The DNA Debacle: How the Federal Government Botched the DNA Backlog Crisis

DNA samples are being taken from many more folks than there was in the past, these samples are included in the numbers of those awaiting analysis.


5-24-2009 National:

Kellie Greene spent three years living in fear, waiting for police to catch the stranger who raped her.

Her fear slowly turned to bewilderment over the bureaucratic tangle that continues to put women like her at risk of violence.

First there was the three-year wait for a crime lab to test the DNA evidence that her attacker left on her leggings. Then, when the test results finally came back, she was horrified to learn that the man had committed an earlier rape. His DNA from that case was backlogged for two years, leaving him free to break into her Orlando, Fla., apartment, where he beat and raped her for almost an hour in 1994.

"Had they been able to test the DNA in that earlier case, my rape would have never happened," she said.

After her attack, Greene joined other rape victims in a crusade to expose the backlog of untested DNA evidence sitting in freezers and on shelves in police departments and crime labs nationwide. She spoke out about her ordeal in hopes of sparing other women similar pain.

In 2003, her efforts appeared to pay off. Greene stood with Attorney General John Ashcroft at the White House when he announced that the U.S. Justice Department planned to spend a billion dollars to eliminate the backlog. The aim of the mission: to help labs swiftly identify murderers, rapists and other dangerous criminals so they couldn't strike again.

But at the same time, the Justice Department, along with Congress and state legislatures, adopted a conflicting agenda: to collect more DNA samples from wider swaths of the population.

The result: Today, 15 years after Greene began her campaign, the backlog continues to soar. At least 350,000 samples from murder and rape cases -- many of them involving sexually abused children -- remain untested, according to the federal government's best estimates. In 2005, labs across the country saw their DNA backlogs nearly double.

Part of the uptick comes from new technologies that allow tiny bits of DNA found at crime scenes to be scooped up and tested. But much of the surge can be traced to new federal and state laws requiring law enforcement to collect DNA samples from people convicted of -- or simply arrested for -- nonviolent crimes, including shoplifting. Crime lab directors warn that analyzing these samples allows them less time to test DNA from crime scenes and serious criminals, leaving offenders free to prey on new victims.

The expansion of DNA collection laws has been promoted by a lobbying firm with close ties to both the Justice Department and to companies that profit directly from increased DNA testing, a ProPublica investigation has found.

The firm, Gordon Thomas Honeywell Governmental Affairs, lobbies the Justice Department and lawmakers on behalf of the world's leading producer of DNA testing equipment. Despite that relationship, the Justice Department awarded Gordon Thomas Honeywell a no-bid grant in 2002 to do a key study (PDF) on backlogs that has helped shape the government's DNA policies -- policies that have benefitted the firm's private clients.

The firm later worked on four additional DNA-related projects for the federal government. All of them were commissioned by the National Institute of Justice, or NIJ, the research arm of the Justice Department that recently came under fire for its lax oversight (PDF) of the nation's crime labs.

Because most of NIJ's awards to Gordon Thomas Honeywell were not publicly bid, universities with forensic science departments couldn't compete for the jobs.

None of Gordon Thomas Honeywell's employees are forensic scientists, but the firm's credentials were well known to NIJ. A Gordon Thomas Honeywell vice-president, Christopher Asplen, spent four years at the Justice Department as an assistant U.S. attorney specializing in DNA. And on three of its government assignments, the firm has partnered with a Florida nonprofit that is led by a former NIJ employee.

Justice Department spokeswoman Susan Oliver said the government has hired Gordon Thomas Honeywell "to take advantage of their expertise in DNA policy" -- and not because of the firm's ties to NIJ.

But Sen. Richard Shelby (R-Ala.) is skeptical. At his direction, the Justice Department's inspector general is investigating whether NIJ awards its grants fairly and openly.

"At the very least, there are questionable conflicts of interest, serious voids of transparency and unethical behavior unbecoming to the Department of Justice," Shelby, the ranking Republican on the Senate's justice appropriations subcommittee, said in a statement to ProPublica.

As Shelby questions NIJ's methods for awarding DNA projects, others are challenging the expansion of DNA testing itself.

Civil libertarians have filed lawsuits arguing that it's a violation of privacy to collect DNA from people who have been arrested but not convicted of any wrongdoing. Even some law enforcement officials argue that it doesn't make sense to ramp up testing when labs can't keep up with their current workload.

Norm Gahn, a prosecutor who specializes in DNA cases for the Milwaukee District Attorney's Office, wants DNA collected from everyone possible because he believes more samples will help solve more crimes. But not until labs have the money they need to handle the influx of samples, he said.

