Top Maryland law enforcement officials are pushing back against a Court of Appeals decision that prohibits DNA collection from suspects charged — but not yet convicted — of violent crimes, saying the ruling will allow dangerous criminals to go undetected by authorities, the Washington Post reports. Gov. Martin O'Malley, police chiefs, and prosecutors are urging the state’s attorney general to challenge the ruling, which found that swabbing criminal suspects for DNA samples after they are charged is a violation of the suspects’ constitutional rights.
Police and prosecutors say the case could jeopardize the convictions of 34 robbers, burglars, and rapists whose genetic samples were taken after they were charged in separate cases. They also said it will hamper detectives’ ability to solve cold cases.“It really sets Maryland back in the crime fight,” said Col. Marcus L. Brown, superintendent of the Maryland State Police. The case puts Maryland at the center of a brewing national debate that raises the question of how to balance privacy rights and public safety. Federal and state courts across the country have issued mixed opinions on when DNA collection is legal. The governor’s office says 26 states have legislation similar to Maryland’s. The issue seems destined to be resolved by the U.S. Supreme Court.
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Police around Maryland said Wednesday that they would continue to collect DNA samples when suspects are arrested for violent crimes and burglaries, despite a ruling by the state's top court limiting the practice, reports the Baltimore Sun. The Court of Appeals ruled 5-2 that the 2009 law violated a suspect's Fourth Amendment right to be free from unreasonable search and seizure. The ruling did leave open the possibility that police could take DNA samples for the purpose of identifying a suspect at the time of arrest.
The collection of DNA at arrest has been the subject of national debate, because opponents point out that it takes place before a suspect is tried in court. Twenty-six states have laws similar to Maryland's, and many have been upheld in state and federal court. Several law enforcement agencies, including the state Department of Public Safety and Correctional Services, were awaiting a decision on whether the state will appeal before they make changes. State and local officials called for an appeal of what they see as a crucial tool that has linked suspects to other, unsolved crimes. Opponents of the practice said the decision to continue taking samples shows disregard for the Court of Appeals and the law.
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Massachusetts officials have failed to collect the DNA samples of 20,000 felons, as required by law and dictated by the courts, leaving a gaping hole in the State Police DNA database, the Boston Globe reports. The samples' absence was discovered during the mandated updating of the state’s Criminal Offender Record Information database. It raised concern among law enforcement officials that felons were evading the law and have been going unnoticed.
The concerns have grown to the point that State Police have dispatched teams to identify the whereabouts of and arrest certain felons who have failed to provide their DNA samples, including Level 3 sex offenders. Mary Elizabeth Heffernan, secretary of public safety and security, told probation officials and county sheriffs that many of the felons at issue once were in their custody and that the officials should help identify those who have failed to provide samples. State law requires that felons provide a DNA sample within a year of their conviction.
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Bennett Barbour, who was convicted in 1978 in Virginia of a rape he didn't commit, is one of only a handful who have enjoyed vindication, says Slate.com...
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The Harris County, Tx., Institute of Forensic Sciences aids law enforcement in solving property crimes by testing evidence for "touch DNA" - microscopic skin cells containing DNA that naturally rub off when an object, like a car steering wheel, is touched, says the Houston Chronicle. The technology can be used even if the suspect is wearing gloves because there's a high likelihood the skin cells were transferred onto the gloves when the perpetrator was slipping them on.
"It was a pretty incredible tool for us to have to identify some of these suspects," said Sgt. Terry Wilson of the Harris County Sheriff's Office auto-theft division. "These (burglary of a motor vehicle) cases are some of the hardest cases for law enforcement to solve because there's almost never any eyewitnesses. There's very rarely any good evidence left behind, fingerprint evidence and things like that, and once we started recovering some of this DNA, it was pretty exciting there for a while." Since 2008, the institute made more than 3,000 matches to crime suspects in the FBI's Combined DNA Index System database, or CODIS, a national database used to store DNA profiles. Of those, about 75 percent were for property crime cases.
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After 12 years and $785 million in federal funding to reduce a DNA testing backlog, a serious problem continues to exist, reports Stateline. Recent advances in science and technology have made DNA a more useful tool for convicting the guilty and exonerating the innocent, but delays in processing DNA evidence are keeping criminals on the streets. Kermit Channel, director of the Arkansas state crime lab, says, “Because the technology offers so much more today than even five or six years ago, law enforcement is asking for more and more from us.”
