whose DNA is in CODIS

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INDIANAPOLIS — Indiana law enforcement is entering a brave new world where police can obtain and test any Hoosier's DNA profile against crime scene evidence, so long as a prosecutor can show the person probably committed a felony.
Republican Gov. Eric Holcomb on Friday signed into law Senate Enrolled Act 322 requiring police to take a cheek swab DNA sample from every person arrested for a felony, starting in 2018.
Currently, only individuals convicted of felonies have their DNA records permanently entered into a state police database.

State Sen. Erin Houchin, R-Salem, the sponsor of the new law, said she expects police will catch more criminals once they have a bigger pool of DNA records to check against blood, fluids and other detritus gathered at crime scenes.
She also refused to rule out someday expanding the DNA collection mandate to include those arrested for misdemeanors or traffic infractions.
"DNA profiling is an accurate, widely used tool that will help law enforcement solve crimes and convict those who are responsible," Houchin said.
The new law provides that an individual's DNA sample only will be added to the state's database after a judge affirms that police had probable cause to arrest the person, which means it's more likely than not the person committed the crime he or she is accused of.
That's a significantly lower standard than the guilt beyond a reasonable doubt required for conviction.

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If prosecutors are unable to convict, the law establishes a process for the person to request his or her DNA be expunged from the state database.
However, the Indiana Code also provides that if the record is not deleted as requested, that oversight does not invalidate any future arrest or conviction based on DNA evidence that shouldn't be in the database.

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[jameson245]

DNA
Hidden in Prison: 7 States Have Thousands of Inmates Not in DNA Databases
Mon, 07/17/2017 - 9:44am
3 Comments
by Seth Augenstein - Senior Science Writer - @SethAugenstein

Brandon Weathers sexually assaulted and impregnated a 13-year-old girl who had lived in his home as a foster child.
Convicted and admonished by the Nebraska criminal judge as “one of the worst I’ve seen,” Weathers was sentenced to 100 to 160 years in prison in 2016.
But upon starting his lengthy stay behind bars, Weathers refused to give a DNA sample to state authorities. A quick swab of the inside of his cheek would allow his genetic profile to be uploaded to the Combined DNA Index System, or CODIS. That would, in turn, determine whether he had committed other crimes that remained unsolved.
A year later, after some scrutiny, a judge issued an order allowing authorities to collect the genetic sample—by force. Weathers’ profile was put into the system—and it immediately hit four violent rapes in Omaha between 2002 and 2004, as the Nebraska prosecutors announced last month.
Weathers had previously served stints in prison in 1995 and burglary in 2000 before the alleged rapes. But his DNA was never collected before by prison authorities in the Cornhusker State.
The Nebraska serial rapist is one of thousands of American prisoners who have dodged DNA collection efforts by authorities. Most of these inmates are either awaiting execution in one of the states with the death penalty, or serving out the rest of their lives behind bars for some of the most heinous crimes imaginable.
Deeper Insights

The Forensic DNA Database Complete Solution: Creating a Productive, Efficient, and Quality Databasing Program

