1-13-2012 New York:
NEW YORK (CBSNewYork) — The state of New York is considering a dramatic expansion of its DNA collection. New Yorkers who find themselves under arrest for anything may soon have to give up a sample.
“I propose it be expanded to 100-percent of all crimes. Let’s provide justice for all and let’s be the first state in the union to do that,” Gov. Andrew Cuomo said recently.
Mayor Michael Bloomberg jumped on board on Thursday, but critics are already sounding the alarm.
“My worst fear is that innocent people will go to jail because of mistakes made in an overburdened system,” said Jeremy Gruber of the Council for Responsible Genetics.
Donna Lieberman, a spokesperson for the New York Civil Liberties Union, told CBS2′s Lou Young that, “proposals like this make us feel like we’re living in a CSI fantasy.”
But it isn’t a fantasy. Scientists have solved everything from burglaries to serial murder by comparing crime scene DNA to the DNA database.
But the question remains, how large should that database get?
So far the criteria for New York’s database has been increased four times since 1999. It began tracking only violent criminals, but now roughly half of the people arrested in New York get cheek-swabbed and receive a coded number in the computer. The information is compared to existing crime scene evidence and has been used to close hundreds of criminal cases.
Proponents call the database an asset.
“It’s been our experience when the database has been increased it’s been very useful in identifying serious criminals,” said Bob Adamo, director of the Westchester County Crime Lab.
Fransico Acevedo is set to be sentenced next week for serial killings that he committed 16 years ago. Acevedo was identified using the database.
But some believe that the state may be drunk on its own success.
“No one ever envisioned a DNA database that would include common petty offenses like reckless driving, and that’s what this is going to do,” Gruber said.
For the remainder of this story: by CBS NY
January 13, 2012
Expanded NY DNA Database Would Seek To Exonerate The Innocent - Expose The Guilty
May 20, 2010
House votes to expand national DNA arrest database
The method used to pass this bill -suspension of the rules- is the exact method used to pass the Adam Walsh Act (claimed by Rep. Sensenbrenner to be non controversial).5-20-2010 Washington DC:
Millions of Americans arrested for but not convicted of crimes will likely have their DNA forcibly extracted and added to a national database, according to a bill approved by the U.S. House of Representatives on Tuesday.
By a 357 to 32 vote, the House approved legislation that will pay state governments to require DNA samples, which could mean drawing blood with a needle, from adults "arrested for" certain serious crimes. Not one Democrat voted against the database measure, which would hand out about $75 million to states that agree to make such testing mandatory.
"We should allow law enforcement to use all the technology available to them...to reduce expensive and unjust false convictions, bring closure to victims by solving cold cases, better identify criminals, and keep those who commit violent crime from walking the streets," said Rep. Harry Teague, the New Mexico Democrat who sponsored the bill.
But civil libertarians say DNA samples should be required only from people who have been convicted of crimes, and argue that if there is probable cause to believe that someone is involved in a crime, a judge can sign a warrant allowing a blood sample or cheek swab to be forcibly extracted.
"It's wrong to treat someone as guilty before they're convicted," says Jim Harper, director of information policy studies at the Cato Institute. "It inverts the concept of innocent until proven guilty."
House Speaker Nancy Pelosi and the Democratic leadership scheduled Tuesday's debate on the bill--called the Katie Sepich Enhanced DNA Collection Act of 2010--using a procedure known as the "suspension calendar" intended to be reserved for non-controversial legislation.
"Suspension of the rules is supposed to be for praising the winner of the NCAA championship or renaming Post Offices," Harper says. "Things like collecting Americans' DNA are supposed to be fully debated in Congress."
NOTE: This is exactly how they -tricked folks- and passed the Adam Walsh Act using "suspension of the rules" by Rep. Sensenbrenner of Wisconsin. This procedure must be stopped and those who misuse it prosecuted!
In a surprise move, as the U.S. Congress was expanding the FBI's DNA database, the U.K.'s new coalition government was pledging sharp curbs on its own databases.
Created in the mid-1990s, the UK National DNA Database originally was supposed to store data on convicted criminals, but grew to include records on more than 5 million Britons, including many who were only arrested on suspicion of a crime.
U.K. Deputy Prime Minister Nick Clegg promised once-in-a-century privacy reforms in a speech on Wednesday: "We won't hold your Internet and e-mail records when there is just no reason to do so. CCTV will be properly regulated, as will the DNA database, with restrictions on the storage of innocent people's DNA. Britain must not be a country where our children grow up so used to their liberty being infringed that they accept it without question." ..For the remainder of this article.. CNET News
January 19, 2010
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
August 6, 2009
AR- Roberts: DNA sample given under false name to protect task force
8-6-2009 Arkansas:
Faulkner County Justice of the Peace Jerry Roberts said he provided a DNA sample under a fictitious name for the 1990 abduction, rape and murder of Pamela Faye Felkins. Roberts provided the sample to rule out his brother Ed, who operated a business in the proximity of Felkins’ place of employment, Roberts said Tuesday afternoon.
According to Roberts, who was the chairman of the task force investigating the Felkins murder, Bobby Brown, then an investigator with the Faulkner County Sheriff’s Department, wanted a DNA sample to rule out Ed Roberts’ involvement in the Felkins murder after Jerry Roberts and Bobby Brown “had words.”
Jerry Roberts said Brown was in charge of the evidence room and had the only key. Roberts maintains Brown told him that evidence was not being forwarded to the crime lab because the evidence room was a mess.
“It is obvious by not taking the evidence to the lab, he was withholding evidence,” Roberts said.
When Jerry Roberts continued to ask why the evidence seized during the investigation had not been taken to the state crime lab, “He became argumentative and threatened me,” Jerry Roberts said.
Jerry Roberts said requesting a DNA sample from his brother would have caused problems within the task force because many of the task force members knew his brother. Jerry Roberts said he and Brown then decided on a plan where Jerry Roberts would submit his DNA under a fictitious name. Jerry Roberts said he used a cigarette to collect his DNA and then placed the DNA in an envelope, which he licked. He asked then-Sheriff Marty Montgomery’s approval of the plan and, according to Jerry Roberts, Montgomery “agreed it would be a good idea.”
Montgomery could not be reached for comment by press time.
Jerry Roberts said he left fingerprints on the envelop as well as the saliva so it could be used to identify his DNA if the evidence was tampered with later. He said the sample was requested to “discredit me and my family.”
“This would eliminate his DNA easily. If it was brought up in front of the task force, it would have broken up the task force,” Jerry Roberts said, noting that the DNA could be checked to see if a sibling or parent of the provider matched DNA material found at the crime scene.
“My brother was ill, and I didn’t want to break up the task force,” Jerry Roberts said.
Much later, Ed Roberts submitted a DNA sample and was officially ruled out as a person of interest.
Jerry Roberts’ scenario is one that Brown said didn’t happen.
“He did that all on his own,” Brown said Monday afternoon.
Brown admitted that Ed Roberts’ DNA was sought because he ran a business near Felkins’ workplace.
“The alleged person had to have walked in front of his business, so he had to be eliminated,” Brown said.
Brown said he didn’t learn about Jerry Roberts submitting a DNA sample until “after the fact.”
Brown acknowledged that Roberts has said Brown was “covering up” the murder.
“I never hid anything,” he said, noting that as the chairman of the task force, Jerry Roberts was in charge of getting evidence to the crime lab.
Brown said he never knew Felkins because when the murder occurred, he was working for the Pine Bluff Police Department.
“I had no knowledge of the case until I joined the task force. I was just one of many on the task force,” he said. “When the task force was formed, I was not involved. I was pulled more into it for support.”
Brown said since Jerry Roberts was in charge, he should have known what was submitted to the crime lab. Now, Brown said he has no authority over the evidence in question.
“I have been out of that picture for a while,” he said, noting that he has been in jail administration since 2005.
Sheriff Karl Byrd, who according to Jerry Roberts, has also not submitted evidence to the crime lab, said that Roberts “had plenty of opportunities to submit these things himself.”
