Op-Ed Contributor
Still Guilty After All These Years
By SCOTT TUROW
Published: April 8, 2007
Chicago
THIS Friday a 33-year-old man named Juan Luna will go on trial here for the murder of seven people in a Brown’s Chicken restaurant in Palatine, Ill., on Jan. 8, 1993. The investigation of the murders, in which the victims’ bloody corpses were discovered in the restaurant freezer, languished for more than a decade until Mr. Luna’s DNA was identified in the saliva found on a chicken bone at the crime scene.
Having spent some time over the years as a criminal defense lawyer, I find this use of DNA evidence somewhat ironic, even a bit perverse. When I was first exposed to the forensic use of DNA, in the late 1980s and early 1990s, it was seen largely as a tool of the defense, usually resisted by prosecutors who feared manipulation of the underlying science.
Ultimately, hundreds of people around the country were able to demonstrate they had been wrongly convicted, and those successes led prosecutors to realize that the same DNA tests — and experts — could also provide evidence that guilty people had been walking around free for years. The Brown’s Chicken case is but one of hundreds of “cold cases” now being resolved by advances in forensic technology, particularly DNA testing.
Greater accuracy in the truth-finding process is a laudable development. But I worry that the growing capacity of today’s forensics to reach farther and farther into the past seems likely to undermine the law’s time-ingrained notions, embodied in statutes of limitations, about how long people should be liable to criminal prosecution. As the Brown’s Chicken case illustrates, DNA analysts can now examine scant decades-old specimens and produce results of near-certainty in identifying suspects. Nor are the innovations in forensic science limited to the testing of human DNA. Forensic botany can often establish whether plant fragments found on a victim or defendant have a unique origin. Fire-scene investigation has advanced because of new extraction techniques and instrumentation. Fingerprint identification has been revolutionized both by cryogenic processes for lifting latent prints and computer imaging that allows faster and more reliable identification of partial prints. Forensic pathology, ballistics and forensic anthropology have also moved ahead rapidly.
As a result, forensics now sends the criminal law into a region it has formerly entered only with reluctance: the distant past. In almost every American jurisdiction, the statute of limitations prevents prosecution of most felonies after a specified period, five years in the federal courts, three years in my home state, Illinois. The primary exception nearly everywhere is murder, which has always been prosecutable whenever sufficient evidence emerges. When law enforcement began using forensic innovations in the 1990s to investigate “cold cases,” they were applied to the mountain of unsolved murders that had accumulated as homicide rates rose in the 1960s.
But now the frequency with which cold-case crimes committed decades before are now being solved — along with the popular TV shows portraying such triumphs each week — have led to increasing public pressure in many jurisdictions not only to apply new forensic technology to a broadening array of old cases other than murders, but also to erase the time limitations that the criminal justice system has long observed for those offenses.
The reasons for the pressure are obvious. While murders are the gravest offenses we know, they are not the only crimes whose memory continues to haunt the public. The victims of rapes, or serious assaults, or kidnappings are rarely at peace while a perpetrator remains at large. In addition, unsolved crimes that seem to reflect group hatred can continue to divide a community, even years later.
The Emmett Till Unsolved Civil Rights Crime Act, now pending in Congress, would appropriate $10 million for investigation of pre-1970 homicides. But it also contemplates collecting evidence of offenses that did not result in death, like church and synagogue bombings and racially motivated abductions. Baltimore, Dallas, Phoenix, Charlotte, N.C., and Fairfax County in Virginia have cold-case squads that look into unsolved sexual assaults and abductions from years past, and in Montgomery County in Maryland, cold-case investigators focus on a variety of violent crimes besides murder, including armed robbery.
Scott Turow is the author, most recently, of the novella “Limitations.”
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As such developments continue, the public will inevitably come to question why we have statutes of limitations at all, particularly since they strike many laypeople as nonsensical. Why should a criminal go free merely because it took a long time to catch him? But as usual with broadly observed legal rules, they contain a measure of wisdom.
The law has always feared the hazards of long-delayed prosecutions. The chief concern impelling limitations — that memories dim over time and that evidence is likely to become lost or dispersed — appears at first blush to be irrelevant in the face of today’s more exacting science. If DNA can prove, within 99.9 percent certainty, that a defendant was the perpetrator of an unsolved rape, why not send him to prison? Yet what if his defense to the charge is consent? Forensic science can often establish identity with near certainty, but it is not a time machine that can transport us backward so that we recapture every nuance of a largely forgotten event.
Erasing statutes of limitations as to crimes that can be newly proved also risks sweeping in offenses that were previously ignored. Revised political judgments and changes in social mores can motivate prosecutions occurring decades later. In a Sunday serial that ran in this newspaper last spring, I wrote about a judge who 40 years later must reconsider his role in a sexual incident that would now be adjudicated as a rape, but which in his youth was regarded as something the drunken female victim “had coming.”
The law is a fluid thing, and there is an inherent unfairness in initiat- ing a prosecution decades later when legal rules and community expectations have changed. If a jury — or the police and prosecutors — now strongly disapprove of conduct to which they would have once turned a blind eye, it’s natural to wonder whether the defendant would have acted the same way in today’s ethical climate.
Statutes of limitations have also traditionally embodied a moral judgment that if a person has lived blamelessly for a significant time, he should not have the anxiety of potential prosecution hanging over him forever. Violent crimes are usually the province of young men, and it is often the case that one of the principal purposes of the criminal justice system — keeping the criminally inclined off the streets — vanishes with time.
An 18-year-old who shoots and paralyzes someone has committed an offense whose consequences never end for the victim, but there is still an element of pathos if punishment is visited decades later on a perpetrator who’s grown to be a much different person and a valued community member.
And if we decide that today’s scientific evidence should allow the statute of limitations to be removed on more serious offenses like rapes, kidnappings and hate crimes, there will be a push to remove the statute for lesser offenses too. It’s an inevitable consequence that in investigating old and serious crimes, evidence of more minor offenses will emerge.
Identifiable DNA will turn up in the saliva underneath the stamp on a threatening letter a murder victim received, or in a smudged and otherwise unreadable fingerprint on currency stolen during a bank robbery in which hostages were taken. Having committed the resources to cold-case investigations, the police and prosecutors will be reluctant to allow those newly provable offenses to go unpunished, especially when, as in examples like these, there is reason to suspect that the offender also committed the more serious crime.
The wide variables — the gravity of the offense, the strength of the new evidence, the difficulty of mounting an effective defense, the degree to which changed expectations drive the new prosecution — call for applying balancing tests in deciding whether a statute of limitations should be exceeded in a given case. But criminal law, generally speaking, is the legal area that most favors clear rules, both to rein in prosecutorial discretion and to give fair notice to everybody — victims, perpetrators and the community at large — about what to expect.
Pushed to choose, most contemporary legislatures inevitably vote to toughen criminal rules, and thus we can expect statutes of limitations to be eliminated or tightened in future years. And with their retreat will go an element of lenience that has always reflected the complex moral judgments that are necessary when crimes fall under the lengthening shadow of time.
Scott Turow is the author, most recently, of the novella “Limitations.”
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