Forensic Magazine found that seven states hold prisoners whose DNA had not been collected, and who were not in CODIS. Most often, these states had no retroactivity conditions in their DNA laws, which were generally enacted in the 1990s and were never extended into the past to include criminals already locked up. But there are other cases where prisoners refused to give samples, or authorities simply didn’t get the testing done for logistical reasons. For others, there were simply collection delays.
Over more than two months, some states refused to provide information about the status of the DNA collection efforts within their prisons. Other states started collecting the samples after they were questioned about the status of their inmate population.
But experts agree: most of the long-term inmates who aren’t in CODIS probably have other crimes on their resume. And a significant number of unsolved mysteries could be cracked with a simple swab in a violent criminal’s cheek, the experts said.
“There’s definitely history with these people,” said Joseph Pollini, a retired NYPD cold case homicide squad commander, and professor at John Jay College of Criminal Justice. “They start committing crimes at an early age, and then of course they work their way up to serious crimes like homicides. Most of the time it’s not one crime they commit—it’s a whole set of crimes—and it’s not only within the state, it’s nationwide.”
Why the DNA collections haven’t already been completed over the last two decades is nothing short of injustice, others said.
“These problems show the lack of foresight and coordination that existed when many states first passed their DNA collection laws,” said Rockne Harmon, a retired Alameda County, California prosecutor who is one of the nation’s foremost DNA experts.
“The fact that it has not been a secret within those states, and that steps still have not been taken to fix either the laws or the collection protocols, reflects a reckless disregard for public safety,” the former prosecutor added.
The states are: Nevada, Nebraska, Montana, Georgia, Rhode Island, Tennessee and Delaware.
Nevada
Nevada is the state with the most inmates, and the most widespread program to get their inmates all included within DNA databases. Law enforcement and corrections officials told Forensic Magazine in April that 8,000 prisoners had avoided DNA collection up until that time.
But the state is pushing to collect the genetic samples of the inmates—especially the lifers and those awaiting their execution.
“Here’s a very likely group of people—1,500 people who are either on death row or spending the rest of their life behind bars for very violent acts,” said Steve Gresko, a senior criminalist at the Washoe County Sheriff’s Office, and also the state CODIS administrator for Nevada, in an April interview. “I’d be shocked if we didn’t solve a good number of cold cases when we got through these people.”
The Nevada DNA database began in 1989, with a state law providing for the collection of DNA in certain sex crimes. But none of the laboratories could immediately do the work. Gradually, facilities were upgraded, and the collection slowly expanded to include other offenses, according to experts. Homicide was added to DNA collection law in 1997, but all felony convictions were only added in 2007. A determination by the then-attorney general ruled that law enforcement should collect DNA only “prospectively,” Gresko explained.
Retroactive collection was never the letter of the law.
“This resulted in a significant number of violent criminals who were convicted in the 70s, 80s, and a good chunk of the 1990s, who we have not been able to collect until now,” said Gresko.
The question of the offenders already in custody—and what crimes they may have gotten away with before being caught—was raised last fall by the district attorney for Washoe County, the jurisdiction that includes the state’s third biggest city, Reno. The state’s top law enforcement directed corrections to start the collections shortly thereafter.
Nebraska
Nebraska, where convicted rapist Weathers awaits trial on the four additional crimes based on his DNA, had a problem with inmates’ refusal to willingly comply with the existing law.
The convicted criminals would object, and for years, no swabs were taken.
Forensic Magazine contacted state authorities including the attorney general’s office in April concerning retroactivity and prison collection of DNA.
On May 2, local newspaper The Omaha World-Herald wrote a story about the inmates defying the DNA collection efforts.
On May 12, the Nebraska Department of Correctional Services issued a formal written policy directing the forcible collection of DNA from the remaining inmates.
(Prison officials contend they began implementing the changes as early as February, before the written policy.)
“We changed our approach,” said Dawn-Renee Smith, a spokeswoman for the NDCS, explaining the written policy “helped significantly.”
The 78 total inmates who had been withholding genetic samples were whittled down to a group of 13 as of last month, authorities said. One of the samples taken by force was from Brandon Weathers—and four rapes from more than a decade earlier were apparently solved with a single genetic sample, as Nebraskan authorities announced in June.
Montana
Twelve inmates who were admitted prior to 1995 are still not in CODIS, according to Montana State Prison officials. The state’s law was never made retroactive, and corrections officials have not swabbed them, officials say.
Another 33 untested convicted criminals in the state were behind bars when authorities were asked about the status of the DNA collection. Amy Barton, a Department of Corrections spokeswoman, told Forensic Magazine in June those 33 inmates had not been included upon admission due to various extenuating circumstances. (Some had been admitted to the infirmary upon arrival and bypassed the normal intake process, for instance, she said.)
Since then, all 33 of those inmates have been swabbed and added to the DNA databases, said Sam Casey, the admissions manager at Montana State Prison.
“Every one of those people, we’ve collected DNA samples from them,” said Casey.
But the dozen—a group which includes infamous local murderers Leland Docken and Jerry Forsyth—are not subject to DNA collection by law, he added.
“It’s kind of a loophole,” Casey said.
Some nuances of the law complicate matters, Casey said. For instance, if a prisoner gets out but violates the terms of their release and are re-admitted, they still don’t have to give a DNA sample. But if they commit another crime, then they are collected, Casey added.
Montana, like most of the other states, also collects DNA of prisoners upon release, state officials added.
Georgia
Georgia did not immediately collect the DNA of inmates who were locked up prior to its 1996 statute mandating collection. But they have since returned to that population and added them to the local and national databases, according to officials.
“We did go back and get samples of the offenders imprisoned prior to the 1996 legislation,” said Joan Heath, a spokeswoman for the Georgia Department of Corrections.
But others were not on the rolls at the time, they explained.
As of a May count that Forensic Magazine requested, some 986 offenders were not collected. The majority (651) of those prisoners were in a diagnostic phase, a 10- to 14-day process each offender goes through upon intake into state custody, Heath said. But the other 335 could be assumed to be inmates sentenced as first offenders and conditional discharges under the state’s criminal statutes, Heath added.
Rhode Island
Rhode Island first instituted DNA collection in its corrections system in 1998 for capital offenses, in 2001 for crimes of violence and 2004 for all felonies. (State law added arrestees of crimes of violence in 2015.)
Prisoners convicted of crimes prior to those dates, and who are still in custody, are not part of any databases, according to Cara Lupino, the supervisor of forensic biology and DNA at the Rhode Island Department of Health, which administers genetic collection.
But state officials did not answer how many inmates that meant currently behind bars, without a DNA sample on file.
Rhode Island law, like the one in Nevada, was never explicitly worded to disallow collection of already-incarcerated inmates. But it wasn't worded to mandate or even encourage the collection either, Lupino told Forensic Magazine in May.
In Nevada, the solution was to review the legislative minutes and notes taken during the passage of the law in 1989, to discern the legislators’ intent at the time.
No action has been taken in Rhode Island to get the retroactive samples, Lupino added.
“The other consideration would be what the influx of new samples would be—obviously affecting our turnaround time,” said Lupino.
Tennessee
Tennessee Department of Corrections officials confirmed that all felons convicted prior to July 1, 1998 who are still behind bars have not had their DNA collected.
But how many inmates who are in state custody—but not on the DNA rolls—in Tennessee remains unclear.
The DOC officials took two months to answer whether the retroactivity situation applied to the Volunteer State. In that time, the Tennessee Bureau of Investigation pointed to the applicable state statute guiding policy. The DOC declined to answer further questions.
The state corrections population hovers consistently above 20,000, according to annual reports.
Delaware
Officials in Delaware refused to answer about their prison population, or the DNA collection efforts behind bars. A spokesman for the attorney general’s office, Carl Kanefsky, did not respond to more than two months of emails and phone messages from Forensic Magazine.
The state’s CODIS administrator, A. Robyn Quinn, was “not interested” in speaking about the topic with Forensic Magazine, a secretary told a reporter.
But an analysis of the state statute indicates that only persons convicted of sexual offenses in Delaware are subject to DNA collection. A bill pending in the legislature intends to mandate DNA collection for arrestees—as well as collection from all prison inmates convicted of violent felonies. That bill was tabled in a legislative committee in March, however.
No estimates for the number of inmates who remain out of CODIS in Delaware were obtainable by Forensic Magazine.
Some Progress—and Some ‘Reckless Disregard’
Some other states have recognized the population of untested inmates sitting in their prisons, and have completed their DNA collections of inmates. For instance, West Virginia and Wisconsin have collected inmates who were incarcerated before their DNA laws were passed.
West Virginia law did not originally allow for retroactive sampling of inmates. But a series of court orders, one of which was sought by state corrections officials, allowed for DNA collection for all inmates locked away before the legislation was passed, according to Lawrence Messina, a spokesman for the West Virginia Department of Military Affairs and Public Safety.
Wisconsin did not allow for retroactive collection of inmates who were convicted of a crime prior to the DNA legislation. But the state passed an additional law in 2013 called Act 20 which required a DNA sample for anyone who was in prison on or after Jan. 1, 2000 for felonies, among other conditions, according to John Koremenos, a spokesman for the state’s Department of Justice. The people who have since been released have been pursued by the Department of Corrections. Of the 20,390 names who had outstanding DNA sample obligations, authorities have cleared 17,450 for various reasons, according to corrections spokesman Tristan Cook.
“(Cleared) means DOC received confirmation from the Wisconsin Department of Justice that the DNA sample has been collected; the individual has been confirmed deported or deceased; or the individual does not have a qualifying conviction, had their qualifying conviction reduced to a non-qualifying conviction or had their conviction overturned or expunged,” Cook told Forensic Magazine in May.
Experts told Forensic Magazine that the so-called “collection gap” needs to be corrected—perhaps by the federal authorities.
Harmon, the California prosecutor, said the states letting the prisoners remain behind bars without compelling them to submit DNA is a major loss for the American justice system.
Killers can keep killing, rapists can keep raping, he said. And their past crimes could potentially go forever unsolved.
“Not having a sample from an eligible offender can allow him to escape detection and continue to rape and kill,” said Harmon. “Only national oversight can correct the problem.”
Pollini, the former NYPD detective, sees the positives heading forward, if states get their swabs ready and line up their prisoners for collection.
“As far as putting DNA into the system, there’s nothing better,” said Pollini.
“It only benefits the system,” he added. “We have nothing to lose, and all to gain.”

