Criminal charges are still a stretch in Wetterling case

Investigators are again on the hunt for Jacob Wetterling's red hockey jacket, size 5 white Nike high-tops and other evidence that could lead them to the person who abducted him more than 26 years ago.

Without that evidence, or a suspect's confession, there will likely be no criminal charges in a case that has gripped Minnesota for a generation. The state's statute of limitations, which dictates how long prosecutors have to bring charges, has long expired for either criminal sexual conduct or kidnapping complaints.

The only charge still available to prosecutors would be homicide, and that could be a difficult case to prove without evidence of a body.

"They're difficult to put together," said Judy Johnston, a retired Hennepin County assistant attorney who was a lead prosecutor on violent crimes, including murder and child abuse. "I really do think that discovery of the body, assuming we lost Jacob, is going to be necessary."

The renewed interest in Wetterling's disappearance comes after new evidence surfaced in a separate Cold Spring kidnapping and sexual assault in 1989, which investigators say could be linked to Wetterling's case. New DNA testing has tied Daniel Heinrich, 52, of Annandale to the January 1989 sexual assault of Jared Scheierl, now 39. But Heinrich, who was arrested Oct. 28, could only be charged with receiving and possessing child pornography.

Despite the new DNA evidence, prosecutors can't seek criminal sexual conduct or kidnapping charges against Heinrich in Scheierl's case because the statute of limitations expired in his case in 1998. In 2000, the Legislature completely removed the time limit for kidnappings or criminal sexual conduct complaints if evidence that can be tested for DNA has been collected and preserved — two years too late for Scheierl's case.

"We have one of the most liberal laws in the country," said Jeanne Schleh, a retired Ramsey County assistant attorney who wrote the manual on the prosecution of child abuse. "But there has to be an end point. Some cases are going to fall in the cracks. And this is one of them."

The same is true in Wetterling's Oct. 22, 1989, case if evidence links the 11-year-old's disappearance to a suspect and prosecutors want to seek criminal sexual conduct or kidnapping charges. However, if evidence such as Jacob's clothing is found and can be linked to a suspect, it's likely prosecutors would seek homicide charges.

"When some kid is missing this long … there's a strong assumption the kid is dead," defense attorney Earl Gray said. "You don't need the body."

There is no statute of limitation for homicide. And other cases in Minnesota have ended in murder convictions without a body if there's strong circumstantial evidence.

Last month, authorities named Heinrich a "person of interest" in Wetterling's disappearance, and the warrant to search his home included items such as Wetterling's shoes and hockey jacket. But Heinrich, who remains in the Sherburne County jail, hasn't been charged in the case, and he's long denied any involvement in the boy's disappearance.

Wetterling was taken by a masked gunman on a rural road not far from his St. Joseph, Minn., home. Investigators said last week that a tire track impression left at the scene corresponded to the tire tread on Heinrich's Ford EXP and a shoe print had the same tread pattern as Heinrich's shoe, though they aren't "exact" matches.

Jacob's mother, Patty Wetterling, didn't return calls for comment, but said earlier last week that the family would let law enforcement and the process play out.

Scheierl said he's happy he has his answer, thanks to the recent DNA development, to who sexually assaulted him when he was walking home at night when he was 12 years old.

"People wanted me to be bitter about the statute of limitations [ending]," he said. "But I just don't want to go there. I don't want anger to determine my decisions."

While he can't pursue criminal charges, Scheierl could pursue a civil suit thanks to another legislative change — the 2013 Minnesota Child Victims Act, which opened a three-year window allowing sex abuse cases that were otherwise barred by the statute of limitations to go to court. Before then, Minnesotans had until age 24 to sue in such cases. The law change has sparked an unprecedented explosion of abuse lawsuits against the Catholic Church and the Boy Scouts of America.

It's unclear whether Scheierl will pursue the case in civil court. Earlier this week, he said he was "unaware" of the possibility of filing a suit and that he hadn't sought legal advice.

As time goes on, cold cases like Wetterling's can be difficult to prove and defend. Evidence becomes harder to track down, witnesses may no longer be alive and people's memories are less reliable.

"Just because you've found DNA doesn't mean you've proved all the elements of a crime," defense attorney Joe Friedberg said, adding that a majority of cases whose limits have expired don't involve violent crimes. "There are really good reasons for having the statute of limitations. Cases get old, proof gets old."

However, DNA technology has advanced dramatically over the past two decades, with scientists now able to test smaller, microscopic amounts of genetic material. It's becoming a crucial crime-solving tool, which can also be used to prove a suspect's innocence, and has prompted the expansion of Minnesota's statute of limitations over the years.

Back in 1982, a criminal sexual conduct complaint had to be filed within three years. That was expanded over the years, and in 2000 the statute was changed so that there's no limitation if evidence can be tested for DNA.

"Suddenly it became a possibility you could put these cases together," Schleh said.

Victims who come forward can help a case like Wetterling's if investigators can establish a suspect's pattern, she said. And somebody who was victimized later could now "be on the right side of the statute of limitations," she said.

All the renewed interest in Wetterling's case brings more hope it will be solved, but it's still a ways off.

"The case still needs a break," Schleh said. "It's a very difficult case without a new form of evidence."

Staff writer Jenna Ross contributed to this report.

Kelly Smith • 612-673-4141