CLPEX Chat Board

So after having read the article about Lelio Guerrero out of NY and other indictments of John/Jane Does based upon DNA profiles, I have to wonder, why hasn't anybody tried to indict an unidentified latent print?

Same principle isn't it?

SConner,

I think you are referring to what are known as John Doe warrants. It was first attempted in Wisconsin (my neighbor). Wisconsin v. Dabney , Circuit Court, Milwaukee County, Case No. 00CF-005987 (8/31/01). dabney.PDF upheld in Wisconsin v. Dabney , Wisconsin Court of Appeals Division 1 (4/29/03).

The idea is a warrant is issued where the name of the perpretator is Unknown (JOHN or JANE DOE), but the specific allelic profile for DNA is listed instead...i.e. the person who is a "21/22 at Locus 1, a 13, 18 at Locus 2, etc.".

So you raise a GREAT question. I don't believe it's been tried, but here are some challenges that would have to be overcome.

1. In DNA cases, the person IS a 21/22, and a 13/18, etc. Barring the rare genetic mutation post profile development, it's an exact match. (For stats folks, the numerator of the LR is "1" for intents and purposes). For fingerprints, b/c of distortion, a bifurcation could be ridge ending, it could be attached up, or down, it's shifted a bit, could have large tolerance, etc. all sorts issues. You'd have to have a pristine latent where the feature is essentially unquestionable. But possible, of course...

2. In the rare cases where John Doe warrants are produced, you need the following factors:
-it must be a case about to expire on statute of limitations (the JOhn Doe warrant effectively extends the statute of limitations, leaving the warrant open indefinitely until the person matching the DNA profile is caught. Then you have 1 year to prosecute from that time. Most of the legal challenges have been specifically to this backdoor loophole to the statute of limitations).
-it must be a specifically heinous crime. Not to be vulgar or offensive, but it's not for the "run of the mill" rapes and sexual assaults (I don't mean to minimize these crimes, this is how attorneys describe this process). It's used in cases where the victim was a child, a person with mental retardation, kidnapped and sodomized for weeks, etc. AND the statute is about to run out.
-lastly, and most importantly, the DNA collected could really ONLY have come from the perpretator. Usually it's semen on said child, etc. or collected from vaginal swab where victim was eliminated from profile mixture.

So you gotta have a LOT of different things going on to get this warrant and it's specific for DNA for those reasons.

3. I could imagine a case like this fingerprints, but it would be such an exception. Statutes don't expire on homicides...so it would have to be a near pristine fingerprint (not really subject to interpretation) and it would have to be deposited in such a way that only the perpetrator could be the source, in a really heinous crime. Finally, all other avenues would have to be exhausted and this print is basically equal to guilt in the case.

It's possible, but I can't think of a case like this in my career yet that would fit that bill (that wasn't a homicide).

Has anyone heard of such an attempt for fingerprints? Or has a case that would fit that description?

g.

Yes G, a John/Jane Doe warrant is exactly what I was referring to, thank you for wording it much better than I did just off the cuff.

WRT the statute of limitations for crimes, each state words their statutes a little differently. The way the statute of limitations for some crimes here in AZ reads, arguably if we don't have a clue who the suspect is, the clock isn't ticking on the statute of limitations.

http://www.azleg.gov/FormatDocument.asp ... ocType=ARS

http://www.azleg.gov/FormatDocument.asp ... ocType=ARS

I dare say that the AZ legislature has recognized that statutes of limitation are not meant to relieve a person of possible prosecution for a crime just because they've escaped detection for 'x' period of time but rather the idea of a statute of limitations is to prevent a known/named/suspected offender from walking around with the proverbial Sword of Damocles hanging over him/her wondering when/if the State will ever arrest me.

At least that's the interpretation of my non law school trained mind.

Here's a webpage with some interesting information on this topic:

http://darners.net/JohnDoe/JohnDoe.htm

SConner wrote:So after having read the article about Lelio Guerrero out of NY and other indictments of John/Jane Does based upon DNA profiles, I have to wonder, why hasn't anybody tried to indict an unidentified latent print?

Same principle isn't it?

I did. I had a burglary of a single-family residence in the country. Kicked in the door and too various items, including some from the bedroom. The first arriving deputy noted a watch on the bedroom floor and learned from the owner that it had been on a dresser that morning. The deputy dusted the watch and found a big fat fingerprint on the back. Exceptional latent. As clean and perfect as you could ask for. Occupants were eliminated. Construction was going on at the time down the county road from the intersection near the house. That a construction worker had seen the owner leave that morning and taken the opportunity was not unlikely, since only small items were taken. (Most rural burglaries at the time were substantial clean-outs by well-prepared burglars from nearby cities.) I took the latent to Charlie Parker in Austin to make use of his access to AFIS. Nothing in the state database, but found a hit and match to an individual arrested a few weeks earlier in Austin as being intoxicated in the car with a driver who was DWI. Suspected burglar tools were found in the car. The man had no ID whatsoever. He gave a name and date of birth that had no history, and his prints did not match any history. He had to be considered unknown, other than the fact that he had at least once used a given name.