[jameson245]

Woman charged for refusing to give DNA sample
Posted Thursday, March 8, 2012 10:03 am
By Andrew Amelinckx, Berkshire Eagle Staff
Thursday March 8, 2012
PITTSFIELD -- The Massachusetts State Police are moving forward with criminal charges against a Pittsfield woman who is refusing to give a sample of her DNA to the state database.
The police say the woman has been in violation of the law for 61/2 years. She says she was never told about the law.
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Mass. State Police press case to collect Berkshire woman's DNA
The state police have filed a criminal charge of failure to provide a DNA sample against the woman after Clerk Magistrate Christopher N. Speranzo found there was probable cause to charge her. The decision was made following a probable cause hearing in Central Berkshire District Court last month.
She is scheduled to be arraigned on the charge March 20.
"I'm nervous I'm frustrated," said the 42-year-old wo man who agreed to speak to The Eagle provided her name not be published.
She said she has continued to be in contact with the Amer ican Civil Liberties Union of Massachusetts as well as with Pittsfield attorney John A. Bernardo.
The woman pleaded guilty to a single count of assault and battery with a dangerous weapon in Central Berkshire District Court in June 2004.
She said she was defending herself against an abusive boyfriend. The woman served a year of probation without incident, ending the case.
The woman said she was never told by anyone in the court system that if she pleaded guilty, she would be required to provide a sample of her DNA to the state. Similarly, there was nothing in any of her original court documents concerning the requirement.
Since that time, the woman says she has stayed out of trouble, gone to college and raised a family.
It wasn't until this past November that she was made aware that she had allegedly been in violation of the law dating back to 2005.
Before November, the wo man said the state had never sought to collect her DNA.
On the books since February 2004, the law requires anyone convicted of a felony to submit a DNA sample to the Combined DNA Index System, or CODIS. The samples are collected and uploaded to both the state and federal DNA index systems, according to a state report.
The current penalty for not complying is up to six months in jail and/or a $1,000 fine.
Law enforcement officials believe DNA databases are vital to crime investigation by helping to identify criminals accurately and clearing previously unsolved cases. Others, including the ACLU, believe DNA is sensitive information that can reveal things about the offender, as well as about blood relatives.
On Jan. 25 Bernardo, filed a motion on behalf of the woman to revise and revoke the 2004 sentence, which would allow the judge to simply add to the probation sentence "DNA sample not required," ending the matter.
Normally, this kind of motion must be filed within 60 days of the sentencing.
Bernardo argued that the circumstances of the case had so dramatically changed that it warranted the motion being filed, while Berkshire Assis tant District Attorney Jo seph Zlatnik argued that too much time had elapsed.
District Court Judge Rita S. Koenigs denied the motion.
Detective Lt. Mary M. Sennott, of the Massachu setts State Police CODIS Collection and Investigative Unit, was present at the hearing and tried to speak with the woman in order "to see if she would submit DNA as required by law," according to a police probable cause report.
Sennott said she was prevented from doing this by Bernardo, who allegedly told her his client would not be giving the police her DNA, the report indicated.

[jameson245]

Over 20 years, Nebraska prison officials let 73 inmates defy law by not submitting DNA samples
By Todd Cooper / / World-Herald staff writer May 2, 2017 0

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For the past 20 years, Nebraska corrections officials have allowed more than 70 prisoners to defy state law — and potentially delay justice — by refusing to submit a DNA sample that could help authorities clear unsolved crimes.
The way the convicted felons have been able to get around submitting their DNA sample? By just saying no.
Under state law — and corresponding judges’ orders — all convicted felons are required to submit a DNA sample.