Byrd said the task force and many of the things that Jerry Roberts has talked about “occurred before I was involved.”
Byrd has employed a part-time officer to work on the case in addition to investigators and the task force.
“We have not forgotten. We are working on this case every opportunity we get,” Byrd said.
Byrd said there was no need for Jerry Roberts to submit the DNA sample under a fictitious name.
“His brother was available,” Byrd said. “He cooperated fully. There was no reason for Jerry Roberts to do what he did. His brother was never a serious suspect, but because of his proximity he needed to be eliminated.”
Although Jerry Roberts said Byrd has evidence that still needs to be sent to the state crime lab, Byrd said he can’t second guess his investigative team.
“It is important to protect the integrity of the case and the integrity of the family,” Byrd said. “We are working this case actively. The things that need to be done are being done.”
Byrd said he cannot get into the details of the case as it is an open investigation. The release of details is another debate between Byrd and Jerry Roberts.
Byrd said information is used to weed out suspects. Releasing information to the general public “makes it a lot harder to work,” according to Byrd.
“I have investigators on it. They will determine what needs to be done by the sheriff,” Byrd said. ..Source.. by Holly Latimer
June 23, 2009
NV- Appeals court: ‘Forcefully extracted’ DNA violated man’s rights
6-23-2009 Nevada:
CARSON CITY – In a 2-1 decision, a federal appeals court has ruled that the constitutional rights of a person in the Las Vegas jail were violated when a law enforcement officer chained and forcibly took a DNA sample.
The 9th U.S. Circuit Court of Appeals said Metro Police Detective Dolphus Boucher, with the approval of Deputy District Attorney Elissa Luzaich “forcefully extracted” a DNA sample from Kenneth Friedman.
The officer did not have a warrant or a court order to take a swab from inside the mouth of Friedman.
The decision overturns the ruling of U.S. District Judge James Mahan who held Boucher and Luzaich were entitled to qualified immunity and dismissed the civil suit brought by Friedman, who contends his constitutional right to be free from search was violated.
The case returns to the federal district court in Las Vegas for further hearings.
Judge Sidney Thomas, who wrote the majority opinion, wrote, “no reasonable detective or prosecutor could have thought that they could forcibly take a DNA sample from Friedman without violating his Fourth Amendment rights.”
Judge Consuelo Callahan, who wrote the dissent, said, “I would find that an in-custody repeat sex offender like Friedman, does not have a reasonable expectation of privacy under the Fourth Amendment …”
Friedman had been convicted of several rapes in Ohio and Montana before moving to Las Vegas. In August 2002, Las Vegas police detained and questioned Friedman for stalking an individual at a health club and making threatening telephone calls. In February 2003, Friedman was arrested and charged with indecent exposure and open and gross lewd conduct.
Luzaich, the deputy district attorney, authorized the detective to get a DNA sample to see if it would help solve any old cases.
Friedman said he refused and asked for a lawyer. But he says he was shackled and chained to a metal bar while the squab was forced into his mouth.
The court said there is no question the swab constituted a search and it was done without a warrant.
The detective and the prosecutor said they were entitled to conduct the search under conditions in the Montana law. But that law was passed in 1995 and Friedman was convicted in 1980.
The court said the Montana law “does not authorize any law enforcement officials, either within or outside Montana, to extract a DNA sample by force.”
The detective and the prosecutor also maintained Friedman, a pre-trial detainee, had limited privacy rights and must yield to law enforcement officials to collect DNA samples for use in databases. The court said pre-trail detainees retain greater privacy interests than do persons convicted of crimes.
The court said there would “have been ample opportunity” to obtain a warrant but the law enforcement officials had no probable cause on which to base their request for a warrant.
Judge Callahan, in her dissent, said the U.S. Supreme Court has held that those incarcerated have little, if any, expectation of privacy under the Fourth Amendment.
“Here Friedman, a convicted sex offender, was a pre-trial detainee facing charges of indecent exposure and open and gross lewd conduct when the state officials took a buccal swap from inside his mouth.”
She said this “minimally invasive search was reasonable.” The DNA, said Callahan is like fingerprints, used to identify a person. And it is “far less intrusive than drawing blood.”
She said that prior case decisions “Leads to the conclusion that a lawfully incarcerated individual, particularly a repeat sex offender like Friedman, does not have a Fourth Amendment right to prevent state authorities from using a buccal swab to take a DNA sample.” ..Source.. by Cy Ryan
June 19, 2009
Court rejects DNA access claim
Read case carefully, the court DID NOT SAY there is no right no matter what the circumstances of a case are. In essence, this case was not correct to decide the ultimate issue, but for this fellow there was no constitutional right. Further, this is an area of law still evolving in the states and NOT YET ripe for a final U.S. Supreme court decision on the ultimate isssue.
6-19-2009 Scotus Blog:
Splitting 5-4, the Supreme Court ruled Thursday that an individual whose criminal conviction has become final does not have a constitutional right to gain access to evidence so that it can be subjected to DNA testing to try to prove innocence. This was one of four final rulings the Court issued Thursday, leaving ten remaining. The next release of opinions is expected on Monday.
Chief Justice John G. Roberts, Jr., writing for the majority in District Attorney’s Office v. Osborne (08-6), noted that DNA testing provides “an unparalleled ability” to prove innocence or guilt, but its availability “cannot mean that every criminal conviction, or even every criminal conviction involving biological evidence, is suddenly in doubt.” The opinion is available here.
The task of writing rules to control access to DNA evidence “belongs primarily” to the legislature, the Chief Justice wrote. Pursuing a “freestanding and far-reaching constitutional right of access” to DNA evidence through a civil rights lawsuit, Roberts wrote, would “short-circuit” efforts now being made by the federal government and many states to develop tools on access to such evidence. “There is no reason to constitutionalize” access through the courts when elected officials are making “a prompt and considered” response to the DNA phenomenon, the opinion concluded.
While the decision appeared to be focused on whether such a right of access exists after a criminal conviction has become final, when states presumably have more authority to shape their responses to new challenges to earlier convictions, the language used by the Court majority made it appear that the sweep of the decision may turn out to be considerably broader.
Two of the Justices who joined the majority said in a separate opinion that they would have gone further in rejecting the DNA access claim in the case, asserting that such claims should not be pursued in a civil rights lawsuit, but through a habeas plea — but then only after first trying the challenge in state court. (The Chief Justice’s opinion assumed, without deciding, that the case had been properly pursued as a civil rights claim.)
In an opinion written by Justice Samuel A. Alito, Jr., he and Justice Anthony M. Kennedy also said that, if a defense lawyer fails to seek DNA testing during trial, and does so for tactical reasons, there is no constitutional right to seek access following conviction. Justice Clarence Thomas joined them on that second point, but not on the need to pursue the habeas route.
In another major ruling on criminal law, available here, the Court, dividing 6-3, decided that if a jury finds an individual not guilty on some counts, but can’t agree on the others, prosecutors may not try that individual again on the “hung” counts if they had a common element with those on which the jury acquitted. The ruling came in a case growing out of the Enron Corp. scandal — Yeager v. U.S. (08-67). Justice John Paul Stevens wrote for the majority.
..Source.. by Lyle Denniston
May 24, 2009
Murder and Rape DNA Test Backlog Hits 350,000
While they claim just murder & rape I strongly suspect this includes all kinds of crime scene evidence from all kinds of crimes. Further, these numbers seem to support a need for legislation (HR-2462 `Convicted Child Sex Offender DNA Index System Support Act') I would still be against HR-2462 because of the Golden Egg methods it wants to follow.
Further, 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:
The United States is fast reaching a crisis point as federal, state and local law enforcement falls further and further behind in processing a backlog of now 350,000 DNA samples for cases involving murder or rape, according to an investigation by ProPublica. From Springfield, IL, to Los Angeles, CA, victims groups are furious over the failure of government officials to adequately resolve the problem of rape kits and other DNA collections that are piling up instead of being used to put away violent offenders.
