DNA Doubts: New State Law Raises Questions
This is reprinted with permission from The News & Observer of Raleigh.
By Anne Blythe
And Lynn Bonner
The News & Observer
In the coming year, mail carriers will deliver an estimated 30,000 samples of spit and skin cells to Raleigh from jail booking rooms across the state. The envelopes could contain the keys to innocence or guilt.
The state’s new DNA collection law will require officers to swab the cheek of anyone arrested for — but not convicted of — murder, sexual offenses, burglaries, cyberstalking and other serious crimes.
In the six months before the new law takes effect, the State Bureau of Investigation will order thousands of test kits and develop training programs for those who will collect the samples. The genetic material will then be tested and stored in an SBI database accessible to cold-case investigators across the country.
[The SBI is now under new leadership in the wake of Attorney General Roy Cooper’s decision, announced Thursday, to replace the bureau’s director, Robin Penderegraft, with his former legislative liaison, Greg McLeod. Cooper acted after questions were raised about the agency’s work with bloodstain pattern analysis.]
As court and SBI officials prepare to tend to the practical issues of applying the new law, others are tangling with legal questions that remain unanswered.
Supporters of the new law describe the DNA sample as little more than the 21st-century version of a fingerprint: identifying information that sets a suspect apart from others. But DNA also might implicate a suspect’s father, brother, son or other close kin if investigators find near-matches that cast suspicion on relatives with similar genetic identifiers.
During the past couple of decades, DNA has transformed criminal justice, not only helping to unravel crimes and serve as an ultimate diviner of guilt, but becoming society’s great exonerator, freeing hundreds of innocent people. Now, though, some worry that too much DNA collection could threaten privacy rights and the constitutional protection against unlawful search and seizure.
“It strikes me as sort of letting a genie out of a bottle,” said Joe Kennedy, a UNC-Chapel Hill law professor. “You should only collect someone’s DNA against their will ... on a case-by-case basis. You should not collect it across the board.”
Broader DNA collection has gained support from President Barack Obama and even some defense lawyers, and advocates say that threats to civil liberties can be guarded against and that the benefits of solving crimes far outweigh any risks.
State Attorney General Roy Cooper pushed for the new law, arguing that, in the first year alone, the broader authority will allow law-enforcement agencies to solve 100 cases, an estimate he extrapolated from the number of crimes they’ve solved using DNA already collected from convicted felons.
As it stands, the courts have upheld DNA sampling of felons based on the theory that the convicted have fewer privacy rights.
Though the U.S. Supreme Court has not yet ruled on the new DNA collection laws already enacted in 21 other states, it generally has held that for intrusions of the body during an investigation — such as collecting blood, hair and DNA from suspects — police need a warrant.
As the DNA collection bill sailed through the legislature this summer with little opposition, some of the thorny privacy questions were being tested in courtrooms and government chambers in some of the states with collection laws already.
In mid-July, the 9th Circuit Court of Appeals in San Francisco heard arguments in the American Civil Liberties Union’s challenge of California’s law that forced an arrested anti-war demonstrator to submit to a cheek swabbing after she was accused of forcibly trying to free another protester.
In North Carolina, the estimated cost of the new collection program is nearly $1.9 million a year.
That includes money for eight new SBI workers in the state’s crime lab, money for sending samples to outside labs for analysis and the estimated 30,000 new collection kits needed each year. Some of the money will come from an increase in court fees starting in October, as well as federal grants and state coffers.
In recent months, defense lawyers and others have pushed to have the SBI labs moved from under the auspices of the attorney general to more neutral research ground.
In February, when Greg Taylor became the first man to be exonerated by the fledgling N.C. Innocence Inquiry Commission process, questions arose about the credibility of the SBI labs after an analyst withheld evidence. Cooper ordered an independent review of lab operations.
Despite those issues of credibility, there has been clear evidence in many court cases that the labs have a backlog of work and are slow to get analyses back to prosecutors, hobbling the court process.
Having so much DNA in state databases could lead not only to more convictions, but also to more complicated legal questions that no one has answered.
As North Carolina lawmakers were negotiating which offenses would lead to DNA collection, California law enforcement authorities were making headlines for nabbing a suspected serial killer using DNA from his son, a convicted felon.
State Rep. Wil Neumann, the Gaston County Republican who sponsored the DNA bill, said it does not deal with the issue of using DNA samples to search for relatives.
Neumann said he sees the law as an effort to catch up to science.
“These are people who are picked up for a crime,” Neumann said. “One of our first obligations is to protect citizens of the state.”
The law calls for expunging DNA from the state database if charges are dropped or an individual is convicted of a lesser crime or found not guilty.
Prosecutors cannot use DNA samples or database information that should have been erased in a criminal case, according to the law.
Some defense lawyers worry that people will be arrested on trumped-up charges expressly to collect DNA, only to have the sample compared against evidence in other unsolved crimes.
Critics say their case against the law is bolstered by the fact that lawmakers thought it necessary to dictate the criteria for deleting DNA evidence.
“There’s no probable-cause requirement,” said Tom Maher, head of Indigent Defense Services in North Carolina. “You’ve been arrested for this crime, and they can use your DNA. Then if you’re not convicted, they have to expunge it.”
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