But if a prisoner says “no,” Nebraska prison administrators have, over the past two decades, done little to force DNA collection, other than writing up the inmates or attempting to extend their sentences.
Prison officials haven’t held the inmates down and swabbed the inside of their cheek. They haven’t taken the inmates in front of a judge to try to force the DNA collection. They haven’t sought obstruction-of-justice charges against the inmates for refusing to comply with the law.
Instead, they have moved on to the next inmate in the hopes that he says yes.
As a result, the resisting prisoners’ DNA doesn’t enter a database that could connect them to crimes across the state or country.
“We have a state law — and a court order in each case — that says convicted felons shall provide a DNA sample,” Douglas County Attorney Don Kleine said. “I don’t know how much more clear that can be. For the state to not collect it ... it’s tremendously frustrating.”
Corrections officials last week did not directly address why they haven’t forced DNA collections. Their reluctance appears to be rooted in a 1997 Nebraska attorney general’s opinion that said state lawmakers hadn’t authorized forced DNA collection.
Any reluctance is misguided, Kleine said. A subsequent Nebraska Supreme Court ruling — released two months after the 1997 opinion issued by then-Attorney General Don Stenberg — upheld Omaha police’s use of force to extract blood from a serial rapist who refused to give his DNA.
Despite that ruling, the state hasn’t sought to forcibly obtain any inmate’s DNA.
Seventy-three Nebraska prisoners — from gunmen to sex offenders — have refused to submit their DNA samples.
In fact, until recently, Nebraska prison staff gave incoming inmates a form asking them if they would submit a DNA sample through a blood draw or a cheek swab. On the form, inmates had a third choice — a box that they could check that indicated: I don’t want to give my DNA.
The revelation of the DNA refusals comes as state senators have contemplated reopening a committee to investigate chronic problems that have plagued Nebraska prisons — overcrowding, understaffing, inmate uprisings. That committee dominated headlines in 2014 after a World-Herald investigation revealed that prison officials had ignored two Nebraska Supreme Court rulings and set early release dates for more than 750 prisoners, including gun felons, habitual criminals and child rapists.
The DNA issue shares patterns with the early-release debacle.
It involves the state’s most violent felons — prisoners who, authorities believe, might have something to hide.
And, similar to the early-release scandal, it has been marked by inaction in the face of a Nebraska Supreme Court ruling.
That has led prosecutors and crime victims to question who is in control — inmates or the people who guard them.
A state law passed in 1997 says that sex offenders “shall” submit their DNA samples — and shall pay a fee to have their DNA collected. Later in 1997, the Nebraska Supreme Court upheld law enforcement’s use of force to collect a DNA sample from the Omaha serial rapist.
Then, in 2010, the DNA collection act was expanded to include all convicted felons — and specified that the DNA samples are supposed to be collected upon the inmates’ entrance into prison. The statute further says that no inmate shall leave prison “unless and until a DNA sample has been collected.”
Corrections spokeswoman Dawn-Renee Smith — answering questions posed to Corrections Director Scott Frakes — provided a written statement: “The Nebraska Department of Correctional Services is committed to collecting DNA samples pursuant to law.”
Smith did not directly address why Corrections hasn’t forced DNA collections over the past 20 years.
Corrections officials, she said, order inmates “to submit to a swab or blood draw.” Inmates who refuse “may receive multiple misconduct reports ... may be subject to discipline and loss of privileges,” Smith said. They also may lose their good-time credit for behaving — a day off for every day served.
However, any pressure on the inmates hasn’t worked to obtain the DNA of those 73 prisoners. In turn, Kleine said, justice undoubtedly has been thwarted for victims reeling from rapes, assaults, shootings or other unsolved crimes.
Kleine and Omaha Police Chief Todd Schmaderer have urged state officials to take prisoners’ DNA with reasonable force, if need be. Such a process — known as collecting a buccal swab — would amount to using a Q-tip to rub the inside of a prisoner’s cheek.
Katherine “Kadi” Knight can attest to the power of that simple process.
In 2013, Anthony Vaughn was on probation for burglarizing the home of a woman who served as his son’s Bible study teacher. Vaughn had cast the burglary as his desperate attempt to get money for drugs.
Authorities soon would come to suspect he had a more sinister motive.
As part of his probation, he was required to submit to a cheek swab. The Nebraska State Patrol inserted his DNA profile into a database and connected Vaughn to the sexual assaults of Knight and four other Omaha women from 1999 to 2009.
Authorities also concluded that the burglary that landed him on probation was more than likely his attempt to victimize a sixth woman, the Bible study teacher.
Vaughn, 45, is serving up to 70 years in prison.
For Knight, who was raped in 2005, the collection of Vaughn’s DNA ended eight years of angst.
“It’s awful,” she said. “You have no idea — he could be standing next to you, waiting in line at the grocery store. He could still be watching you. It took years to get myself to stop thinking that way. It’s no way to live.”
Knight calls it “unconscionable” that state prison officials have allowed inmates to simply say no.
She wonders how many prisoners have gotten out of prison without giving their DNA.
“Someone needs to ask (prison officials), ‘How would you feel if this was your daughter or your sister or your loved one living their lives scared to death?’ ” she said. “They haven’t collected it because of what? The inmates said, ‘I don’t wanna?’ ”
Probation officers — such as the ones in Vaughn’s case — and parole officers are much more likely to get compliance. The reason: They can attempt to revoke probation or parole if prisoners refuse to give their DNA.
But step inside Nebraska prisons, and officials are reluctant to force DNA collections from inmates.
The reasoning is threefold: 1) legal opinions given to them by the State Attorney General’s Office; 2) state senators’ comments while passing the DNA collection law; and 3) a ruling that disallowed their use of extra prison time to gain compliance.
Nebraska attorney general staff have long advised Corrections that they cannot take DNA by force.
Soon after the DNA collection law was passed in 1997, then-Nebraska Corrections Director Harold Clarke asked the Attorney General’s Office: Can we force inmates to submit their DNA?
In an Oct. 10, 1997, memo, Stenberg and Assistant Attorney General Linda Willard, now retired, traced the legislative history of the DNA collection act and concluded: “It is our determination that the Legislature has not authorized the use of physical force in obtaining these DNA samples.”
Stenberg and Willard noted that state senators had modeled Nebraska’s DNA collection law after Pennsylvania’s — with one notable exception. Senators “removed” a portion of the law’s wording that “permitted the use of reasonable force” by law enforcement or Corrections. Then-Sen. Kermit Brashear of Omaha, a former chairman of the Judiciary Committee, said at the time that the committee removed the language so “permission to use reasonable force no longer exists.”
“If the subject (prisoner) refuses and will not permit,” Brashear said, “then Corrections and law enforcement personnel will have to proceed otherwise.”
For more than a dozen years, “proceed otherwise” meant do little. Meanwhile, other states, such as Pennsylvania, developed a several-step process that culminated in forced collection, if necessary. Still others, such as Massachusetts, made it a felony if a convict refused.
Nebraska took a different route.
In 2010, the Nebraska Legislature expanded the collection practices to all convicted felons — past or present. The law included a penalty for not providing DNA: The convict would forfeit his good time. In most cases, that meant he would double his sentence.
It didn’t take long for inmates to challenge it.
In 2011, George Shepard, a twice-convicted sex offender from Omaha, refused when Corrections officials asked him to submit a DNA sample.
Shepard had been convicted of sexually assaulting a 3-year-old girl in his Elkhorn trailer in 1990.
When Shepard refused to give his DNA, Corrections informed him that he would have to serve all of his 50-year sentence. But if he gave the DNA, he would get the typical day off for every day served — and his sentence would be 25 years.
Shepard sued — claiming the loss of 25 years of good-behavior credit was an after-the-fact sanction and, thus, was unconstitutional.
Shepard won, in part. The high court said Corrections could not penalize Shepard with additional prison time because that penalty was added in 2010 and wasn’t in existence when Shepard was sentenced. In effect, Corrections can extend sentences only of those inmates who entered prison after the 2010 law and have refused to give their DNA.
But the high court did not rule out Corrections collecting Shepard’s DNA. “Requiring a convicted person to submit a DNA sample does not violate” the U.S. Constitution, the ruling said.
In 2015, Shepard left prison without giving his DNA. Court filings indicate he currently resides at the Lincoln Regional Center, though it’s not clear for how long.
His case wasn’t the only time the Nebraska Supreme Court asserted the state’s right to obtain convicted felons’ DNA.

