State's DNA letter to felons may yield future setbacks in court

1-19-2010 Wisconsin:

A letter being sent by the Wisconsin Department of Corrections that orders released felons to submit DNA samples or face prosecution may exceed the state's authority and undermine future cases, legal experts, defense attorneys and even one prosecutor say.

The concerns are important because the use of DNA evidence obtained under questionable grounds could later be challenged in court if it is used to prosecute a future crime.

The notices have been mailed out by the Corrections Department since December to about 700 of the more than 11,000 offenders whose profiles are missing from the state DNA databank and who already have completed their sentences.

"If someone provides DNA because of the notice and then gets charged with a crime based on the DNA, he or she will file a motion to suppress on those grounds," retired Wisconsin Supreme Court Justice Janine Geske said. "I just think with so much uncertainty about what is allowed and not allowed, there is risk for (the department) in getting the DNA through this letter."

The gap in the state's DNA databank was discovered last fall during an investigation into accused Milwaukee serial killer Walter E. Ellis, whose DNA should have been taken when he was in custody in 2001 at Oshkosh Correctional Institution. Another inmate posing as Ellis gave a DNA sample for him.

Ellis is scheduled to go to trial in May for the deaths of seven women over a 21-year span. His case is an example of authorities' worst fears - the felons who have the greatest incentive to avoid having their DNA taken will be the least likely to comply unless forced to by law.

The notice the Corrections Department is sending instructs offenders to submit a DNA sample within 10 days or face a misdemeanor punishable by up to nine months in jail and a $10,000 fine.

"A person who is required to provide a DNA sample and intentionally fails to do so is subject to criminal penalties," the letter says. "If you fail to provide a DNA sample, your name may be forwarded to the District Attorney's office for potential criminal charges."

However, the state Department of Justice continues to review Wisconsin's DNA submission law, which doesn't expressly say that offenders are still obligated to submit DNA if they are no longer in prison, on probation or on parole.

The attorney general's office has not issued an official opinion on how to interpret the law regarding offenders who did not provide a DNA sample while serving their sentences, officials said.

Chuck Cole, head of the Corrections Department's DNA task force, said the department's legal counsel determined that offenders still have an obligation to provide a DNA sample.

"We felt it was very important for these offenders to come forward and submit samples," said Cole, former Madison assistant police chief.

The letter was drafted by the Corrections Department's lawyers and reviewed by the state Justice Department, which declined to co-sign the letter, he said.

The Justice Department reviewed the letter as a "concept" to consider whether an agency official should provide a co-signature, said Kevin St. John, special assistant to Attorney General J.B. Van Hollen.

"It was concluded a DOJ Administrator had no appropriate role in signing a letter related to the collection of samples," St. John said in an e-mail to the Journal Sentinel. "Justice's role in operating the databank is to receive collected samples, analyze them, and maintain the databank. Others, namely Corrections in this case, collects."

Geske, a law professor at Marquette University, said she thinks mailing the notice was premature.

"The problem I have with (the letter) is that it sounds as if the statutes clearly require offenders to submit DNA, but there is certainly nothing in the statutes that people off supervision are required to submit DNA," Geske said. "To say you are required and failure to do so would result in penalties is clearly an overstatement of the law."

Sheboygan County District Attorney Joe DeCecco said he's not convinced that the state's DNA submission law carries a criminal penalty for a felon who was required to provide a DNA sample while under supervision, but did not.

"If the state erred in that collection (outside of a deliberate deception or outright refusal by the defendant), I'm not sure that the criminal act applies to someone who was available to give the sample but, for whatever reason, was never asked to give it," DeCecco said in an e-mail.

Milwaukee County District Attorney John Chisholm declined to comment directly on the DNA notice, but did say no names of offenders have been forwarded to his office for potential prosecution.

Almost 12,000
A Justice Department review last fall initially found that roughly 12,000 DNA profiles were missing from the state's databank.

Last month, the state Department of Corrections released more definitive figures that showed 11,082 offenders whose DNA samples are missing are no longer under state supervision - almost 87% of the current total of 12,759 missing samples. And that total does not include offenders who were sentenced to county jails and not under supervision of the department.

Brookfield defense attorney Julius Kim said the Corrections Department letter is misleading because it implies that a person's failure to comply with an obligation to provide DNA is punishable when it's unclear if that's true.

"They are using language here to coax people to submit DNA samples," Kim said. "There is certainly public interest in getting the DNA samples, but I'm not sure about the legalities in doing it this way."

A convicted sex offender who lives out of state and asked not to be named contacted the Journal Sentinel about the letter he received in December from the Corrections Department. He researched state law and then responded to the letter:

"If you would be so gracious as to indicate to me what Wisconsin statute, Wisconsin case law or Wisconsin Attorney General's opinion requires (someone) who is not on any form of supervision  . . .  to submit a DNA sample to the Wisconsin crime lab within ten days, I will immediately take the appropriate action."

The offender has not received a reply to his letter.

'No harm in asking'
Some in the legal community said they don't necessarily find legal problems with the state's notice.

Marquette University Law professor Dan Blinka said the letter falls under the heading "no harm in asking."

"Are there any false statements of law? I don't see any," Blinka said. "Still, this is an overly rosy assessment of the state's position. It's misleading only by omission. There is nothing in here about the mistakes the state made by not collecting, and nevertheless 'we think we can go ahead anyway despite our tenuous legal authority.' "

Moving forward, DeCecco said he sees other legal issues arising as the state works to compel offenders to submit DNA.

For example: The penalty for violating the state's DNA submission law is a misdemeanor, which has a statute of limitations of three years. That means if more than three years have passed since the violation - not when authorities first learned about the violation - it cannot be prosecuted.

"For someone who is at least three years out of supervision who was required to give a DNA sample but, through no fault of their own, wasn't collected, the statute cannot be applied," said DeCecco, the Sheboygan County district attorney.

And the larger question remains if the notice could undermine future cases, said Mike Tobin, director of the trial division of the Wisconsin public defender's office.

There is legal precedent that could be argued in court related to the Fourth Amendment, which prohibits unreasonable searches and seizures, he said.

"Let's say there was cold-case hit - I think a defense attorney could raise the argument that the specimen was part of an improper search," Tobin said. "I don't think that would be a frivolous argument to raise." ..Source.. Ben Poston of the Journal Sentinel