Forfeiture Of The DNA Indictment

The opening paragraph of Judge Eugene Pigott’s opinion in People v. Lerio Guerrero seems clear as can be.

The primary issue on this appeal is whether defendant, by pleading guilty to all of the counts of an amended indictment, forfeited his right to challenge the legal sufficiency of the so-called “DNA indictment”1 and the subsequent amendment that added only his name to that indictment. We hold that defendant, by pleading guilty, forfeited his right to challenge both the underlying “DNA indictment” and the amended indictment that named him.

So the defendant lost. And he lost because he copped a plea, and when you plead out, you give away your challenge to the DNA indictment, and its subsequent amendment. How much clearer can it be?

What’s a DNA indictment? It’s a new-fangled weapon in the war against crime, because when the prosecution doesn’t know the identity of the perpetrator, but has the perp’s DNA available, indict the placeholder until you figure out whose DNA it is, then swap out the captions and, bang, you’re good to go.  The placeholder serves to stop the running of the statute of limitations and shift the burden of delay from the prosecution to the defense. It’s not that they didn’t act within the time frame the law required, but that the defendant, by concealing his identity behind his DNA, caused the delay to ensue.

Supreme Court denied defendant’s motion to dismiss the DNA indictment as defective and in violation of defendant’s right to a speedy trial, and upheld the amendment of the indictment. The court held that the prosecution was not time-barred on speedy trial grounds because investigators had exercised “reasonable diligence” in attempting to locate defendant.2

Having lost the motion at the trial level, and discretion being the better part of valor, the defendant took the plea.

Defendant then pleaded guilty to each count in the amended indictment. As a condition of the plea, he also executed a written waiver of his right to appeal. Supreme Court sentenced defendant as promised to a 15–year prison term on each count (to run concurrently), with five years’ postrelease supervision.

By enjoying the benefit of the bargain, the sentence to which he agreed in combination with his explicit waiver of his right to appeal, what’s left to complain about? Judge Jenny Rivera explains in dissent:

Defendant does not challenge the voluntariness of his plea, nor does he claim that the DNA indictment or amended indictment failed to provide adequate notice of the charges. Rather, defendant contends that the DNA indictment was not based upon legally sufficient evidence establishing his identity as the perpetrator, and that the indictment was improperly amended by reliance on hearsay statements. Specifically, defendant argues that the evidence submitted in support of the amended indictment should have been presented through live, non-hearsay testimony before a grand jury so the grand jury had an opportunity to assess the evidence in determining whether defendant matched the DNA profile and make a determination as to whether defendant should be indicted. Essentially, defendant argues that the identification of the perpetrator is an essential element of proof that must be established before a grand jury, and that the procedure employed here deprived defendant of his fundamental constitutional right to be prosecuted by indictment for a felony offense, which, according to defendant, is jurisdictional in nature.3

But you waived it. You took a plea. You agreed to waive appeal. And so the New York Court of Appeals spanked this recalcitrant whiner and sent him back to his cell without dinner.

But wait. There’s more.

A defendant who pleads guilty may assert challenges on appeal that “relate either to jurisdictional matters or to rights of a constitutional dimension that go to the very heart of the process.” Here, defendant’s challenge is constitutional in nature because his claim is grounded in the “fundamental right” to have a Grand Jury of his peers determine whether evidence and legal reason support the charges against him. Specifically, he argues that the indictment is defective because the People did not present the linking DNA evidence to the Grand Jury for it to consider whether to charge him as the person matching the DNA profile. (Citations omitted.)

This matters for two reasons. The first is that the constitutional requirement that a felony only be prosecuted upon an indictment requires that the indictment be sufficient or the court lacks jurisdiction. A court without jurisdiction cannot preside over a defendant. It’s essentially the same as plucking a random guy off the street and a judge proclaiming in a stentorian voice, “I hereby sentence you to life plus cancer.”

But the second reason is constitutional speedy trial. While New York has a state speedy trial statute, which has more holes in it than a sieve, there remains an amorphous speedy trial requirement.

Years later, after police obtained a sample of defendant’s DNA during the course of an unrelated investigation, the People moved to amend the indictment upon presentation of double hearsay evidence, asserting that defendant’s DNA matched the genetic numerical identifier. A judge granted the motion. Defendant unsuccessfully moved to dismiss the indictment based, in part, on the People’s failure to present the linking evidence to the Grand Jury. Thereafter, defendant pleaded guilty to the crimes charged in the amended complaint. On appeal to this Court he renews his claim that the indictment is defective and asserts that his guilty plea does not bar this Court’s review. Defendant is correct on both points.

But, he pleaded guilty and waived appeal. Doesn’t that count for anything?

Rather, he claims that substitution of his name for the DNA numerical identifier requires the exercise of the Grand Jury’s accusatory power and cannot be accomplished on submission to the trial court by a motion to amend. The defect concerns who may accuse defendant based on evidence of a match to the inculpatory DNA, and therefore goes to the essential role of the Grand Jury and the “integrity of the process” (id.).

This distinction is critical because while a challenge to the sufficiency of the indictment qua document is forfeited by a defendant’s plea, a challenge to the indictment as the embodiment of the Grand Jury deliberative process may be raised on appeal.

Since the advent of DNA, and its use as a placeholder for an indictment before the statute runs, there has been a question of procedure, whether the process can circumvent all the protections of due process built into the system. That it’s DNA would be particularly problematic, since in contrast with the rationale behind the statute of limitations, there was some pretty damning, if not conclusive, evidence of guilt preserved. There would be a definite smell that a bad guy would go free, even though it was by no means as definite as it might seem on the surface.

But all the complex issues, the constitutional requirements, the intricacies of jurisdiction and speedy trial, were wiped clean when the defendant copped a plea. The Court of Appeals punted, but then, nothing* keeps the wheels of justice from grinding up bodies better than the finality of guilty pleas.

*It’s a very close call with “harmless error,” which may not be as beloved, but is far more brutal (and infinitely more bullshit).

H/T Jim Tyre

8 thoughts on “Forfeiture Of The DNA Indictment

  1. Hal

    At the risk of sounding like I’m blowing happy dust up your shorts, this is an especially insightful piece of writing.

    Thank you.

      1. Hal

        DAMN! I HATE coffee going out my nose. Distinctly unpleasant. And wasteful. Though I’m definitely wide awake now.

  2. TheHaywardFault

    I’m curious about the proximity of “copped a plea” to “copped a feel” in your mind. I’m probably hanging a lantern on my lack of legal knowledge, but your tone certainly conveys a sense that they are morally similar actions.

    Perhaps I’m reading too much into this and this rye is addling my mind.

    1. SHG Post author

      Every once in a while, someone leaves a comment that is so peculiarly bizarre (not the usual, facially stupid kind of bizarre) that it makes you sit there and shake your head wondering, how is it possible this person can still breath? Your comment evokes that reaction. Billy Madison has nothing on you.

        1. SHG Post author

          I like southern rednecks as much as anybody (and I have no idea if he’s southern or redneck, or a tea bagger for that matter), but damn, sometimes you just have to shake your head in awe.

Comments are closed.