In 1994, Omaha resident Thomas Freeman refused an order requiring him to provide blood or saliva samples. So, acting on a judge’s order, authorities physically held him down, stuck a needle in his arm and extracted his blood.
Freeman appealed — arguing that police violated his rights.
In 1997, the Nebraska Supreme Court rejected his appeal, ruling that, under state law, authorities had every right to take a DNA sample.
It turns out that Freeman had a reason to refuse. DNA tests showed that Freeman had raped eight women in Omaha in 1993. He now is serving a 100-year sentence.
Kleine, who helped prosecute Freeman, said the case proves the point: Guilty parties, especially prisoners, have motive to hide their DNA.
Kleine said he’s baffled as to why the Nebraska Attorney General’s Office hasn’t adjusted its stance since the Freeman ruling. The 1997 ruling upholding the use of force came out two months after the attorney general’s opinion that force can’t be used.
“If the (Nebraska) Supreme Court said you can hold somebody down and take their blood,” Kleine said, “certainly you can hold them down and take a cheek swab.”
Now, Kleine wonders how many of the refusing prisoners have been released without giving their DNA. Smith, the Corrections spokeswoman, said one inmate refused, lost all of his good-time credit, finished his sentence and has been released “to a federal detainer.” It wasn’t clear whether that federal case was criminal or immigration-related.
Corrections’ account isn’t complete. As mentioned, Shepard also left prison without giving his DNA.
It is not clear if others have. Smith would not identify any of the prisoners who have refused, saying it’s considered part of the inmates’ confidential file.
Kleine became aware of the DNA stalemate when he inquired about collection efforts for a sex offender suspected in other crimes.
Waiting on that DNA sample, Kleine called the Nebraska State Patrol, which oversees the statewide DNA bank. Patrol officials told Kleine they had received no DNA from the sex offender.
Kleine contacted state prison officials. They told him that they couldn’t collect the DNA for a simple reason: The inmate had refused.
So Kleine and Schmaderer last year contacted Nebraska Attorney General Doug Peterson — urging Peterson to advise the Nebraska Department of Correctional Services to follow the law.
Peterson, who didn’t take office until 2015, has since told the two he is working on the issue, according to Kleine. The attorney general reportedly advised Corrections to stop providing incoming inmates with the form that allows them to check a box to opt out of a DNA test — something Corrections used for years but now does not.
A spokeswoman for Peterson said the office was busy and couldn’t provide comment.
To be sure, the estimated 73 inmates who have refused represent a minority.
State officials have collected 37,000 samples from prisoners, parolees and probationers over the past 20 years. And those samples have helped law enforcement agencies solve 408 cases, according to data provided to a national DNA database.
However, Kleine argues, there’s little excuse for state prison officials to not have 100 percent compliance. He noted that DNA doesn’t just connect a person to a crime; it can serve to free others. Nowhere was that more evident than in the Beatrice Six case, in which a DNA test of an Oklahoma man cleared six people who were falsely convicted of an elderly woman’s murder.
“DNA is such a tremendous forensic tool — it not only implicates, it can exonerate,” he said. “It’s unbelievably powerful.”
But only if it’s collected, Kleine said.
Corrections’ practice of extending the sentences of recently incarcerated inmates, Kleine said, doesn’t accomplish the law’s goal: solving crimes through DNA collection. He noted that some of the affected inmates already are serving life sentences, or close to it — so they have little incentive to comply.
He questions why Corrections would wait — and make victims wait.
“The law doesn’t allow (prisoners) to hide their DNA for years before we get a sample,” Kleine said. “When Corrections says, ‘We’re not going to make you submit,’ it’s letting the inmates control the system. That doesn’t make any sense to me.”
Nor does it to Knight, the 2005 rape survivor.
“They have the chance to bring peace of mind to dozens of victims,” she said. “It’s baffling that this isn’t being done just because the inmates are refusing. It makes you wonder who exactly is running the show.”
World-Herald staff writers Alia Conley and Jeffrey Robb contributed to this report.