"You don't want to keep collecting and then have a bigger backlog."

The Backlog Boom

The flood of DNA samples has created logjams in police departments and crime labs throughout the country.

The largest known backlog is in Los Angeles County, where more than 12,000 rape kits -- envelopes with blood and semen collected from sexual assault victims -- remain untested. Many kits remain in police department storage, waiting to be sent to labs for testing.

Evidence in about 500 of the cases involving adult victims has been backlogged so long that the 10-year time limit for prosecution has passed, according to a Human Rights Watch report.

"This is a betrayal of victims; it's a betrayal of the public trust," said Gail Abarbanel, who heads the rape treatment program at the Santa Monica-UCLA Medical Center.

About half of the 1,000 kits collected at Abarbanel's center each year are from child victims ranging from 4 months to 17 years old. She said prosecutors must sometimes postpone trials while waiting for kits to be tested.

Some offenders use the delays to seek out more victims. Sixteen percent of state crime labs say their backlogs may have allowed additional crimes to be committed, a recent Justice Department report found (PDF).

Long delays also mean that people who've been wrongfully convicted of rape or murder must sit in prison, waiting for DNA tests to prove their innocence. Since 1989, DNA tests have helped free more than 200 wrongfully convicted people in the United States.

"The real problem here goes beyond not testing the evidence," said Greg O'Reilly, chief of the Forensic Science Division at the Cook County Public Defender's Office. "We must focus on the big picture as well -- the oversight, integrity and improvement of the criminal justice system."

The 2004 Justice for All Act was supposed to improve the justice system by eliminating the DNA backlog.

The research from Gordon Thomas Honeywell's (PDF) 2002 government grant (PDF) helped inspire the law. What the firm found was shocking: Although evidence is considered backlogged after 30 days, local labs took an average of 30 weeks to test rape kits. If rushed, a kit can be tested in a matter of days.

Despite the backlog, the study was sprinkled with references to the benefits of collecting even more DNA from nonviolent criminals, noting that the costs of such an expansion still needed to be determined.

The Justice for All Act captured the mixed message.

It allocated a half billion dollars -- about half of what the Bush administration requested -- to help labs speed the process. That section, named after Debbie Smith, a rape victim from Virginia, drew broad support from lawmakers and the public, because Smith had to wait six years for her attacker's DNA to be tested. She campaigned hard for the law, expecting it to eventually eliminate the backlog.

But another section of the law required that DNA be taken from all federal convicts, regardless of the severity of their crimes. Their genetic profiles would then be entered into the national database, called CODIS, so states and the federal government could electronically match DNA from crime scenes to DNA from criminals.

Until then, only convicted violent offenders had their DNA profiles in the database.

In 2005, Congress expanded DNA collection yet again, through a provision buried in the Violence Against Women Act. It required DNA samples from anyone arrested for a federal crime, even if they weren't ultimately convicted.

The law also ordered the FBI, the Border Patrol and other federal agencies to take samples from people they detain. The DNA is collected from blood samples or by swabbing the inside of a person's cheek.

Most samples from detainees likely will come from immigrants suspected of being in the United States unlawfully. But federal agents also can swab travelers temporarily detained at airports and hikers stopped in national parks.

This additional collecting, which began in March, is expected to throw 1.2 million new samples into the FBI's lab each year, the Justice Department estimates, compared with the current 75,000 a year. The lab, located in Quantico, Va., already has a backlog of 290,000 samples from convicted criminals and nearly 2,000 from crime scenes.

Even with the backlog, CODIS continues to grow. The database currently contains more than 6.8 million DNA profiles from "offenders" and 250,000 from crime scenes across the country. So far, there have been 87,000 "hits," which occur when DNA from an unsolved crime matches the DNA profile of someone in the database. It's impossible to know how many hits have led to convictions, because the FBI doesn't track those numbers.

Oliver, the Justice Department spokeswoman, denied that Gordon Thomas Honeywell's research drove the government's new DNA policies. "It's data collection; it's not the formulation of policy," she said. "That's not a contractor's responsibility."

Yet in announcing the grant for Gordon Thomas Honeywell in 2002, NIJ's director at the time described the study as "an important tool in crafting appropriate Department of Justice programs and policies." Gordon Thomas Honeywell itself once bragged on its Web site that the research was "used as the underpinnings" of the Justice for All Act.

That line recently disappeared from the site.

Explaining the State Testing Boom

As federal DNA laws ramped up, states expanded their collection as well.

