexual attacker before the statute of limitations expires.

The arrest of Mr. Martinez, 46, involves the first DNA match that prosecutors say has been confirmed in the John Doe Indictment Project, a city effort in which prosecutors, investigators and scientists seek to tie the most serious sex crimes to specific DNA profiles, and then file charges even before they have identified a suspect. The Manhattan district attorney's office started seeking such indictments in 2000.

The aim was to aggressively pursue sex offenders by indefinitely preserving the ability to prosecute. The program allows prosecutors to freeze statutes of limitations, which protect people from being arrested long after a crime is committed and facing a prosecution based on the fading memories of witnesses.

Mr. Morgenthau said yesterday that without mandatory DNA testing of certain criminals, "we wouldn't have made this case."

"It reassures victims that we don't give up," he said, "and their attacker may eventually be located and prosecuted."

The arrest, and another this week, are a first for New York State, but not for the country. Norman Gahn, an assistant district attorney in Milwaukee County in Wisconsin, said that in 1999, his office became the first to issue a warrant based on a DNA profile, which, like New York State's process of indictment, begins criminal proceedings. Since then, it has found and prosecuted eight people, including two accused of burglary, using the procedure. Six received prison time, he said.

This week, the police in New York City made another arrest under the program, in a 1994 attempted rape. The suspect, Johnny Boone, 50, a homeless man from Brooklyn, was taken into custody Tuesday night after a Manhattan grand jury returned an indictment on Friday based on DNA believed to be his, just 12 hours before a 10-year statute of limitations was to expire. Prosecutors are waiting for confirmation that the DNA, which was found on the pantyhose of the victim, matches the suspect's, a spokeswoman for the district attorney's office said.

Neither Mr. Martinez nor Mr. Boone has been formally charged. Mr. Martinez will be arraigned tomorrow on charges of first-degree attempted rape, robbery and sexual abuse, Mr. Morgenthau said, and his spokeswoman said Mr. Boone will also be arraigned tomorrow, on a charge of attempted rape.

New York State law requires that a prosecution be brought within five years of felony-level crimes, or within 10 years if the criminal's identity and whereabouts are unknown.

The arrest of Mr. Martinez reopens a case whose trail of clues had long gone cold. In 1996, a 20-year-old exchange student from Germany was walking to the uptown No. 6 subway train at Canal Street, prosecutors said, when three men approached her at gunpoint and asked for money. The woman handed over $27, and the men started to leave, but one of them, a man prosecutors say was Mr. Martinez, pushed her against a wall, held a gun to her neck and sexually assaulted her. He then fled.

The woman, who is now working at a financial services firm in New York but was otherwise not identified, a stipulation of sex crime laws, was relieved by news of the arrest, Melissa Mourges, an assistant district attorney, said at the briefing yesterday.

"She was very surprised and very happy," Ms. Mourges said. "She had taken a leap of faith" by testifying before the grand jury, and had "to revisit the pain not knowing if anything was going to come of it."

Mr. Gahn, the assistant district attorney in Milwaukee County, said that other states, including Illinois, Oklahoma, Utah, Kansas and California, have some form of DNA procedure that freezes statutes of limitations for some crimes. Rockne Harmon, a prosecutor in Alameda County, Calif., said one person was tried and convicted in Sacramento under a John Doe warrant in 2002.

There have been 24 John Doe sex crime indictments in Manhattan, and 50 citywide, the Manhattan district attorney's office said. There are fewer than 10 such indictments in New York State outside the city, the office said.

Mr. Martinez, who has lived at a number of addresses in New York and New Jersey, came to the attention of the authorities via a simple parole violation, prosecutors said. He has been in and out of jail for parole violations since 1992, the authorities said, after serving seven years in jail for a robbery in Midtown Manhattan. On July 8 he violated his parole restrictions again, prosecutors said, and DNA was taken from him later that month. His sample was checked against a national DNA database, and it matched the profile of the DNA in semen collected from the victim's clothing, prosecutors said.

The New York Civil Liberties Union has raised questions about the practice of using DNA indictments to find suspects and push the boundaries of the statute of limitations, saying that suspects' due process rights could be violated.

Lawrence S. Goldman, a former president of the National Association of Criminal Defense Lawyers, said he is wary of the procedure because it proves only one element of any sex crime: that a sexual act was committed, but not, for example, that it was forced.

"One can say, 'Oh, they got the right man because the DNA matches,' " Mr. Goldman said. Still, "there are all kinds of things it does not prove, such as whether the woman consented to the act."

What is more, there are large numbers of false accusations in the category of sex crimes, he said, and it is tricky to mount a defense many years after a crime is alleged to have taken place.

Barry C. Scheck, co-director of the Innocence Project at the Benjamin N. Cardozo School of Law, which handles cases in which DNA testing after convictions yields proof of innocence, said the Martinez and Boone cases will test how well John Doe indictments hold up in court.

A better approach, he said, would be to have the State Legislature codify the procedure. Still, he prefers it to initiatives in some states to scrap the statute of limitations altogether.

"I applaud Mr. Morgenthau for doing it in principle this way," he said. It is important to show that "the biology is critical."