The matter has now touched Washington, DC, where a top Illinois forensic scientist was hired to help the U.S. government deal with its own DNA backlog—only to find out that the man in question, Michael Sheppo, didn’t do such a bang up job after all while heading up the Illinois State Police crime lab. Instead of overseeing what was reportedly the elimination of a 1,000-case backlog of samples, Sheppo managed an operation that doctored lab reports to show a phony reduction in DNA processing. It also was found by ProPublica that the lab retaliated against two whistleblowers who criticized a no-bid contract with a Florida nonprofit that Sheppo was involved with.
The news out of Illinois follows on the controversial situation in Los Angeles, where the city controller complained back in October that city officials had failed to process a backlog of 7,000 rape kits—even though the U.S. Justice Department had given LA nearly $4 million to do just that. More than 200 of the kits had sat around for so long that they no longer could be used for the crimes they were related to because the statute of limitations had run out. ..News Source.. by AllGov.com
December 7, 2008
UK- European Court Rules Against Britain’s Policy of Keeping DNA Database of Suspects
12-7-2008 United Kingdom:
LONDON — The European Court of Human Rights ruled unanimously on Thursday that Britain’s policy of gathering and storing the fingerprints and DNA of all criminal suspects — even those who turn out to be innocent — was a violation of the human right to privacy.
The ruling, handed down in Strasbourg, France, is a severe blow to the law-enforcement policies of the Labor government, which has led Europe in aggressively collecting and retaining personal information on its citizens. Using unusually strong language, the court declared itself “struck by the blanket and indiscriminate nature” of the police’s policy of holding DNA material indefinitely in its database.
Britain has several months to decide how to respond to the ruling, but the current law will have to be amended. In a statement, the home secretary, Jacqui Smith, said she was “disappointed” by the court’s decision.
“I strongly believe DNA and fingerprints play an invaluable role in fighting crime and bringing people to justice,” she said. Britain’s DNA Database contains the profiles of more than 4.6 million people, some 860,000 of whom do not have criminal records. Privacy experts say that this represents a higher proportion of Britain’s population than do similar databases in other countries.
“They’re in the vanguard of doing this, is the polite way of saying it,” said Daniel P. Cooper, a partner at Covington & Burling, a corporate and business law firm that filed an amicus brief in the case on behalf of Privacy International, an advocacy group. “They have the biggest database in Europe, and possibly globally, for law enforcement purposes.”
Human rights groups applauded the court’s decision as a welcome check on the powers of the state.
“Forty percent of Britain’s criminals are not on this database, but hundreds of thousands of innocent people are,” said Anna Fairclough, the legal officer of Liberty, a British group that advocates for human rights. The court, she said, “has protected the privacy of British people so poorly let down by our own government.”
The government argues that information on the database collected from suspects in past crimes has helped investigators solve thousands of fresh cases in the past eight years, including at least 53 murders and 94 rapes.
Britain has a reputation for intruding in an increasingly heavy-handed way in its citizens’ private lives. It is said to have the most CCTV cameras per capita in the world. A government plan to issue mandatory ID cards encoded with personal information has stirred fierce opposition in a country that has long celebrated individual liberty.
“There have been a number of recent government initiatives which have been very worrying to privacy advocates,” Mr. Cooper said. “And there have been so many massive data breaches and leaks of information that anytime the government proposes something that would require collecting more data, people get very concerned.”
The DNA case was brought by two Sheffield men who were arrested in separate cases in 2001, but were both ultimately cleared of committing crimes. One, identified as Mr. S., 19, was charged with armed robbery; he was later acquitted. The other, Michael Marper, now 45, was arrested and charged with harassment in 2001; the charges were eventually dropped.
In both cases, the suspects’ fingerprints and DNA samples were taken by the police. Both men asked later that the samples be destroyed, but the police refused.
While most European countries allow the police to take fingerprints and DNA samples in some criminal cases, England and Wales are alone in Europe in allowing the samples to be taken as a matter of course, and in keeping them indefinitely, experts say. Scotland has separate, less stringent, rules.
The two men took their case to the European court after losing a series of battles in British courts, arguing that the police’s decision to keep the samples violated their right to privacy as set out in Article 8 of the European Convention on Human Rights. Having information on the DNA data base was humiliating and stigmatizing, they said.
The court agreed, saying that Britain had “overstepped any acceptable margin of appreciation” in striking a balance between individual rights and public interests.
The current law, it said in stinging language, “constitutes a disproportionate interference in the applicants’ right for respect to private life and cannot be regarded as necessary in a democratic society.”
..News Source.. by SARAH LYALL
July 20, 2008
How reliable is DNA in identifying suspects?
7-20-2008 National:
A discovery leads to questions about whether the odds of people sharing genetic profiles are sometimes higher than portrayed. Calling the finding meaningless, the FBI has sought to block such inquiry.
State crime lab analyst Kathryn Troyer was running tests on Arizona's DNA database when she stumbled across two felons with remarkably similar genetic profiles.
The men matched at nine of the 13 locations on chromosomes, or loci, commonly used to distinguish people.
The FBI estimated the odds of unrelated people sharing those genetic markers to be as remote as 1 in 113 billion. But the mug shots of the two felons suggested that they were not related: One was black, the other white.
In the years after her 2001 discovery, Troyer found dozens of similar matches -- each seeming to defy impossible odds.
As word spread, these findings by a little-known lab worker raised questions about the accuracy of the FBI's DNA statistics and ignited a legal fight over whether the nation's genetic databases ought to be opened to wider scrutiny.
The FBI laboratory, which administers the national DNA database system, tried to stop distribution of Troyer's results and began an aggressive behind-the-scenes campaign to block similar searches elsewhere, even those ordered by courts, a Times investigation found.
At stake is the credibility of the compelling odds often cited in DNA cases, which can suggest an all but certain link between a suspect and a crime scene.
When DNA from such clues as blood or skin cells matches a suspect's genetic profile, it can seal his fate with a jury, even in the absence of other evidence. As questions arise about the reliability of ballistic, bite-mark and even fingerprint analysis, genetic evidence has emerged as the forensic gold standard, often portrayed in courtrooms as unassailable.
But DNA "matches" are not always what they appear to be. Although a person's genetic makeup is unique, his genetic profile -- just a tiny sliver of the full genome -- may not be. Siblings often share genetic markers at several locations, and even unrelated people can share some by coincidence.
No one knows precisely how rare DNA profiles are. The odds presented in court are the FBI's best estimates.
The Arizona search was, in effect, the first test of those estimates in a large state database, and the results were surprising, even to some experts.
Defense attorneys seized on the Arizona discoveries as evidence that genetic profiles match more often than the official statistics imply -- and are far from unique, as the FBI has sometimes suggested.
Lawyers seek searches
Now, lawyers around the country are asking for searches of their own state databases.
Several scientists and legal experts as well want to test the accuracy of official statistics using the nearly 6 million profiles in CODIS, the national system that includes most state and local databases.
"DNA is terrific and nobody doubts it, but because it is so powerful, any chinks in its armor ought to be made as salient and clear as possible so jurors will not be overwhelmed by the seeming certainty of it," said David Faigman, a professor at UC Hastings College of the Law, who specializes in scientific evidence.
FBI officials argue that, under their interpretation of federal law, use of CODIS is limited to criminal justice agencies. In their view, defense attorneys are allowed access to information about their specific cases, not the databases in general.
Bureau officials say critics have exaggerated or misunderstood the implications of Troyer's discoveries.
Indeed, experts generally agree that most -- but not all -- of the Arizona matches were to be expected statistically because of the unusual way Troyer searched for them.