Fifteen states now collect DNA upon arrest, compared with only two in 2002. More than 30 require samples from some juveniles and in 34 states, some people convicted of misdemeanors, including shoplifting, must submit to testing. Gordon Thomas Honeywell has lobbied lawmakers on behalf of its DNA clients in at least five of those states, including Washington, where the firm is based.

Crime labs, meanwhile, have struggled to keep pace with the laws. In California, the backlog at the state crime lab jumped from 35,000 in January to almost 46,000 in February, after law enforcement agencies began collecting DNA upon arrest.

The Vermont state crime lab worked four years to clear a backlog of hundreds of samples from convicted felons. Now it's chipping away at DNA gathered from 100 crime scenes while bracing for a flood of new samples heading its way in 2011. That's when Vermont will begin collecting DNA from anyone arraigned on felony charges.

The state legislature also has considered taking DNA from people arrested for a crime.

"If Vermont started collecting from arrestees, we'd need three of me," said Rebekah Herrick, the scientist who manages the lab's DNA database. Part of the problem, she said, would be finding time to track the legal status of each case, so DNA profiles from those ultimately acquitted could be purged from the database.

DNA laws are not the only obstacles to clearing backlogs. New technologies have made it possible to analyze small or degraded samples, causing police and prosecutors to submit more evidence to labs. But government studies have consistently found that labs lack the staff, equipment and funding to handle this work. Outsourcing evidence to private labs is costly too -- it can run up to $50 for a person's DNA sample to be tested and $1,500 for a rape kit.

Labs also have space problems.

Eric Buel, director of the Vermont lab, works on the third floor of a faded brick building that dates to before World War II. Construction of a new $13 million lab has been postponed because of Vermont's budget woes, so Buel makes do with what he has: three DNA analysts working in an 8 by 12 room crowded with worktables and equipment -- a sharp contrast to the sophisticated crime labs on popular TV shows.

"You will walk through our lab and see it's not CSI," Buel said. He motioned to blueprints for the new lab that he keeps near his desk. "Maybe one day."

The Debbie Smith program was supposed to help labs upgrade their equipment and hire more staff. But lab directors are often slow to use the money, because it comes with rules that make it difficult to attract qualified employees. Salaries, for instance, are guaranteed for only a short period, usually 12 months. Seventeen states had their funding cut last year, because they failed to use grants dating as far back as 2004.

New York is among the few cities to dig out from a deep backlog, though it took time and great expense. Beginning in 1999, the police department spent four years and $12 million overhauling its DNA lab. It outsourced 16,000 backlogged rape kits to private labs, hired more DNA analysts and devised a bar-code system so lab technicians, police and prosecutors could track the progress of each case.

Without a backlog, New York City's arrest rate for reported rape cases rose from 30 percent in 1999 to 70 percent in 2007, according to Human Rights Watch.

Getting the Job Done

Gordon Thomas Honeywell was uniquely positioned to lead the push for more DNA collection.

The firm was already lobbying for private DNA companies in 2002 when it hired Asplen, who had directed the Justice Department's commission on the future of DNA evidence. The next year, the firm got the first of its five NIJ-funded projects, including three DNA policy studies and an assignment to create content for www.dna.gov, the government's official DNA Web site. The firm's government work has earned it almost $700,000, according to NIJ e-mail and memos obtained by ProPublica.

On some of the projects, Gordon Thomas Honeywell partnered with a nonprofit forensic science organization in Florida that also has close ties to NIJ. The organization, the National Forensic Science Technology Center, provides research, development and training to scientists, crime labs and law enforcement agencies.

The Florida center receives about 80 percent of its revenue from NIJ, and six of the company's current and former employees and board members have worked for NIJ. The center is led by Kevin Lothridge, who once ran NIJ's forensic science division. His old NIJ job is now held by Michael Sheppo, former president of the center's board of directors.

NIJ twice instructed Lothridge to use Gordon Thomas Honeywell as a subcontractor on DNA-related projects, he said. The latest collaboration began in 2007, when Gordon Thomas Honeywell and the center were hired to gather fresh data about the size of the DNA backlog. An NIJ memo said the study, which is supposed to be completed in June, will help NIJ design DNA programs.

While building its Justice Department connections, Gordon Thomas Honeywell also established strong political ties.

The firm and its lobbyists have contributed more than $100,000 to state and federal political candidates, including Sen. Patty Murray (D-Wash.), who co-sponsored a 2002 DNA backlog reduction bill. More recently, Murray steered about $1 million in DNA-related earmarks to the Washington Association of Sheriffs and Police Chiefs, a Gordon Thomas Honeywell client.

