Legal limits

Aug 20, 2008 at 12:00 am

Michigan criminal law tried to catch up with science. Now it's struggling with reality.

In 2001 lawmakers updated the state's criminal code to remove the statute of limitations for some charges, such as rape. The reasoning was that DNA testing had made identification possible on older cases where evidence was preserved.

But if a crime's statute of limitations had expired before the law took effect, that limit would be honored, according to the legislation. In other words, a rape — which has a six-year statute of limitations — could not prosecuted if it was committed in 1995 or before.

And that's why Macomb County Prosecutor Eric Smith says he hasn't charged a man identified by DNA testing as the actual attacker in a 1994 rape for which the wrong man did nearly a decade in prison.

"Any crime that that statute of limitations had already run out on cannot be revived," Smith says. "That's how the statute was written by the Legislature. I can tell you that we are certainly investigating every possible avenue to get around it. That line in that new statute of limitations certainly makes our job more difficult."

And "frustrating," he adds.

But forget Smith. Imagine how Kenneth Wyniemko feels. He's the guy who was wrongfully convicted of the 1994 rape before DNA testing exonerated him five years ago. (See "Beyond Innocence," July 2, 2008.)

For years, he wondered who had gotten away with the brutal assault. Then in May, Clinton Township police told him the Michigan State Police lab had found a match for a DNA sample left at the scene of the rape.

The lack of charges has him frustrated.

"It's ridiculous," Wyniemko says. "How can justice be served if they know who the real rapist is? At least charge him and let the court decide."

Smith told Metro Times the man matched by DNA to the rape is in jail until the end of this month. Prosecutors are investigating "every possible way" to charge him.

"But I guess you can surmise that there aren't any new charges, and we're running into legal issues," Smith says.

News Hits is edited by Curt Guyette. Contact him at 313-202-8004 or [email protected]