In a typical criminal case, investigators look for matches to a specific profile. But the Arizona search looked for any matches among all the thousands of profiles in the database, greatly increasing the odds of finding them. ..A very long L.A. Times Source.. by Jason Felch and Maura Dolan, Los Angeles Times Staff Writers
May 27, 2008
IL- DNA exonerates man convicted of sex assault
Faulty witness account put South Sider in prison 14 years
5-27-2008 Illinois:
DNA tests have exonerated a South Side man who has served nearly 14 years in prison for the sexual assault of a 15-year-old girl who was attacked in the fall of 1994 as she walked to school near 69th and State Streets, the prisoner's lawyer said Tuesday.
Dean Cage, 41, was convicted by a jury and sentenced to 40 years in prison despite his assertions that he was innocent and was home at the time of the attack.
Attorney Peter Neufeld, co-founder of the New York-based Innocence Project, which investigates wrongful convictions, said that he was informed by the Cook County state's attorney's office that it had the case dismissed after DNA tests eliminated Cage as the victim's attacker.
Cage, who has been confined to the Illinois River Correctional Center in Downstate Canton, is expected to be released within 24 hours, Neufeld said.
The exoneration of Cage is the 29th such case of innocence in Illinois and the 217th DNA exoneration in the nation, according to the Innocence Project.
The case is another example of an erroneous eyewitness identification leading to a wrongful conviction, Neufeld said. More than 75 percent of the wrongful convictions that have resulted through DNA testing involved faulty eyewitness testimony, he said.
The victim had testified in a trial before Circuit Judge Michael Bolan that she was walking to catch a bus about 6:25 a.m. on Nov. 14, 1994, when a man wearing blue jeans, a black leather jacket and a hat with a snap on it grabbed her and dragged her between two porches of an apartment building. She was then slammed against a wall and sexually assaulted, she said.
After her attacker fled, she ran into the street where a newspaper truck driver saw her and notified police, according to trial testimony.
A computer-generated composite sketch was circulated in the neighborhood and about a week later a tipster told police that a possible suspect worked at a meat-packing plant nearby.
Police took the victim to the business, where Cage was employed. The woman identified him as her attacker, according to trial testimony.
Cage testified at the trial that he was home on the morning of the crime and did not leave until about 7:30 a.m. ..News Source.. by Maurice Possley Tribune reporter
May 23, 2008
TX- DA says conviction in 'Ashley's Laws' case can't stand
5-23-2008 Texas:
PLANO, Texas — A suburban Dallas district attorney says there's not enough evidence to uphold the conviction of a man on death row for the child slaying that led to the creation of "Ashley's Laws."
Collin County District Attorney John Roach said in a statement Friday that new DNA evidence does not connect Michael Blair to the 1993 killing of 7-year-old Ashley Estell.
The girl's death prompted the Legislature to pass tough laws, called "Ashley's Laws," that require longer prison terms and public registration for sex offenders.
At the time of the slaying, Blair was on parole after serving only 18 months of a 10-year sentence for burglary and indecency with a child.
Last month, The Texas Court of Criminal Appeals asked a trial court to determine the significance of new DNA testing in the Blair case.
Even if Blair is formally exonerated in the capital murder case, he has been sentenced to three consecutive life sentences in the sexual assaults of other children in the early 1990s. ..more.. by Associated Press
May 7, 2008
NV- Appeals court tosses rape conviction, criticizes scientist's DNA testimony
5-7-2008 Nevada:
A federal appeals court Monday threw out the conviction of a 36-year-old Carlin man found guilty of raping a 9-year-old girl in 1994, saying DNA testimony from a Washoe County Crime Laboratory scientist was "misleading" and "unreliable."
The three-judge panel of the 9th U.S. Circuit Court of Appeals (Case no: 07-15592 Brown -v- Farwell) said prosecutors have 180 days to retry Troy Don Brown or release him after his 14 years in prison.
Paul Turner, an assistant federal public defender who handled the appeal, said he was pleased for his client but said "the case isn't over."
Deputy Attorney General Erik Levin said he was reviewing the order to decide whether to ask the panel to reconsider its decision or ask for a review by the full court.
"I respectfully disagree with their ruling," he said, adding that even without the DNA, "there was sufficient evidence to convict Troy Brown."
Brown was accused of raping the girl at her trailer while her mother was at a tavern.
At the trial, Renee Romero, a DNA expert and head of the Washoe County crime lab, testified that "Troy's DNA matched the DNA found in (the victim's) underwear, and that 1 in 3 million people randomly selected from the population would also match" that DNA, the court order said.
After the prosecutor pressed her to put this another way, Romero testified "there was a 99.99967 percent chance that the DNA found in (her) underwear was from Troy's blood," the order said.
The Elko County jury found Brown guilty of two counts of sexual assault, for which he received two consecutive life sentences. Brown appealed twice to the Nevada Supreme Court and lost, and then went to U.S. District Court in 2004.
Misleading testimony
After reviewing a report challenging Romero's testimony, a federal judge ruled in Brown's favor.
The state appealed, and in a 2-1 decision, the panel ruled that Romero's testimony on the nearly 100 percent likelihood it was Brown created a "fallacy" that misled the jury.
"In fact, the former testimony (1 in 3 million) is the probability of a match between an innocent person selected randomly from the population; this is not the same as the probability that Troy's DNA was the same as the DNA found in (her ) underwear, which would prove his guilt," the judges said.
'Prosecutor's fallacy'
This claim creates what is known as the 'prosecutor's fallacy'," the judges said, which "occurs when the prosecutor elicits testimony that confuses source probability with random match probability."
"Put another way, a prosecutor errs when he 'presents statistical evidence to suggest that the (DNA) evidence indicates the likelihood of the defendant's guilt rather than the odds of the evidence having been found in a randomly selected sample," the court said.
"In sum, Romero's testimony that Troy was 99.99967 percent likely to be guilty was based on her scientifically flawed DNA analysis, which means that Troy was most probably convicted based on the jury's consideration of false, but highly persuasive, evidence."
Romero said she did not recall testifying to the 99.99967 percent figure.
"Normally we say 'frequency of occurrence," she said, adding that gives a more accurate picture. "I must have been asked the question that way. I'll have to look at my transcripts."
The appeals judges also said the evidence beyond the DNA was weak. One witness said Brown was still at the bar 30 to 90 minutes after the assault; the victim sometimes identified Brown, and at other times said it was another man; her description of Brown's clothing that night did not match his attire, the judges said.
"The conflicts in the evidence are simply too stark for any rational trier of fact to believe that Troy was the assailant beyond a reasonable doubt," the appeals court said. ..more.. by MARTHA BELLISLE
May 1, 2008
House approves anti-genetic discrimination bill
My intent in this post was to simply show another way that DNA can be used and now I apoligize for not explaining originally. I have received a number of comment on this entry and each has gone to the merits of DNA or genetics, none of which I disagree with, but since that topic is not the subject of this blog I will bypass posting them and leave that for an appropriate blog elsewhere. Again, I apoligize for not making my reasoning clear and hope folks can see why I wish to stick to the subject of this blog. SOme of the comments are appropriate for this post: The Department of Justice is asking for "Public Comments" on a Proposed Rule concerning DNA eAdvocate
5-1-2008 National:
WASHINGTON (AP) -- Companies would no longer be able to use genetic information like a person's predisposition for breast cancer, sickle cell or diabetes to make insurance or job decisions under a bill passed by Congress on Thursday.
The House voted 414-1 for the legislation a week after it passed the Senate on a 95-0 vote. The bill (HR 493)would bar health insurance companies from using genetic information to set premiums or determine enrollment eligibility. Similarly, employers could not use genetic information in hiring, firing or promotion decisions.
Rep. Ron Paul, R-Texas, was the only member of Congress to vote against the bill.
--What???---
President Bush is expected to sign it into law.
Rep. Louise Slaughter, D-N.Y., said that for years doctors have been forced to tell women whose families have a history of breast cancer to refuse genetic testing for fear of discrimination.
"They have recommended to them that until a bill such as the one we are passing today becomes law in this country, they should not put at risk their health insurance," Slaughter said.
The use of genetics to determine insurance and benefit eligibility is not unprecedented.