Federal funding has helped labs keep current on analysis of evidence from violent felonies, but Channel says testing of property crime evidence lags. In addition to analyzing DNA evidence recovered from crime scenes, crime labs are tasked with maintaining databases that hold DNA profiles of certain convicted offenders. State and local DNA databases and the national DNA database, connected through the FBI-run system CODIS, have become important tools for solving crimes in cases for which there are no suspects. As of January 2012, CODIS had led to 171,800 “hits” or matches and assisted in more than 165,100 investigations, according to the FBI.
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A divided federal appeals court panel upheld the constitutionality of California's DNA "test on arrest" policy, which Politico.com says is building a massive database compiled from the DNA of people arrested for felonies, regardless of whether they are ultimately convicted of anything. The "test on arrest" policy has been endorsed by President Obama, who encourages states and federal agencies to link up their databases to solve crimes.
The U.S. Court of Appeals for the 9th Circuit's 2-1 ruling said collecting a DNA samples, which are obtained from swabbing the inside of an arrestee's mouth, does not violate the Fourth Amendment's protection against unreasonable searches and seizures. "The physical extraction of DNA using a buccal swab collection technique is little more than a minor inconvenience to felony arrestees, who have diminished expectations of privacy," said Judge Milan Smith. Judge William Fletcher dissented, saying that the database invades the privacy of people not yet convicted, and who may never be. Fletcher says that while DNA profiling and the practice of fingerprinting are similar, neither should be done solely for investigative purposes without a warrant.
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A recently surfaced case in Virginia raises news questions about whether local authorities there are aggressively pursuing potential exonerations after receiving new DNA evidence in old felony cases, reports the Richmond Times-Dispatch. The Virginia Department of Forensic Science has issued reports that exclude at least 76 felons as the source of biological evidence in their cases. The reports have been tightly guarded in the ongoing, $5 million-plus groundbreaking project, which began in 2005.
The status of most of the 76 cases is unknown, and as of last month, 29 of the felons had not been notified that the new DNA reports existed. Among them is Bennett S. Barbour, who learned two weeks ago that authorities in Richmond and Williamsburg have had for 18 months a report excluding his DNA and identifying the DNA of a known offender. Barbour's legal team and Williamsburg authorities believe the DNA report exonerates him in a 1978 rape. But officials said they could not find him to deliver the news, though he lives just 5 miles from where he was arrested 34 years ago. The Urban Institute said it has tentatively found 37 potential wrongful convictions among the cases included in the forensic science reports.
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Tough-on-crime New York State legislators, seeking to expand the collection of DNA from convicts, point to cases like that of Raymon McGill, who was linked to a rape and two murders after being arrested in an attempted robbery, says the New York Times. Civil libertarians want to expand the use of DNA for the potential exoneration of people serving time. The Senate passed a bill yesterday that would require all convicted criminals to submit a DNA sample. Current law requires only those convicted of felonies and some misdemeanors to do so. Supporters of the measure said it could have prevented McGill from committing murder, because if he had been required to give his DNA after committing a petty crime years ago, he would have been identified in the rape inquiry, which preceded the murders.
Barry Scheck, a founder of the Innocence Project, said that if supporters of DNA expansion were serious about preventing wrongful convictions, they should promote measures like requiring videotaping of interrogations or changing the way lineups are done. “Less than 10 percent of serious felony cases have any biological evidence in them, which can identify the real perpetrator with a DNA test,” he said. “And most of the serious offenders are already in the DNA database. This isn’t the No. 1 priority.”
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A number of sheriffs and district attorneys have joined New York Gov. Andrew Cuomo in supporting a legislative proposal to expand the state's DNA databank, reports the Albany Times-Union. ing the state DNA databank. If the Legislature passes the measure, New York would be the first state to take DNA samples from everyone convicted of a misdemeanor or felony.
But Robert Perry of the New York Civil Liberties Union said the potential for error and fraud is great, given the problems that already exist with the databank. "There have been a number of developments that should give policy makers pause, including familial searching based on a partial matches; unauthorized use of DNA by local labs and rogue databanks that maintain samples from people who have not been charged with a crime," Perry said.
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Only 30 percent of the DNA samples that Portland police submit to the state crime lab are tested within 30 days, a national benchmark for timely analysis, according to a city audit reported by The Oregonian. The average processing time in 2010 and 2011 for Portland DNA evidence submitted to the lab was 56 days. The audit found there are hundreds, perhaps a thousand, DNA samples that are stored at the bureau's property evidence warehouse that haven't been submitted to the lab.