I did not wish to process a charge against the given name and date of birth alone. It was all too possible that he had used someone else's information, and that would have caused the innocent person to be arrested, and the name was very common. If I remember correctly, I charged "An Hispanic male who has used the name <name given at booking> and whose photograph and fingerprints are attached as Exhibit A and by this reference included in this Complaint for all purposes." That constitutes a unique person. The warrant entry carried a notation that any officer with a person of that name and date of birth in custody should request a fax of the photograph and fingerprints. He was subsequently indicted in the same style. Eventually, he was again arrested in Austin, again drunk, and again gave the same name, which may or may not be correct, and was successfully prosecuted for the burglary. The inclusion of the name in the complaint and warrant was mainly to have a name that could be entered as wanted. The unique identification was really by means of the fingerprints.

SConner wrote:Yes G, a John/Jane Doe warrant is exactly what I was referring to, thank you for wording it much better than I did just off the cuff.

WRT the statute of limitations for crimes, each state words their statutes a little differently. The way the statute of limitations for some crimes here in AZ reads, arguably if we don't have a clue who the suspect is, the clock isn't ticking on the statute of limitations.

http://www.azleg.gov/FormatDocument.asp ... ocType=ARS

http://www.azleg.gov/FormatDocument.asp ... ocType=ARS

I dare say that the AZ legislature has recognized that statutes of limitation are not meant to relieve a person of possible prosecution for a crime just because they've escaped detection for 'x' period of time but rather the idea of a statute of limitations is to prevent a known/named/suspected offender from walking around with the proverbial Sword of Damocles hanging over him/her wondering when/if the State will ever arrest me.

At least that's the interpretation of my non law school trained mind.

Your AZ statute is pretty close to most others. Note that it does not say that the clock isn't running until you have a suspect. The clock isn't running until you discover the crime - or until by any reasonable measure it should have been discovered. Once you know of the offense, the clock is running, without regard to whether you suspect anyone. It actually does relieve a person of criminal liability if they can manage to avoid being charged with the offense until the period runs out. One catch, though, is that any part of that time you're out of the state doesn't count - the clock stops when you're out of state. In the AZ version, you're out of state if there can be no reasonable showing that you're living in the state.

I think the primary underlying rational is that it should not be allowed that the state keep a nice criminal case on ice until they happen to want you. The statute doesn't care how much they know about who did it. The only way to say if the state actually knows who did it is that they have charged the person. But the bottom line is that if you can escape discovery or escape having charges filed within the period, and you remain in the state, you're free.

The diligent discovery clause means two things. One is that I (the police) cannot pretend to not discover the crime and therefore keep the period from running. And you can't escape prosecution by being so clever as to conceal the crime for years. That's probably most applicable in financial crimes.

But what if you hadn't gotten that AFIS hit Gerald? What if you just had that unidentified latent print that didn't hit to anybody? Would/could you have indicted that latent print in the same manner as a DNA profile? At least you had a photograph and physical descriptors to describe the person who gave a bogus name from their booking sheet.

I think that if I had not found the full ten-print set and an arrest in a situation suggesting criminal activity, I think I would have first gone the intelligence route. That would be getting with all the surrounding rural agencies with the information that I had an apparent active burglar and one good print that didn't hit. In this kind of rural crime in an area near where four counties come together, you can often start talking about it and recognize that you all have pieces. One may have a vehicle description. One may have a physical description. Etc. While I could have charged the print alone, I'd still have to have found the man, since I would have no way to enter the warrant. I'd have only the ability to park the print in AFIS and hope he did something to get arrested, either in Austin where they would watch for him in the local agency AFIS or something significant enough to get the prints in the state system. I've got five years to ID him. If I can't do it in that time, he's probably either died or left the state or given up crime altogether. If the intelligence route doesn't produce (and the information sharing has a short working life before the other agencies forget about it), it's wait for an AFIS hit. Not worth a warrant or indictment that will, frankly, be a management problem, because it will just sit in the warrant file without an NCIC entry with a note on it explaining why. So, with no name to hang an NCIC entry on, it wasn't worth it. Probably only murder would have made it worth it, and there would be no limit in murder so no need to charge to stop the clock.

And I have to admit that part of the reason for charging by fingerprints in such a routine burglary was just to do it at least once. That, and that it was just such a fabulous print developed by a very new rookie, and I was working pretty hard to get patrol deputies to hunt for prints. Catching this guy was huge motivation for them.