While making dinosaurs from ancient trace DNA may be the stuff of fiction, prosecuting crimes with the microscopic forms is very real. The Tennessee legislature has recently passed a bill making DNA an even greater legal dynamo and diminishing the protections that statutes of limitation are meant to provide. In other words, if you committed a crime in the nineties, for example, get nervous.
Tennessee Code Annotated § 40-2-104 provides that one of the ways a prosecution begins is by the issuance of a warrant for arrest. Effective July 1, 2013, Tenn. Code Ann. § 40-2-104 will include an amendment allowing the prosecution to issue an arrest warrant with just a DNA profile as the identifier of the offender. This legislation effectively nullifies any statute of limitation for crimes that involve the collection of DNA, as long as the arrest warrant is issued before the statute of limitations. The passage of the statute comes after last year’s Tennessee Supreme Court decision that upheld the attempted rape conviction of Robert Jason Burdick known to many as the “Wooded Rapist.” State v. Burdick, 395 S. W. 3d 120 (Tenn. 2012).
In Nashville back in 1994, a prominent attorney was attacked in her home in the middle of night. This assault came during a time when a series of sexual based attacks were occurring against women spanning several counties. The attorney fought the rapist, and in the struggle bit his hand, ripping off skin. After giving up from the victim’s ferocity, the Wooded Rapist instructed her to go into the bathroom and left the scene. A DNA profile was developed from the skin left behind.
The statute of limitations on attempted rape is eight years in Tennessee. In 2000, an arrest warrant was issued for John Doe with the DNA profile as the additional identifier. In 2006, an, indictment was issued for John Doe, arrest warrant GS122, and the Davidson County Criminal Court issued a capias in replacing the unserved warrant.
In 2008, fingerprints from a 1999 application for employment for the Department of Corrections were matched with the skin recovered from the scene and linked to Robert Jason Burdick. He was brought in and a DNA test was done. It was also a match. After being indicted, he was tried and convicted of aggravated attempted rape. The court found that a criminal prosecution has started if a warrant has been issued, and that DNA is unique to the person, therefore, it is enough of an identifier to list on a warrant even without a name.
The Tennessee legislature has now codified this ruling. Essentially any criminal act, if DNA was left behind, can be prosecuted years later as long as the warrant with the DNA identifier is issued before the statute of limitation’s running. The burglar who cut his arm on the window glass, the assailant who spit on her victim before fleeing, and the white collar thief whose hair follicle fell onto the keyboard as he downloaded the company secrets, are all examples of those that could be brought into court to defend the crimes of their past decades. While we may not be able to build dinosaur theme parks from DNA, the state of Tennessee can reach deep into the past to prosecute us for the crimes we had forgotten that we committed.
By Daniel P. Bryant, Attorney at Law
and Angela Middleton, Paralegal
CRIMINAL DEFENSE, LLC 