[jameson245]

NIJ Journal No. 264
NIJ Journal 264: Director's Message
Solving Missing Persons Cases
Debating DNA Collection
Currently selected
Increasing Sexual Assault Prosecution Rates
Mobile Laboratories Are Changing the Way We Respond to Crisis
A Public Health Approach to Reduce Shootings and Killings
The Future of Terrorism



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NIJ Helps States to Process DNA Samples
Crime laboratories throughout the nation continue to face great increases in the number of requests for DNA testing in criminal cases. Congress increased the National Institute of Justice's funding to expand lab capacity and reduce backlogs to $56.3 million in fiscal 2008. The funding enabled crime labs to work on more than 30,000 criminal cases. The program helps labs to improve their capacity. Labs can update instruments, install robotic systems that speed processing and train forensic scientists.
Learn more...
The Growth of DNA Collection From Convicted Criminals
When Congress passed the DNA Analysis Backlog Elimination Act of 2000, it approved a new program of federal aid to states to help them clear their backlogs of DNA samples. The law also approved the collection, analysis and indexing of DNA samples from people convicted of federal crimes.
Learn more...

Debating DNA Collection
by Sarah B. Berson
DNA helps law enforcement investigate and prosecute crime, but the new trend of preconviction DNA collection raises serious Fourth Amendment issues for the criminal justice community.

©iStockPhoto.com (see reuse policy).
Policymakers are increasingly coming to grips with legal issues related to taking DNA samples from people who have not been convicted of crimes.
The practice of taking DNA samples from convicted criminals is now largely uncontroversial. The courts have routinely upheld laws that authorize DNA collection from both current and former convicts, and the resulting databases of DNA have become powerful tools to analyze forensic evidence collected from crime scenes. The databases help to clear innocent suspects and redirect law enforcement officials away from unproductive investigations.[1] They also help to convict guilty criminals and clear the wrongfully convicted.
A trend that is causing significant debate is gathering DNA samples from people who are arrested but not convicted. About 20 states and the federal government have passed legislation that requires DNA collection upon arrest. This legislation has raised concerns that crime laboratories may be unable to manage an influx of samples from a new source and that preconviction DNA collection may violate Fourth Amendment privacy guarantees.
Some people worry that collecting DNA creates the potential for abuse of genetic information stored in databases. Others point out that the federal and state privacy laws and penalties that apply to crime labs are stringent — far more stringent than the rules governing private entities that collect blood and saliva for medical or insurance purposes. Additionally, crime labs process only the DNA that applies to human identification. They do not process DNA that identifies predisposition to diseases. Indeed, most crime labs are incapable of doing that kind of DNA processing.
Proponents of laws to collect DNA from arrested persons say these laws are no different from the long-standing, routine practice of taking fingerprints of arrested suspects. Law enforcement officers run fingerprints against national databases to confirm a suspect's identity and learn of any outstanding warrants against the person. Fingerprints remain on file unless a person makes a formal request to remove them. Proponents believe that taking DNA samples should be thought of in the same way and that the process will yield similar benefits.
See "The Growth of DNA Collection From Convicted Criminals."
Preconviction DNA Sample Collection
The DNA Fingerprint Act of 2005 requires that, beginning January 1, 2009, any adult arrested for a federal crime provide a DNA sample.[2] The law also mandates DNA collection from persons detained under the authority of the United States who are not U.S. citizens or are not lawfully in the country.
Even before passage of the act, five states — California, Louisiana, Minnesota, Texas and Virginia — had statutes that mandated collecting DNA from people arrested for various qualifying offenses. Although some states limit preconviction DNA collection to violent offenses or sex crimes, other states include all felonies, and some extend the requirement to misdemeanors as well. States' legislation requiring preconviction
DNA collection varies. Variations include the types of crimes for which samples are collected, applicability of the law to juveniles and procedures for deleting profiles. Some state laws have faced Fourth Amendment challenges in court.
Expunging Profiles
After law enforcement officers collect a DNA sample, laboratory technicians translate the sample into a DNA profile (a numerical sequence). It is that profile, and not the genetic material itself, that enters the DNA database. The information contained in the DNA profile does not predict or identify physical characteristics, race, medical disorders or genetic disorders. The profile remains in the database if a court convicts the person. But what happens if the person is not convicted? That depends on the jurisdiction.
All states with laws allowing preconviction DNA sampling provide a way to expunge profiles if an arrest does not result in a conviction. Nine states automatically expunge a DNA profile if there is no conviction. However, many states require the person to request that their profile be expunged.[3] Louisiana, for instance, requires the person to provide a written request with a court order to expunge the profile.[4] Federal law similarly requires the person to ask that the profile be expunged. The person must provide a certified copy of the "final court order establishing that the charge was dismissed, that it resulted in an acquittal or that no charge was filed within the applicable time period" for each charge.[5] Most states require a written request and certified court order to purge a DNA profile if a conviction is reversed on appeal and the case dismissed.
Privacy and Penalties
Federal law imposes a fine of $250,000 or a year's imprisonment for each instance of wrongdoing involving unauthorized use or disclosure of DNA data collected in an offender or arrestee database. States similarly have penalties, and these vary widely in both fines imposed and imprisonment. State laws also vary with regard to how samples may be used beyond law enforcement and quality control purposes. Many states explicitly provide for other uses, such as identification of missing persons, identification of remains from natural or mass disasters, and statistical research. Several states, including some states with statutes authorizing DNA sampling from arrestees (e.g., South Dakota, Texas and Vermont), prohibit the use of samples for predicting or identifying medical or genetic disorders.[6]
Some concerns about collecting preconviction DNA samples do not relate directly to the potential misuse of collected information or genetic privacy. Rather, they focus on Fourth Amendment search and seizure issues. The Fourth Amendment guarantees "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."[7] Usually, a "search" is interpreted to require probable cause and a warrant or, at minimum, individualized suspicion.[8] Courts have viewed collecting and analyzing DNA as a "search" in Fourth Amendment challenges to DNA databases.[9] However, the courts have not definitively settled the legal status of preconviction DNA sampling.
Two states — Virginia and Minnesota — have seen challenges to their preconviction DNA collection statutes along this line of argument. The courts have come down on opposite sides of the issue. The Virginia case, Anderson v. Commonwealth, involved a DNA sample taken from Angel Anderson when he was arrested for rape in 2001.[10] His sample matched another in the state database — one from the crime scene of an unsolved 1991 rape. Anderson was subsequently convicted of the earlier offense. He appealed his conviction on Fourth Amendment grounds, arguing that taking the sample constituted a search that was not based on reasonable suspicion, as it was unrelated to the crime for which he had been arrested.
The court disagreed with Anderson. It ruled that Virginia's law accorded with the Fourth Amendment under the "established principle that a search incident to arrest is permissible within the Fourth Amendment and that such a search may include an attempt to identify the arrestee."[11] The court cited a 1992 Fourth Circuit case that held the suspect's identity "is relevant not only to solving the crime for which the suspect is arrested but also for maintaining a permanent record to solve other past and future crimes."[12]
A month after the Virginia decision, Minnesota's Court of Appeals held that Minnesota's DNA statute violated the Fourth Amendment in In re Welfare of C.T.L. When C.T.L. was arrested, the police had a judicial determination that probable cause supported criminal charges but did not have a similar determination that probable cause supported issuing a search warrant. C.T.L. refused to give police a DNA sample after being charged with assault and aiding and abetting robbery.[13] The court agreed with C.T.L.'s argument that the collection would violate his Fourth Amendment rights and held that in the absence of a search warrant, a criminal charge alone was insufficient to permit taking a DNA sample.[14]
With regard to the federal law, in the first case of its kind, a federal judge in California ruled that it was constitutional to take DNA samples at the time of arrest for a felony and that the federal law did not violate the Fourth Amendment.[15] The case involved a man accused of possessing child pornography on his computer. The judge wrote that the invasive nature of obtaining a DNA sample was minimal and likened it "to taking fingerprints as part of the routine booking process upon arrest."[16] He further noted that "an arrestee's identity obviously becomes a matter of legitimate state interest" and acknowledged some of the common concerns about preconviction DNA testing: "While fears of a 'Big Brother" style government harassing or persecuting individuals based on genetic characteristics is always theoretically possible, that is not the purpose of the amendments before the court, nor is it at all likely."[17]
The Constitution protects citizens against unreasonable searches. The balance of reasonableness depends on weighing the extent to which an individual's privacy is violated (that is, the degree of intrusion) against the state's interest in fulfilling the search.
Both American and European courts are grappling with the issue. On December 4, 2008, the Grand Chamber of the European Court of Human Rights ruled against the United Kingdom in a privacy case. "In conclusion, the Court finds that the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences, as applied in the case of the present applicants, fails to strike a fair balance between the competing public and private interests and that the respondent State has overstepped any acceptable margin of appreciation in this regard. Accordingly, the retention at issue constitutes a disproportionate interference with the applicants' right to respect for private life and cannot be regarded as necessary in a democratic society."[18]
DNA is undoubtedly valuable in identifying criminals and solving crimes. The use of DNA to clear innocent people and convict guilty ones has produced remarkable results. But the issue of balancing the costs and benefits of preconviction DNA collection remains open to debate.
See "NIJ Helps States to Process DNA Samples."
NIJ Journal No. 264, November 2009
NCJ 228383

