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.