In the 1970s, several insurers denied coverage to blacks who carried the gene for sickle cell anemia. The Lawrence Berkeley National Laboratory in California secretly tested workers for sickle cell trait and other genetic disorders from the 1960s through 1993; workers were told it was routine cholesterol screening.
In another incident, Burlington Northern and Santa Fe Railway Co. paid 36 employees $2.2 million in 2002 to settle a lawsuit in which the workers claimed the company sought to genetically test them without their knowledge after they had submitted work-related injury claims. The railroad denied that it violated the law or engaged in discrimination.
Without genetic testing, researchers say it will be more difficult to find early, lifesaving therapy for a wide range of diseases with hereditary links such as breast and prostate cancer, diabetes, heart disease and Parkinson's disease.
"We will never unlock the great promise of the Human Genome Project if Americans are too afraid to get genetic testing," said Rep. Judy Biggert, R-Ill., who sponsored the bill along with Slaughter.
Each person probably has six or more genetic mutations that place them at risk for some disease, according to the National Human Genome Research Institute. That does not means that a disease will develop, researchers said, just that the person is more likely to get it than someone without the genetic mutation.
Congressional efforts to set federal standards to protect people from genetic discrimination go back more than a decade, to a time when there were only a small number of genetic tests.
But now, with the mapping of the human genome in 2003, people have access to far more information about their hereditary disposition to such crippling afflictions as cystic fibrosis, Huntington's disease or Lou Gehrig's disease.
"Currently the fear of misuse of genetic information is preventing people from getting these important genetic tests done," said Rep. Pete Sessions, R-Texas. "The refusal to utilize effective genetic tests hurts individuals, researchers, and doctors alike. Lack of testing denies individuals important medical information that they could otherwise use to be proactively managing within their health with their doctor."
According to National Human Genome Research Institute, 41 states already have enacted legislation related to genetic discrimination in health insurance and 31 states adopted laws regarding genetic discrimination in the workplace.
There has never been a federal law, although then-President Clinton issued an executive order early in his administration to ban the federal government - the nation's largest employer - from demanding that employees undergo any sort of genetic test or from considering a person's genetic information in hiring or promotion decisions. ..more.. by JESSE J. HOLLAND
April 29, 2008
CA- State widens DNA scanning in cold cases
Near-match a hint offender related to person in database
4-29-2008 California:
The California Department of Justice will help crime investigators identify new suspects in cold cases by scanning its DNA database for near-matches to crime-scene samples after an attempt to find an exact match fails.
A partial genetic match could suggest to police that the person they're looking for is a relative of a past lawbreaker whose genes are already in the system.
California Attorney General Jerry Brown announced the initiative this week at a meeting of state district attorneys, who have been clamoring for possible family leads to unknown offenders whose DNA was left at crime scenes. Until now, the state has released only exact matches between DNA evidence samples and individuals in its database of more than 1 million people.
The new program contains rules designed to protect genetic privacy, but civil rights organizations raised concerns that the enforcement tool would expose innocent family members to police surveillance and investigation.
Brown made the announcement the same day the U.S. Senate passed a genetic anti-discrimination act that would shield Americans from loss of medical insurance or job opportunities based on DNA tests that reveal their health risks. Genetic watchdogs say the same attention should be focused on the impact the expanding forensic use of DNA may have on privacy.
The sharing of partial DNA matches will provide only investigative leads, which will have to be buttressed by normal police evidence gathering before charges can be brought against a family member of the DNA donor in the database, Brown said.
The investigating agency would have to attest that all other avenues to solve the crime have been exhausted. The DNA near-matches could result in the arrest of a violent offender who might otherwise commit more crimes, the attorney general said.
"It's not (for) a parking ticket," Brown said. "We're talking about an unsolved murder or an unsolved rape where we have a technology to give us a lead to go further."
Policy discussion advocated
Tania Simoncelli, a science adviser for the American Civil Liberties Union in New York, said the expansion of DNA as a crime-fighting tool should be the subject of a broad policy discussion of its effect on society. "This isn't a decision that should be made only by law enforcement," she said.
State and federal agencies have been broadening DNA collection policies to include not only the convicted but also people accused of crimes, Simoncelli has argued. In January, California will begin taking DNA samples from anyone arrested in a felony case.
To a growing extent, criminal databases permanently retain DNA from people never convicted, Simoncelli maintains. In addition, she says, experts are developing ways to predict the appearance of people based on their genes, and some law enforcement agencies have surreptitiously collected DNA samples from cigarette butts and used coffee cups.
Simoncelli said on Friday that DNA databases contain disproportionate numbers of minority members because they are a greater focus of law enforcement than whites. Releasing family DNA matches would expose those communities to even wider genetic surveillance, she said.
Under California's standard for a partial match between crime scene DNA and genetic profiles in the state database, only relations as close as parents and siblings would usually be identified, said Brown's spokesman Gareth Lacy.
However, such near-matches might point to more distant relations or even nonrelatives, said Sheldon Krimsky, a Tufts University professor who is writing a book on forensic use of DNA.
Brown's chief assistant, Dane Gillette, said familial DNA leads would not be released unless testing were conducted beyond the routine genetic profiles created for the state database. The additional tests would have to confirm a family relationship between the DNA donor from the database and the unknown offender, he said.
Beyond that, Gillette said, a mere partial DNA match would almost certainly not be enough to justify a search warrant for DNA samples from the donor's relations. However, he said, police might request voluntary samples from family members.
'DNA dragnet'
Michael Risher, an attorney at the ACLU of Northern California, said police might pressure relatives who have never been in trouble with the law to give DNA samples to clear themselves. Civil rights advocates call this approach a "DNA dragnet" that could undermine the constitutional shield against government searches of individuals without a reasonable suspicion of wrongdoing. The civil rights advocates say law enforcement agencies would be tempted to keep those samples for future genetic investigations.
Familial DNA searches can now cross state lines. The FBI, which collects data from all state DNA databases, allows states to share DNA partial matches with each other. California will accept requests from other states. Brown said he knows of no other state except Colorado that has a formal policy to release partial DNA matches.
At California's DNA forensics lab in Richmond, experts will also conduct customized DNA searches for family matches to specific genetic characteristics of unknown offenders in cases with "critical public safety implications."
Sharon Terry, president of the Genetic Alliance in Washington, D.C. , said the release of partial matches to law enforcement agencies "doesn't sound ethical at this point." The nonprofit supports the Genetic Information Nondiscrimination Act, which was passed by the Senate this week with strong backing from manufacturers of DNA-based diagnostic tests for health risks. Such companies fear their products will go unused if patients think the results would cost them a job or their medical insurance.
Terry said the relatives of criminal offenders have no equally powerful contingent to speak for them. "I think it's up to the rest of society to guard their interests," she said. ..more.. Bernadette Tansey at btansey@sfchronicle.com.
April 26, 2008
CA- California takes lead on DNA crime-fighting technique
A few days ago I mentioned how DNA can be used in new evolving ways, well here we go! So if you have not yet entered your "Public Comment" to the DOJ request it is time to think about it.
4-26-2008 California:
The state will search its database for relatives of unidentified suspects in hopes of developing leads. Critics voice privacy concerns.
California will adopt the most aggressive approach in the nation to a controversial crime-fighting technique that uses DNA to try to identify elusive criminals through their relatives, state Atty. Gen. Jerry Brown announced Friday.
Employing what is known as familial or "partial match" searching, the policy is aimed at identifying a suspect through DNA collected at a crime scene by looking for potential relatives in the state's genetic database of about a million felons. Once a relative is identified, police can use that person as a lead to trace the suspect.
The new plan makes California a leader in such searches, which several states permit but do not vigorously pursue. Colorado has recently begun to examine its database for relatives of unknown criminals as part of a research project.
Brown said the new approach was justified by violent crime plaguing the state. He emphasized that it would be used only when all other leads had been exhausted.
