The Forensic Artist and the Statute of Limitations
Detective Charles E. Holt Jr.
Miami-Dade Police Department
Forensic Artist Unit
After completing and drawing of a sexual battery subject, I told the lead detective that I enjoyed aging wanted subjects. I told her that I liked to find subjects that have been wanted for more than 10 years. Although a forensic artist, I'm still a detective and I sometimes locate wanted subjects using the department's many computer data bases. After arresting these fugitives, I compare my drawings to their actual appearance to test my aging accuracy.
During our conversation, she related an incident that occurred to her. Seven years ago, she had an arrest warrant issued for a subject wanted for rape. Once the warrant was issued, she turned her attention to her many other cases. Just recently, the subject was arrested on her warrant.
The defendant's attorney filed a motion to dismiss the charges. At a hearing, the defense attorney asked the detective what she had done during the last seven years to find and locate his client. She explained that she had routinely checked to see if subject had been arrested. She spent most of her time investigating other cases constantly being assigned to her. The answer didn't satisfy the lawyer. He pressed her. What active steps did she take to locate his client? The judge ruled against the defendant, only because he had fled to another state, hiding behind a different name and date-of-birth. The judge indicated that if the defendant had not done that, he would have dismissed the charges because the detective did not actively seek the subject, allowing the statue of limitations to run and expire.
I found that the sexual battery detective's experience was not unique. A robbery detective told me that charges against a robber almost were dropped because the subject eluded police for almost 2 years. Three subjects robbed and shot two victims inside a convenience store. Two subjects were quickly apprehended. One-and-one-half years later, one of the victims died from the gunshot wound. A short time later, detectives located the third subject. He confessed to the robbery. His defense attorney argued that charges should be dismissed because the lead detective did not attempt to trace the subject through telephone and credit card records, surveillance and continuous contacts with family members. Although the statue of limitations had not expired, the lawyer argued that the case should be dismissed anyway. Key defense witnesses (in which detectives knew nothing about) could not be located and the defense could not mount a proper defense, the attorney argued. The judge refused to dismiss the charges, but he took 2 months to ponder whether the defendant's constitutional rights were violated.
These conversations lead me to Joe Robinson of the felony screening unit of the Miami-Dade County State Attorney's Office. Joe provided me with twelve cases where defendants, arrested for old outstanding warrants, had their charges dismissed because defense attorneys convinced judges that the statue of limitations had expired prior to the arrest or that constitutional rights were violated because the police did not diligently search for the subjects. I'm not a lawyer, but I believe we police officers have a problem.
Here's an example. On May 08, 1996, Florida's Third District Court of Appeal issued its ruling on Bradley M. McNeil v. State of Florida. The ruling stemmed from a state attorney's decision, made on November 30, 1982, to charge Bradley McNeil with grand theft after McNeil failed to pay for the use of a rental car. A capias warrant was issued for McNeil's arrest. a detective verified that McNeil did not live at the address he had given the rental car agency. No other efforts were made to locate McNeil. Twelve years later, on March 15, 1995, McNeil was arrested on an unrelated charge and he was also arrested on the outstanding grand theft warrant.
McNeil asked the courts to dismiss the grand theft charge, claiming that the three-year statue of limitations had expired. Florida law states that the prosecution of a non-capital, non-life felony, such as grand theft, must be commenced within three years after the alleged offense. Prosecution can occur after three years if an indictment, information, capias, summons, warrant, or other process is issued within the three years and the delay in arrest after three years is reasonable. The reasonableness of the delay may be determined in light of a defendant's efforts to elude prosecution. The appeals court determined that in the McNeil case, however, that the delay in prosecution was unreasonable. The state offered no evidence that police made any effort to locate McNeil, such as checking obvious sources like telephone directories. The police did not do a "diligent search". of McNeil "in a timely manner".
The words "diligent search" and "in a timely manner" occurs in every case history. The courts consider a diligent search as follows:
In conducting diligent searches for defendant, in order to avoid unreasonable delay in executing process after charge, for purposes of statue of limitations, state must follow up leads and check obvious sources of information, which include telephone book, city directory, driver's license records, vehicle license records, property tax records, voter's registration records, probation office, local utility companies, law enforcement agencies, state attorney's office, schools, armed forces, prison system, marriage records, name change records, relatives of defendant, and witnesses in case: such sources are not all-inclusive, and failure to consult all of them will not result in failure to conduct diligent search. (State v. Mack, App. 4 Dist.637 So 2d 19,1994).
As a police officer, I can tell you that I didn't do all that the last time I obtained an arrest warrant. I did the same thing my friend did. I went to my next assigned case and hoped that the subject got picked up on my warrant. If I was a defense attorney, I would drive the State Attorney's office crazy with these diligent search questions every time the opportunity presented itself. I understand the legal importance of the statue of limitations, but I thought the issuance of an arrest warrant stopped the statue-of-limitations clock. Apparently not.. The clock only stops if we turn over every rock looking for the subject, even if an arrest warrant has been signed.
We forensic artist are an overlooked resource to prove that rocks are being overturned. Working closely with Miami-Dade County's crime stoppers Unit, I have aged about thirty wanted subjects the last several months. Most of those cases have run past their Statue of Limitations. When I aged a subject and Crime Stoppers releases the drawing to television stations and newspapers, maybe the defendant gets caught because of the publicity. But maybe he doesn't. Either way, the drawing and its release contributes to our "diligent search". The "show and tell" argument a prosecutor can make in introducing a forensic drawing to a judge could be a powerful argument.
But a forensic drawing in and of itself will have little impact if investigators do not use them. The sketches have to be handed out to patrol officers, distributed to neighboring law enforcement agencies and given to the news media. If a drawing is lost among the piles of papers on a detective's desk, yes the detective belittles our efforts. But we forensic artist have a responsibility too, to understand the total investigative process. Know how the county warrants bureau and the local crime stoppers unit operates. Know what criminal investigative clearinghouses exist on the local, state and national levels and how forensic drawings can be channeled to them. Understanding the unique problems - administratively, criminally and politically — that confront your detectives. In other words think like cops, perform as artist.
I have yet to experience or hear of the impact a forensic drawing has had in the statue of limitations hearing. Let's change that and let the impact be positive.
Article posted March 2, 2000
Article submitted by the author