Crime labs nationally are struggling with DNA testing backlogs, partly because federal and state laws require authorities to collect more DNA samples yet the lab capacity hasn't been able to meet the demand. Oregon, for example, requires DNA samples from all convicted felons. Randall Wampler of the Oregon State Police Forensic Services Division said the city audit failed to take into account how the state lab prioritizes murder and sexual assault cases compared to lower-level property crime cases. "For public understanding, we are getting to those highly sensitive cases much quicker than what this report shows," Wampler said. "Certainly when we get a homicide or a sex assault, it goes up to the top of our priority list and into the DNA queue for processing, whereas a burglary or break-in to a car could sit for two years before we ever get to it."
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A first peek into Virginia's post-conviction DNA project data shows a potential wrongful conviction rate of 6 percent in the decade and a half before DNA testing was widely available, reports the Richmond Times-Dispatch. The preliminary figure from the Urban Institute, which is studying the results, roughly matches the exoneration rate found in 2005, when testing in a small sample of cases cleared two men of rapes and prompted Virginia's groundbreaking project.
The 6-year-old effort aimed at clearing innocent people was made possible by a trove of biological evidence samples discovered in Virginia Department of Forensic Science files dating from 1973 through 1988. John Roman of the Urban Institute's Justice Policy Center said researchers reviewing 638 Virginia cases have identified 37 "that might support exoneration and that certainly support further investigation." Roman hopes the study will indicate how many people were wrongfully convicted of serious crimes from 1973 through 1988. "I don't know how far we can go down that road," he said, "but this is probably the best attempt to get at that number that anybody's ever had. The Justice Department made a really substantial investment in this."
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People convicted of felonies and 36 misdemeanors are required to provide DNA in New York state. Gov. Andrew Cuomo wants to include all misdemeanor convictions, an additional 200 crimes, reports Gannett News Service. Law-enforcement organizations are supporting the measure as a means of obtaining more leads, nabbing more criminals and preventing future crimes, as well as uncovering wrongful convictions.
Supporters argue that it is common for people to escalate from committing misdemeanors to felonies. Civil libertarians believe the change would infringe on people's rights and they don't think there is enough oversight and quality control in the system. The New York Civil Liberties Union is concerned the state doesn't have the "existing rigor and capacity in our regulatory oversight to ensure these samples are collected, processed, analyzed in a way that prevents error, fraud and abuse from entering into the process."
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Since Dallas District Attorney Craig Watkins took office in 2007, incidents of wrongfully convicted men being released from Texas prisons have become almost commonplace, thanks to his office's Conviction Integrity Unit, established in 2007 to review potential wrongful convictions, says the Dallas Observer. Out of 17 exonerations in Dallas since 2007, there were only four cases without biological evidence.
Watkins faced a backlog of about 500 cases involving DNA evidence that had previously been denied testing and that would, in many cases, prove guilt or innocence. In the first couple years of the Conviction Integrity Unit's existence, DNA-based exonerations rolled out every few months. Most were old sexual assault cases in which semen from a rape kit was still available for modern-day tests. With many staff changes, public defender Michelle Moore worries that the unit's gears are sticking and cases that could be moving forward more quickly are stalled. "I think I see the tendency now to be overly cautious and it's to the detriment of the innocent man," she says. The sheer number of DNA exonerations — and the efforts to uncover how the courts failed so miserably — have revealed troubling gaps in the criminal justice system: Eyewitnesses are more fallible than jurors might think; forensic evidence isn't always reliable or interpreted correctly; the way police run lineups can lead to wrongful convictions. The trouble is, those problems may just as easily plague cases in which no DNA exists.
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The exoneration of Michael Morton in Texas for killing his wife was the 45th in Texas based on DNA evidence, says the Texas Tribune, reporting in the New York Times. Before he dismissed the wrongful murder charges against Morton last week, Judge Sid Harle recounted the faults the case exposed in the Texas justice system, such as use of so-called junk science in the courtroom. “The courts and the sitting judges need to be ever mindful about their role as gatekeeper in regard to the admission of science,” Harle said. “Your case illustrates the best and the worst of what can happen.”
Despite scientific advances like DNA testing, the use of unreliable scientific techniques in the criminal justice system persists. While some judges say they work to ensure only reliable scientific evidence is presented to juries, criminal justice advocates say that more must be done to root out an array of pseudoscientific practices that can have life-or-death consequences. “What passes for science in courtrooms is not always, in fact, science,” said Kathryn Kase of the Texas Defender Service. In recent weeks, the Texas Court of Criminal Appeals has agreed to review cases that indicate it may also see a need to address the types of evidence that meet scientific standards.
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