"We have 2,000 murders a year in California -- that is 10,000 since the Iraq war started -- and that is a lot of killing," Brown said. "When you see it and see the victims and have to go to funerals, it is pretty serious stuff."
But Tania Simoncelli, science advisor to the American Civil Liberties Union, called Brown's decision a disappointment and said the organization is exploring its legality. The group has not decided whether to challenge the policy in court.
"The fact that my brother committed a crime doesn't mean I should have to give up my privacy," she said.
At a recent FBI conference on familial searching, Jeffrey Rosen, a constitutional law professor at George Washington University, warned: "I can guarantee if familial searching proceeds, it will create a political firestorm."
The policy, which takes effect immediately, is designed to work like this: The state's crime lab will tell police about DNA profiles that come up during routine searches of California's offender database and closely resemble, but do not match, the DNA left at a crime scene. (Previously, the state refused to tell police about these partial matches.)
The lab will then perform calculations and tests to determine the likelihood of a biological relationship between the person found in the database and the unknown offender believed to have left DNA at the crime scene.
When such partial matches do not surface or fail to produce a lead, a more customized familial search can be done in which computer software scans the database proactively for possible relatives. The software measures the chance of two people being related based on the rarity of the markers they share.
California appears to be the first state in the nation to use this second technique as a matter of policy. Drafted with the heavy involvement of lawyers, the new policy requires a series of meetings with police and prosecutors to ensure that the relative's name is vital to the investigation and that all other leads have been exhausted.
Once a relative has been identified, police can interview him or construct a family tree based on existing records. If a suspect is identified, police can obtain a warrant for his DNA, or even gather it surreptiously from an abandoned drink or cigarette butt. The suspect's DNA sample would then be compared to the crime scene sample and possibly used as evidence.
"The people of California will know that we are using the database to try to solve as many crimes as we can, unlike virtually every other state in the country," said retired Alameda County Dist. Atty. Rockne P. Harmon, who consulted with the state on the policy.
Civil libertarians oppose using DNA databases to search for relatives of unknown offenders, saying it puts family members under "genetic surveillance" for crimes they did not commit. For now, all the people in the state's database are convicted offenders, but the state plans to expand the database next year to include arrestees, heightening concerns over privacy.
Critics say familial searching could expose sensitive and secret genetic relationships. A son, for example, could learn that his father was not his biological parent. DNA databases also reflect the racial and ethnic biases of the justice system, exposing minority communities to more surveillance than others, critics maintain.
FBI officials in charge of the national database network have also expressed concerns, making them unlikely allies of civil libertarians on familial searching. They urge a cautious approach, worrying that the courts will balk at this type of sleuthing. No law specifically authorizes it, and some legal scholars consider it unconstitutional because they say it amounts to an unreasonable search.
Brown called such objections hypothetical. The policy forbids the release of the names of relatives until genetic tests and analysis convince the state that the person is indeed a relative.
"It is still not going to be a fail-safe system, and we are going to make mistakes," said Simoncelli, the ACLU science advisor. "We are opening the door to using the database in such a fundamentally different way than the purpose for which it was established."
No one knows how well the state's plan will work. Harmon said he was absolutely convinced that it would provide at least some new leads for police.
Lance Gima, the state's top forensic scientist, agreed. But he conceded that the search for relatives would be a longshot because many unrelated people share genetic markers. He said he hoped the state's decision would spur technology to improve the accuracy of such searches.
Britain has done familial searching for years, using more sophisticated software. With a 10% to 14% rate of identifying perpetrators, Britain's searches have had limited but dramatic results, cracking some sensational crimes.
A serial rapist whose DNA was not in Britain's national database was caught because he was genetically similar to his sister, whose DNA was taken after a drunk-driving arrest. The so-called shoe rapist had a fetish for stiletto heels. When police captured him, they discovered scores of high heels he had stolen from his victims.
Police in the U.S. have used genetic relationships to help catch criminals in a different way, and on a much smaller scale.
After Kansas police zeroed in on the serial killer who dubbed himself BTK -- initials for bind, torture, kill -- they obtained a court order for the pap smear of his daughter. Without her knowledge, police performed a DNA analysis of the specimen, obtained from a medical laboratory.
The genetic similarities indicated they had the right man, Dennis Radar. ..more.. by Maura Dolan and Jason Felch, Los Angeles Times Staff Writers
April 25, 2008
The Department of Justice is asking for "Public Comments" on a Proposed Rule concerning DNA
4-25-2008 National:
On Friday April 18, 2008 the Department of Justice posted the following in the Federal Register: The Department of Justice is publishing this proposed rule to implement amendments made by section 1004 of the DNA Fingerprint Act of 2005 and section 155 of the Adam Walsh Child Protection and Safety Act of 2006 to section 3 of the DNA Analysis Backlog Elimination Act of 2000.
It might be a good idea to print the PROPOSED RULE from the Federal Register so you can read it before posting your comments: CLICK (it is a PDF file)
This rule directs agencies of the United States that arrest or detain individuals, or that supervise individuals facing charges, to collect DNA samples from individuals who are arrested, facing charges, or convicted, and from non-United States persons who are detained under the authority of the United States.
Unless otherwise directed by the Attorney General, the collection of DNA samples may be limited to individuals from whom an agency collects fingerprints. The Attorney General also may approve other limitations or exceptions.
Agencies collecting DNA samples are directed to furnish the samples to the Federal Bureau of Investigation, or to other agencies or entities as authorized by the Attorney General, for purposes of analysis and entry into the Combined DNA Index System.
DATES: Written comments must be submitted on or before May 19, 2008.
ADDRESSES: Comments may be mailed to David J. Karp, Senior Counsel, Office of Legal Policy, Room 4509, Main Justice Building, 950 Pennsylvania Avenue, NW., Washington, DC 20530. To ensure proper handling, please reference OAG Docket No. 119 on your correspondence.
In addition: You may submit comments electronically (That is done from the Regulations.gov website) . Here is the procedure to get you to the proper document on the Regulations.gov website:
1) Click on this link: http://www.regulations.gov/
2) In the SEARCH box enter: DOJ-OAG-2008-0009-0001
3) Near the bottom of the page you will see "View this document" and just above that is this Docket ID: DOJ-OAG-2008-0009 CLICK on that link
4) Now you will see a full page, where you can "add your comment," or see the comments that others have already entered.
Note: To add your comment click on the yellow balloon
which is on the PROPOSED RULE line over to the right side.
CAUTION: BEFORE ENTERING YOUR COMMENTS read the following which explains how to stop your PERSONAL or BUSINESS INFORMATION from appearing online, although your comment will still appear.
Posting of Public Comments:
Please note that all comments received are considered part of the public record and made available for public inspection online at http://www.regulations.gov. If you wish to submit a comment, the public posting will include voluntarily submitted personal identifying information (such as your name, address, etc.).
If you want to submit personal identifying information (such as your name, address, etc.) as part of your comment, but do not want it to be posted online, you must include the phrase ‘‘PERSONAL IDENTIFYING INFORMATION’’ in the first paragraph of your comment. You also must locate all the personal identifying information you do not want posted online in the first paragraph of your comment and identify what information you want redacted (not printed online).
If you want to submit confidential business information as part of your comment but do not want it to be posted online, you must include the phrase ‘‘CONFIDENTIAL BUSINESS INFORMATION’’ in the first paragraph of your comment. You also must identify prominently any confidential business information to be redacted within the comment.
If a comment has so much confidential business information that it cannot be redacted effectively, all or part of that comment might not be posted on http:// www.regulations.gov.
Personal identifying information and confidential business information identified and located as set forth above will be placed in the agency’s public docket file, but not posted online. If you wish to inspect the agency’s public docket file in person by appointment, please see the FOR FURTHER INFORMATION CONTACT paragraph.
Please remember that DNA is an ever evolving science. The articles I have recently posted here here and here show that more and more information can be learned from a person's DNA.