The head of Gordon Thomas Honeywell's Washington, D.C., office, Dale Learn, was a senior legislative aide to Murray for six years. (Learn has not had any involvement with the firm's DNA clients, Asplen said.) Murray also briefly employed Nate Potter, another of the firm's lobbyists.

To broaden support for expanded DNA testing, the firm has waged an aggressive public relations campaign. It operates a Web site, dnaresource.com, which once extolled the "benefits of expanding criminal DNA databases." It currently offers lawmakers a "drafter's checklist for arrestee DNA legislation."

The firm's lobbyists also have been cited in at least 20 publications, including the Washington Post and USA Today. In more than half of those articles, they defended expanded DNA testing and were portrayed as experts, not lobbyists.

In an interview, Asplen defended his company's campaign for testing. Some studies (PDF), he said, show (PDF) that a bigger DNA database helps solve more crimes.

Asplen has even advocated for a national registry of every American's DNA.

"It's an absurd proposal not to do it simply because you're going to create a backlog -- that drives me out of my mind."

Profiting From Testing

Expanded testing has boosted the bottom line of Gordon Thomas Honeywell's DNA clients.

Applied Biosystems, an international scientific research company and the world's largest producer of DNA testing equipment and supplies, has been a client for more than eight years -- a period of time that saw its net revenue rise from about $1.3 billion to $2.3 billion.

Lobbyist disclosure forms show that, on behalf of Applied Biosystems last year, Gordon Thomas Honeywell lobbied Congress and the Justice Department to reauthorize the Debbie Smith program, which gives crime labs money to buy the company's equipment.

"There is double-digit annual growth projected for [DNA] business, and that's driven by a lot of legislation," Robert Barrett, once one of the company's marketing directors, said at a 2005 shareholders' meeting. He added that the company is working "within the U.S. to further speedup the adoption of DNA legislation" and that DNA databases are "good business."

Ross Muken, who researches Applied Biosystems as an analyst for Deutsche Bank Securities, said legislation "is going to be a major driver" of the company's business.

"DNA backlogs remain pretty significant," Muken said. "That's the opportunity for them."

The same goes for Orchid Cellmark, one of the nation's largest private DNA testing labs and a Gordon Thomas Honeywell client from 2002 until 2007. Cash-strapped crime labs often use NIJ grant money to outsource their backlogged samples to private labs like Cellmark, a $60 million company.

In a 2005 conference call with investors, a few months before the Violence Against Women Act was passed, Cellmark executives discussed future growth in their business, pointing to the section of the legislation that required additional testing.

"We work with a lobby group that helps us, sort of lobbying for legislative change," Paul Kelly, the company's CEO, told investors at the time. "We feel pretty positively that [the Violence Against Women Act] will come to pass."

In an interview, Asplen said the financial interests of Gordon Thomas Honeywell's clients never clouded the firm's NIJ-funded research. "All recommendations we made are based on numerical data," he said. "That's how we make sure we don't cross boundaries."

He said the firm also hired Washington State University's governmental studies department to help with the 2002 study and to "be a check" on any undue influence.

"I understand the value in asking the question of whether it's appropriate" for a lobbying firm to do government research, Asplen said. "But because we're the best experts in the field, the concern goes away."

Besides, Asplen said, it was NIJ's idea to hire Gordon Thomas Honeywell, noting that "[NIJ] certainly knew who our clients were and clearly it was OK with them."

Steven Schooner, who co-directs the government procurement law program at George Washington University Law School, said NIJ should disclose when it hires a firm with a potential conflict of interest -- or not hire the firm at all. But the 2002 study, which is posted on a Justice Department Web site, fails to mention that it was authored by lobbyists with ties to the DNA industry.

"When anything is held out as objective, particularly by the Department of Justice, it's disingenuous to do so if indeed the grantee has a conflict," Schooner said.

DNA Testing Meets the Right to Privacy

While Gordon Thomas Honeywell's clients reap the benefits of expanded DNA testing, others are watching with mounting concern.

David Leopold, a Cleveland attorney and national vice president of the American Immigration Lawyers Association, wants the government to stop collecting DNA from detained immigrants. He points out that being in the United States unlawfully is a civil offense, not a crime -- and that some people rounded up during immigration raids turn out to be U.S. citizens.

"These are mostly hard-working folks, not criminals," he said, adding that collecting their DNA "serves no legitimate law enforcement purpose."