[jameson245]

FORENSIC DNA COLLECTION: A CITIZEN’S GUIDE TO YOUR RIGHTS

SCENARIOS AND RESPONSES


1. DNA Dragnets

Scenario

You are between the ages of 18 and 35 and live in a city, town or neighborhood where a homicide has occurred. A police officer comes to your home and requests a cheek swab of your saliva so that a DNA profile can be obtained. You are told that the purpose of obtaining your DNA is to exclude you as a suspect. This is what is known as a DNA dragnet to find the perpetrator of a crime. You are told that you have the right to refuse but if you do, the police will treat you as a potential suspect. You are not told anything about what will happen to your DNA profile and the biological sample from which it is drawn after the case is closed.

Legal Rights and Responses

You have the right to refuse to allow police to conduct a cheek swab. It is legal for police to ask for a voluntary DNA sample but they must be careful about how they phrase the request. A Fourth Amendment violation can occur if police mislead an individual; for example, by saying he or she has a duty to provide a sample or saying that the person will be treated as a suspect for refusing. The courts have repeatedly determined that the taking of DNA constitutes a “search” under the Fourth Amendment. It is also improper for police to threaten to report names to the press of those refusing to provide a sample.

DNA dragnets are not always truly “voluntary” and may feel extremely coercive. People are often afraid to say no to police out of fear that their refusal may cast suspicion on them. But you have the right to say no and you should exercise that right. If you agree to provide a DNA sample, you should assume the police will keep it forever and will include your profile in the offender database. Because you have given the sample voluntarily, you may not be eligible for your state’s procedure to have the sample expunged. If you have any concerns about giving a sample voluntarily, you should tell the police that you wish to talk with a lawyer about the consequences of providing a sample before you decide whether to give one. Although the police may be suspicious of your refusal, they cannot obtain a warrant based only on that refusal.