Another major point, where can DNA be collected from, the articles above show that when a person gives a blood sample or other body fluids for medical reasons, can the government obtain those to add to CODIS. Far fetched today, but ask any registered sex offender how those rules have evolved since their inception. Many questions remain.
Today this rule basically covers COLLECTING DNA but I see nothing in the rule that prevents lawmakers -in the future- from doing anything they want with the CODIS data base where all DNA information is stored.
This is a complicated proposed rule and honestly I don't have answers to many questions that my own mind conjures up. I am not sure that I can even take in the Acts that are involved here in time to enter an intelligent comment before the DEADLINE of May 19, 2008.
I suggest that, since multiple comments are permitted, when you think of something, make it a comment by itself.
Good luck, and I'll try my best to answer questions, but I am not an authority on this Proposed Rule.
Have a great day and a better tomorrow.
eAdvocate
April 24, 2008
Genetic Nondiscrimination Bill Clears Congress
What will prevent Lawmakers from misusing genetic information. i.e., DNA (More to come)
4-24-2008 National:
A bill to protect Americans from discrimination based on their genetic makeup has passed the Senate by a vote of 95-0, sending it to the president's desk via a final vote in the house that is considered a formality. President Bush is widely expected to sign the legislation into law.
The Genetic Information Non-Discrimination Act, aka GINA and S. 358, had been bouncing around Congress for a decade, but this is the first time it has passed through both the House and Senate.
"After a very long wait, Americans can now be confident that their genetic information cannot be used by health insurers or employers in harmful or hurtful ways," Kathy Hudson, director of the Genetics and Public Policy Center, said in a statement.
The legislation's passage could make consumers and patients more willing to have their DNA tested for disease-indicators, which could swing the door wide-open for so-called personalized medicine in which genetic and genomic data is used to tailor treatments. It could be a major win for genomic testing companies like 23AndMe and Navigenics, who are collecting and analyzing unprecedentedly large amounts of genetic information from their clients.
Genetic testing advocates worried that the adoption of testing would be slowed by the lack of government protection. Surveys appeared to back that sentiment with an overwhelming number of Americans saying they wanted their genetic data safeguarded from employers and insurers.
GINA, specifically, would bar employers and insurance companies from using genetic information in human resources decisions or determining insurance eligibility.
The bill appeared on the verge of passing into law last year before it got held up by Tom Coburn, a Republican Senator from Oklahoma as detailed in a Wired.com story last year, "Genetic Non-Discrimination Bill Stalled in Senate."
Coburn's press secretary, Don Tatro, said that a clause was added to the legislation that removed Coburn's concerns.
"Dr. Coburn supported the Genetic Information Non-Discrimination Act the whole time," Tatro said. "We just wanted to make sure that we didn't create unintended consequences." ..more.. by Alexis Madrigal
DNA - A Special Report
4-24-2008 National:
Remember this report: From DNA of Family, a Tool to Make Arrests
Scenario: Suppose a prosecutor could allege in a criminal proceeding for say robbery, that the defendant's DNA contains a marker which places him in the group of convicted felons who are known to commit robberies, and even though the defendant's DNA was not at the scene of the robbery, it is highly likely that he has committed the robbery because he was in the vicinity of the robbery.
Today this is not possible but stay tuned, because later today I will present a Special Report on DNA. The horizon is changing and it is getting scary.
April 21, 2008
From DNA of Family, a Tool to Make Arrests
Privacy Advocates Say the Emerging Practice Turns Relatives Into Genetic Informants
He was a church-going father of two, and for more than 30 years Dennis Rader eluded police in the Wichita area, killing 10 people and signing taunting letters with a self-styled monogram: BTK, for Bind Torture Kill. In the end, it was a DNA sample that tied BTK to his crimes. Not his own DNA. But his daughter's.
Investigators obtained a court order without the daughter's knowledge for a Pap smear specimen she had given five years earlier at a university medical clinic in Kansas. A DNA profile of the specimen almost perfectly matched the DNA evidence taken from several BTK crime scenes, leading detectives to conclude she was the child of the killer. That allowed police to secure an arrest warrant in February 2005 and end BTK's murderous career.
The BTK case was an early use of an emerging tool in law enforcement: analyzing the DNA of a suspect's relatives. In the BTK example, police had a suspect and were looking to tie him to the crime. But now, states are moving to conduct familial searches of criminal databases, looking for close-to-perfect matches with DNA from crime scenes. A partial match with a convicted criminal could implicate a brother or daughter or father of the convict. Such searches, advocates say, constitute a powerful law enforcement tool that, experts say, could increase by 40 percent the number of suspects identified through DNA.
As things stand in some states, lab analysts who discover a potential suspect in this way may not be permitted to share that information with investigators. Such a policy, said William Fitzpatrick, a New York state district attorney, "is insanity. It's disgraceful. If I've got something of scientific value that I can't share because of imaginary privacy concerns, it's crazy. That's how we solve crimes."
But the technique is arousing fierce objections from privacy advocates, who maintain that it turns family members into genetic informants without their knowledge or consent. They complain that it takes material collected for one purpose and uses it for another. And with the nation's DNA database disproportionately comprised of minority offenders, they say, it amounts to placing a class of Americans under greater scrutiny merely because their relatives have committed crimes.
"If practiced routinely, we would be subjecting hundreds of thousands of innocent people who happen to be relatives of individuals in the FBI database to lifelong genetic surveillance," said Tania Simoncelli, science adviser to the American Civil Liberties Union.
Nonetheless, California, which maintains the world's third-largest criminal DNA database with more than 1 million samples, will soon become the first state to adopt a protocol to allow for familial searches. Last week, Colorado performed a test run of familial search software on its criminal database. In Massachusetts, officials say they plan to develop a policy to allow familial searches.
The technique is being adopted as states and the federal government expand their databanks to include profiles of people who have been arrested but not convicted of certain crimes.
Only Maryland has expressly banned familial searching in a law adopted this month to expand its DNA database to include anyone charged with a violent crime. The FBI, which maintains the world's largest forensic DNA database with almost 6 million profiles, said it has so far refrained from adopting the technique because of concerns about constitutional challenges.
"The FBI would be more comfortable with congressional authorization to conduct familial searches," said Thomas Callaghan, head of the FBI's national DNA database.
However, he said, the bureau does occasionally find partial matches. When it does, under an interim policy, it allows states to follow up to see whether a relative is involved.
An advisory group to the FBI has proposed a final policy that goes further, recommending that partial matches be subjected to additional DNA testing and statistical analysis that would help investigators home in on relatives of people in the federal database.
"How is that not familial searching?" said Simoncelli of the ACLU. "You're still using the database to try to get to family members."
The key is intent, Callaghan said. The bureau is "not deliberately trolling the database looking for relatives," he said.
Heightening privacy concerns are the growing number of local jurisdictions that maintain DNA databases not restricted to criminals. Some include the DNA of victims, suspects or even lab workers. Such collections, which critics call "rogue databases," are barred from inclusion in state and national databases, but rules about their use by law enforcement agencies are unclear.
The Supreme Court has repeatedly held that authorities may not conduct searches for general law enforcement purposes without suspicion about individuals. Although convicted criminals have a diminished expectation of privacy, searching a database for unknown relatives might violate that principle, said Jeffrey Rosen, a George Washington University law professor.
"The idea of holding people responsible for who they are rather than what they've done could challenge deep American principles of privacy and equality," he said. "Although the legal issues aren't clear, the moral ones are vexing."
Finding BTK
BTK first struck in 1974, strangling a man, his wife and their two children, 11 and 9, in their home. He killed six more times over the next 17 years, tying up his prey with electrical tape, nylon stockings and rope.
After 14 years of silence, BTK reemerged in 2004, sending messages to authorities via the media hinting that he was about to strike again. Computer forensics revealed that a document on a CD sent to a local television station had been saved by a person named "Dennis" at a local church.
Investigators zeroed in on Dennis Rader, the congregation president, but before they moved, they wanted evidence tying him to the crimes.