The American Civil Liberties Union believes the same reasoning applies to anyone who hasn't been convicted of a crime. Tania Simoncelli, science adviser to the ACLU, said taking DNA from people who have been arrested but not convicted violates the Fourth Amendment to the U.S. Constitution, which prohibits police from searching people without good cause to believe they broke the law.

"Innocent people are arrested and freed all the time," Simoncelli said. "We've been on a really slippery slope."

The next step, she warned, could be a universal database containing every American's DNA profile, as Asplen has promoted. Such a database, Simoncelli said, would make law-abiding Americans "an automatic suspect in every crime."

Since crime labs typically don't destroy DNA samples after testing, she said, it's also possible that the samples could be tapped for sensitive genetic information, such as disease predispositions that could determine employment and health-insurance eligibility. The DNA profiles uploaded to CODIS don't contain this genetic data.

Courts have ruled that it is reasonable to assemble a database of convicted offenders' DNA because criminals have a diminished right to privacy. But a recent congressional study predicted that argument won't hold up when it comes to taking samples from people simply arrested or charged with a crime.

"It is possible that future DNA collection cases might raise graver Fourth Amendment privacy concerns than previous cases," the study said.

So far, courts have been inconsistent.

In 2006, a Minnesota appellate court struck down (PDF) a state law requiring samples from those charged but not convicted. The court ruled that the law undermined a fundamental tenet of the justice system: to be presumed innocent until proven guilty.

In 2007, the Supreme Court of Virginia reached the opposite conclusion (PDF), ruling that taking a DNA sample on arrest is no different than taking a fingerprint.

Sen. Patrick Leahy, a Vermont Democrat who is chairman of the judiciary committee, believes federal DNA testing laws have gone too far. Although he strongly supports the Violence Against Women Act, he said he always had reservations about its mandate that DNA be collected from anyone arrested or detained by federal authorities.

"This change adds little or no value for law enforcement, while intruding on the privacy rights of people who are, in our system, presumed innocent," Leahy said last year when he tried, unsuccessfully, to discourage the Justice Department from implementing the policy.

Kellie Greene, the Florida rape victim, agrees with Leahy. She blames the rush to test on "legislators acting like they're tough on crime."

Privacy concerns are also rising in Britain, where DNA laws are among the most expansive in the world. For years, Britain has stored DNA from all arrestees, including those later proven innocent. But the European Court of Human Rights ruled unanimously last year that the policy violated international law and ordered that about 850,000 samples be purged from the system.

A more fundamental question is also being raised in Britain: Is a big DNA database really the crime-fighting tool it is said to be? Over the past six years, the number of DNA matches in British crimes has declined slightly, even as the number of people in the database has doubled, according to government figures compiled by GeneWatch UK, a nonprofit bioethics group.

Asplen, who once led Gordon Thomas Honeywell's London office, maintained that in the U.S., "I don't think we're going too far, constitutionally. When you've got the guy under arrest, don't you want to know if he's got something else out there?”

Calls for Change

For now, the civil liberties debate is overshadowed by the immediate challenge of eliminating the DNA backlog. The Bush administration promised that the backlog would be gone in five years, a period that will expire this year.

Blame for the lack of progress is increasingly being placed on NIJ, which has suffered from high turnover in its leadership. (The agency has had six directors since the government's backlog fight began in 2000.) Now some are calling for the fight to be taken entirely out of NIJ's hands.

In one version of the 2009 Justice appropriations bill, Sen. Shelby rebuked NIJ for steering DNA backlog research to Gordon Thomas Honeywell instead of allowing independent experts to compete for the work.

"The Committee strongly believes that there are numerous qualified and objective entities that are competent to conduct studies on matters related to law enforcement," Shelby wrote, adding that no-bid "contracts to former employees and lobbyists who have clients that could receive financial gain depending on the outcome of the findings is not in the best interest."

In 2006, Shelby asked the National Academy of Sciences to study the problems facing the nation's crime labs -- and to find ways to help solve them. The resulting report, released in February, urged Congress to create a new federal agency to police crime labs and eliminate backlogs, saying NIJ wasn't up to the job.

As Congress considers its next step, crime labs are preparing for another wave of new samples. Nineteen more states, including Florida, are considering legislation to collect DNA from some people who are arrested.

Greene, who now runs the advocacy group Speaking Out About Rape, is monitoring these developments with increasing frustration. After more than a decade of fighting, she finds herself repeating, yet again, what she said after her attack. "People's lives are at stake. If there weren't a backlog, we'd be getting these criminals off the streets." ..News Source.. by Ben Protess, ProPublica