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Protection vs. privacy

Legislation would let police collect DNA in felony arrests
Wednesday, January 31, 2007 | 12:00 a.m. CST; updated 5:41 a.m. CDT, Monday, July 21, 2008

In the summer of 1997, a 15-year-old Columbia girl reported that she had been raped in her own bedroom. There were no suspects, but a DNA sample was taken at the scene and entered into a national DNA database.

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Rachel Scott sorts convicted offenders’ DNA samples at the Missouri State Highway Patrol crime lab. The lab, located in Jefferson City, analyzes more than 6,000 DNA samples each month.

(ANN HERMES/Missourian)

Nine years and three months later, a suspect was taken into custody after providing a routine DNA swab, part of a probation agreement on an unrelated charge. The DNA that was collected identified Corrie Howlett of St. Louis as a potential genetic match to the 1997 evidence.

Howlett is now back in Columbia awaiting trial on charges of forcible rape and first-degree burglary.

His case highlights the potential benefits of the nationwide program requiring DNA profiles of all those convicted of sex crimes, and of those convicted of violent felonies in 43 states, for inclusion in a national

DNA database. But if legislation introduced in the Missouri House of Representatives on Tuesday eventually becomes law, police will be allowed to take DNA from anyone merely arrested in a felony case. Traditionally, police must get a warrant for such a search.

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Scott prepares a formamide solution used to process DNA samples. The Highway Patrol’s crime lab has been able to analyze more samples since it received a new genetic analyzer with federal grant money two years ago. (ANN HERMES/Missourian)

The number of profiles in the DNA indexes, and consequently the number of people implicated like Howlett, could grow enormously. But the proposed law and others like it have raised concerns among civil libertarians that they are an invasion of privacy and contradict the guarantee of presumptive innocence.

“Any citizen can be suspected of a wrongdoing,” said Brett Shirk, of the American Civil Liberties Union of Western Missouri. “And is a hunch or a guess any reason to collect your DNA? ... The government has no business collecting samples of people who have not been convicted of a crime.”

Seven other states have already passed similar legislation with varying guidelines on whose DNA can be taken. Most of the measures seem like logical extensions of the state’s existing law in that DNA can only be taken from people arrested on suspicion of a felony or a sex crime.

But California’s Proposition 69 and the federal statute covering

Washington, D.C., and FBI arrests allow for DNA sampling of suspects, regardless of the crime. California’s law will be fully implemented in 2009 and has been referred to as “draconian” by the ACLU.

State Rep. John Burnett, D-Kansas City, the legislation’s main sponsor, says that the proposed law would not violate individuals’ rights and that DNA collection is the state’s obligation.

“I think that ... we’re required as a state to acknowledge that we’ve got this scientific breakthrough and to make use of it,” he said.

“I think that we as a society, as a government, have the right to investigate crime, and that we as citizens have the right to be presumed innocent. But ... the fact that you’re presumed innocent until proven guilty doesn’t mean that the state shouldn’t continue to try to prove criminals guilty.”

Burnett goes further, disputing a person’s right to protect his or her identity from the state.

“My position and the position of several other states that have already passed this is that you don’t have the constitutional right to not give (DNA) up, to keep your identity a secret,” he said.

He did say that the information obtained should be closely guarded from private entities, such as insurance companies.

Meanwhile, some involved in the practical use and application of DNA evidence see both the possible good of the measure and its troubling potential uses.

“In general, DNA is the innocent defendant’s best friend,” said Rob Warden, director of the Center on Wrongful Convictions at Northwestern University in Chicago, which has used DNA to exonerate 193 people since 1989.

Dan Viets, general counsel for the ACLU of mid-Missouri, said the new legislation could effectively shift the burden of proof to the defendant.

“The DNA may prove the defendant innocent — but that’s not the defendant’s obligation,” he said. “It is fundamental to our system of justice that the burden of proof is on the prosecution and that the defendant cannot be compelled to give evidence against himself.”

Warden adds that there is “tremendous potential to violate privacy.” DNA is collected on a case-by-case basis, he said, not “in a general sweep,” and he sees no problem with the current set-up.

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Police can now obtain DNA from a suspect before conviction — with probable cause and a warrant issued by a judge. The proposed law would cut out this traditional process of obtaining certain information through separate divisions of the state, creating power checks on each.

Burnett, the bill’s sponsor, doesn’t see a problem.

“Right now we fingerprint them and we photograph them and we measure them and we take all the biometric information from them. ... And the DNA identifiers are as much a part of your identity as your fingerprints,” he said. “So a person that is arrested should be required to give up that information, just as they’re required now to give up their fingerprints.”

Senate Bill 1000, passed in 2004 in Missouri, requires a DNA sample of every person convicted of a felony or sex crime. It also applies to people

on probation or under state supervision. It was the requirement

that DNA be collected from those on probation that led to Howlett’s incrimination last year.

Howlett was living in Columbia in 1997 when the rape was reported, according to court documents. He had moved to St. Louis and was serving probation on unrelated charges when the legislation passed in 2004.

When it went into effect at the start of the following year, the state made a push to create profiles of every person incarcerated, on probation or on parole for a felony conviction before he or she left the supervision of the Department of Corrections. The push increased the number of profiles from 27,000 at the end of 2004 to 122,127 at the end of 2006.

The influx meant the four FBI-certified labs in Missouri had a backlog of profiles which they are still working on, said William Marbaker, assistant director of the Missouri State Highway Patrol crime lab in Jefferson City.

Howlett’s DNA sample, taken as part of this push, alerted police to the possibility of a suspect in the unsolved rape case. Police couldn’t immediately implicate Howlett because the DNA was taken by an outside source and was not considered a controlled test, said Sgt. Ken Hammond, supervisor of the major crimes unit at the Columbia Police Department. But the sample was enough for Hammond to obtain a warrant to go to St. Louis, arrest Howlett and get a second, controlled DNA sample from him.

The DNA index system, which exists at the national, state and sometimes local level, is set up for cases just like Howlett’s. The crime lab maintains two databases of profiles for inclusion in the National DNA Index System. The first database contains DNA profiles of convicted felons or sex offenders in the state; the other contains DNA samples that are evidence from cases but match no existing profiles.

About once a week the two are run against each other, Marbaker said, and police are notified of matches. That’s how Columbia police learned that Howlett was a possible match to the evidence from the 1997 rape case.

The profiles are also run against the national database about once a week, which can tip off police to a crime committed in another state by a local suspect, a crime committed locally by an out-of-state suspect, or can tie together multiple crimes committed by one person who is still not in the system. It allows police in different cases with a single suspect to pool information.

However controversial the new measures may be, they have been considered legal under the precedents through which courts have interpreted them.

In the case of Rise v. State of Oregon, a federal appeals court held that the state can interfere without probable cause if the intrusion is “minimal” and “justified by law enforcement principles” and that taking blood, even for DNA profiling purposes, constitutes “only a minimally intrusive search,” effectively condoning the sampling of suspects.

A federal appeals court upheld California’s Proposition 69, though it outlawed the retroactive sampling of previous detainees. The ACLU said it intends to challenge the suspect sampling portion again when the law goes into effect on Jan. 1, 2009.


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