They learned that Rader had a daughter who had attended Kansas State University, and they reasoned that at some point she must have used the medical clinic, said Wichita police Lt. Ken Landwehr. "It was suggested that she probably had a Pap smear," he said. Federal law requires that labs keep Pap smears for five years, principally in case of legal challenges over diagnoses.
The prosecutors obtained a subpoena and a court order for the daughter's specimen to compare with BTK's DNA. (An exemption in the Family Educational Rights and Privacy Act allows law enforcement to obtain a student's health data with a court order.)
"It was obviously good detective work," said Nola Tedesco Foulston, the prosecutor in the case.
At the same time, said George Washington University law professor Sonia Suter, "it is so troubling to think that somebody would have a sample taken for her medical welfare that is then used to implicate her father."
To Phyllis Hedge, daughter-in-law of a BTK victim, it is justified by the need to stop violent criminals. Her mother-in-law, Marine Hedge, was stalked and strangled by BTK in 1985. Twenty years later, Hedge said, she and her husband, Tommy, were stunned and elated to see on television a picture of her mother-in-law with news of BTK's arrest. In 2005, Rader was sentenced to 10 consecutive life terms.
"Whatever it takes to catch these people who do these atrocities, who have no respect for human life, whatever it takes to get them, is totally appropriate. . . . I'm grateful to [Kerri Rader]," she said.
Landwehr said he spoke with Kerri after her father had been arrested and that "she had no problem" with the use of her Pap smear. "What we had to do, we had to do," he said. "She understands that." Through her husband, Kerri Rader declined to comment.
Matching the Markers
To match DNA from tissue samples -- skin left under fingernails, semen on a car seat, saliva traces on a water glass -- forensic scientists examine the information contained at 13 locations on the human genome. Two genetic markers -- one from each parent -- are scrutinized at each of those locations, creating a profile of an individual that can be compared against a database of criminals. A match on all 26 markers -- called alleles -- is a perfect hit, indicating the samples come from the same person. A match on at least 16 alleles, especially if they involve a rare one, could indicate that a close relative left a sample, experts said.
"It's an extremely powerful tool," said Mitch Morrissey, Denver District Attorney. Not using it would be a wasted opportunity, he said. "It's like you build a Porsche and you drive it like a Pinto."
But one area that has civil libertarians greatly concerned is the potential to apply the technique to local databases unregulated by the stringent rules that apply to the national database and its state counterparts. Last September, Denver conducted the first test in the United States of familial searching software on a DNA database, using the county's databank of 1,700 profiles. Along with profiles from suspects, it also included lab employees and people who allowed their DNA to be taken to eliminate them as suspects. The people who were not suspects signed waivers, Morrissey said, allowing their DNA profiles to be used for research.
The test yielded three partial matches that, with additional testing and analysis, reflected a 90 percent likelihood relatives were involved -- one between a convicted felon and his brother, a rapist, and another between a prison inmate and his son, a burglar.
The third match linked a rape case suspect with the DNA profile of a lab employee. The suspect, it turned out, was the employee's brother. When investigators followed up, they found the case had been closed. "So there was no reason" to inform the employee that his brother had been identified through his DNA, Morrissey said.
"That's precisely the concern," said Stephen Mercer, a Rockville attorney specializing in DNA issues. "The trolling of rogue databases for information about family members is doubly invasive. It makes the persons in the databases -- many who are innocent -- genetic informants about their family members. And it extends that suspicion to their family members."
Morrissey said: "There is no inclusion of DNA that we don't have legally."
Other states and localities maintain "offline" DNA databanks of samples taken from victims or suspects never charged with a crime. Such databases, which also exist in New York, are a violation of the constitutional ban on unreasonable search and seizure, said Barry Scheck, a commissioner on New York state's Forensic Science Review Board. "If I get a sample from you and I don't tell you I want to put it in the database, that violates the scope of the Fourth Amendment," he said.
Prince George's County, for example, maintains a database with DNA profiles of both victims and suspects. Such local databases "have literally no oversight and regulation and yet are pushing the boundaries farther than anyone could imagine," said Patrick Kent, chief of the Maryland public defender's forensic division. "I do not think that victims of crime would be pleased to know that in addition to having been a victim, their DNA profile has been surreptitiously placed into a DNA database."
Prince George's County police spokeswoman Sharon Taylor said: "We manage the collection of evidence consistent with the law. It would be inappropriate for us to make any comment beyond that."
The British Model
Britain, with a database of 4.25 million profiles, has been doing familial searching for five years and has solved at least eight cases with it, said Tony Lake, chief constable of Lincolnshire and recent chairman of the DNA Strategy Board.
He cited as an example the "shoe rapist," who attacked at least six women, each time stealing their high heels. Twenty years later, his sister was arrested for driving under the influence and her DNA run against cold cases. That yielded a close match and led police to her brother. When he was arrested, his DNA was a perfect match and police found more than 100 stiletto heels hidden under a trap door.
In Britain, too, concerns have been raised about the use of familial searching at a time when the database is rapidly expanding to include people arrested for minor offenses and children as young as 10. In one case, a 15-year-old was arrested for refusing to get off a public bus and obstructing a police officer. His DNA was taken. Although the charges were thrown out, the police have refused to remove his DNA profile from the database.
A Rape Victim
In the Lake Charles area of Louisiana, authorities in a nine-county area have uploaded 1,500 DNA profiles taken from victims and suspects. The profiles are kept indefinitely, said George Schiro, DNA technical leader of the Acadiana Crime Lab in New Iberia. "There's nothing in state law that precludes us from doing it."
The lab has never run a familial search against its database, he said. But in 2005, in an effort to solve a string of rapes that had taken place in the little town of Ville Platte between 1987 and 2001, an investigator asked Schiro to review another rape case from 1999. Perhaps the suspect in that attack, the victim's ex-boyfriend, was the serial rapist, said Rudy Guillory, an investigator in the prosecutor's office, recalling what he told Schiro.
So Schiro pulled the files and compared the strings of numbers. What he saw ruled out the ex-boyfriend but implicated a relative of the victim. "Y'all need to check her family," Guillory recalled he said.
"It was really a stroke of luck," Schiro said.
The victim's brother was found in Shreveport, La., and gave a DNA sample. Normand Wilson, 53, is now serving a 35-year sentence.
Richard White, Wilson's attorney, said he feared such cases might make rape victims think twice before reporting an attack. "Would I like to have my rape solved, or do I run the risk of having my DNA profile searched in a way that might point the finger at a family member?" he said.
Wilson's sister echoed that thought. "I feel betrayed," she said. "They did everything behind my back."
Race and Justice
Familial searching of offender databases would be of no use "if close relatives didn't commit crimes," said Frederick Bieber, a medical geneticist at Brigham and Women's Hospital in Boston.
"For reasons we don't understand, there is often a familial clustering in crime," he said. "This could relate to organized crime families, to street gangs, or it could be dysfunctional family units." He pointed to a 1999 Department of Justice study that found 46 percent of prison inmates had at least one close relative who had been incarcerated.
Behind that statistic is another troubling set of numbers, highlighting an issue at the heart of the debate over familial searching: racial justice. The national database, which is made up mostly of state contributions, has a disproportionate number of DNA profiles from non-whites.
Stanford University law professor Henry T. Greely estimates that at least 40 percent of the FBI database is African American, though they make up only 13 percent of the U.S. population. That is because in an average year, more than 40 percent of people convicted of felonies in the United States are African American, he said.
If the national database were used for familial searching, he said, and assuming that on average each person whose profile in the database has five first-degree relatives, authorities would be "putting under surveillance" roughly a third of the African American population, compared with about 7.5 percent of the European American population, he said.
"I don't think anybody's going to be falsely convicted," he said. "It's the time, hassle and indignity of being interviewed by the police. How much is that worth? How much does that cost a person? I don't know, but it's not zero."
Staff researcher Magda Jean-Louis contributed to this report. ..more.. by Ellen Nakashima, Washington Post Staff Writer