While law enforcement officials may promise to destroy samples after testing, there is no way to determine if the evidence has in fact been destroyed. After a DNA dragnet of over 1,000 men in Louisiana failed to find a match to the suspect’s genetic profile, law enforcement officers entered the local men’s DNA profiles into the state’s criminal database. Some individuals have sued, usually without success, to have their DNA profiles removed and biological samples destroyed.

2. Arrestee DNA Collection

Scenario

You are arrested and detained but not charged or convicted of any crime. Can the police obtain a profile of your DNA? Can they upload the profile to the national forensic DNA database, CODIS (Combined DNA Index System), operated by the FBI? Are you obligated to give the police a biological sample (blood or saliva)?

Legal Rights and Responses

If federal agents detain and arrest you, they have the authority to take DNA from you and to immediately upload it to CODIS. If local authorities arrest you, depending on the laws in your state, you may be obligated to give a DNA sample. The DNA Fingerprint Act of 2005 allows states to upload profiles to CODIS. Eleven states (Alaska, Arizona, California, Kansas, Louisiana, Minnesota, New Mexico, North Dakota, Tennessee, Texas and Virginia) currently allow for involuntary DNA collection from individuals merely arrested or suspected of a crime. You should familiarize yourself with the laws in your state and if they do not provide for involuntary collection, you should consult with an attorney before submitting to a DNA test.

Usually the police need a search warrant to collect your DNA unless you have been convicted of a crime. Under federal law, the government requires people arrested for certain crimes to provide DNA samples. These laws probably violate the Fourth Amendment to the U.S. Constitution which guarantees “the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.” The conduct of a “search” generally requires probable cause and a judicial warrant, or at least individualized suspicion. However, the courts have yet to decide this question. If the police want to take a sample of your DNA, you should make it clear that you are not voluntarily providing a sample, recognizing that they may take it anyway.

In April 2008, the U.S. Department of Justice proposed a rule for compelled DNA sample collection from arrestees and detainees under the DNA Fingerprint Act of 2005 and the Adam Walsh Child Protection and Safety Act of 2006. The rule directs federal agencies that arrest or detain individuals to obtain DNA samples if the agency also takes fingerprints from such persons and specifies procedures for collection. The rule does not indicate whether an arrestee/detainee will be advised of their right to legal counsel before a DNA sample is taken, nor does it provide for an appropriate period of delay to accommodate judicial review if counsel for the arrestee wishes to seek a determination by a court of the legality of the DNA sample collection before it occurs. Substantial questions surround the constitutionality of compelled DNA seizures from people who have not been convicted of crimes and the issue has yet to be definitively determined by the courts. In addition, the rule proposes to sanction the use of physical force and compulsion against unconvicted and presumably innocent individuals. Finally, the rule allows federal agencies to contract with private entities to carry out the collection of DNA samples.






3. Familial Searching of DNA

Scenario

A detective visits your home and explains that the DNA profile of a second cousin of yours was a close, but not identical, match with the DNA profile obtained from biological evidence left at a crime scene. The detective explains that the perpetrator of the crime is very likely a member of your family and s/he would like to ask you questions about your family. In addition, the detective requests a cheek saliva swab from you so that you can be eliminated as a suspect in this crime.

Legal Rights and Responses

You do not have to talk to the police or let them into your home. You can tell them that you want to consult with an attorney before deciding whether to speak with them (and then do so). You can also tell them that you simply do not wish to talk to the police at all, as is your right under the Fifth Amendment against self-incrimination. You do not need to provide a DNA sample unless they have a search warrant that requires it.

In 2006, laws that limited familial searching were loosened and police are increasingly engaging in familial or “low stringency” DNA searches. DNA profiles in government forensic DNA databases are used to identify parents, children, siblings and relatives whose profiles are not in the databases, thus the term familial searching. Because DNA is inherited, family members share a common gene pool and are likely to have similar profiles. Fully cognizant of this, governments permit DNA databases to be searched for near matches between DNA profiles contained in databases and profiles collected at crime scenes. In this way, governments are expanding genetic surveillance beyond those individuals whose DNA is contained in databases to wholly innocent family members. This means that if you share genes with someone convicted or merely arrested for a crime, your genetic information is also in the government’s database, even if your relative is never convicted of a crime.

The realities of the criminal justice system ensure that communities of color will be disproportionately affected by familial searching. From 1994 to 2004, African-Americans were five times more likely than whites to be incarcerated, and in 2000, African-Americans and Latinos comprised 63% of incarcerated adults even though collectively they represented only 25% of the U.S. population. This reality is perpetuated by racial profiling, discriminatory sentencing and general racial bias in the criminal justice system. Consequently, many racial and ethnic minorities who have never committed or even been accused of committing crimes are increasingly being trapped in a genetic surveillance web of “guilt” by familial association.


4. Non-Violent Crime Convictions and DNA Sampling

Scenario

You have been convicted of a non-violent crime and placed on probation. You have never served jail time. The police department requests a blood sample so they can file a profile of your DNA.

Legal Rights and Responses

Most courts have held that if a statute authorizes the government to collect DNA from a person convicted of a felony then the police may do so, although almost all of these cases involve people convicted of violent felonies. You should talk to a lawyer about whether the law authorizes them to take a sample based on your specific conviction and whether that law is constitutional.



There may be an issue regarding the terms of probation – a boiler plate condition might be to comply with this sort of request. Most states collect DNA samples from all felons. Many states also collect DNA samples from individuals who have committed certain kinds of misdemeanors.

5. Retroactive DNA Profiling

Scenario

You have served two years in jail for failure to comply with a court order to pay child support. Before your release, the police want to place your DNA profile on CODIS, the national forensic DNA database. What are your rights with regard to retroactive DNA profiling?

Legal Rights and Responses

The U.S. Constitution most likely does not prohibit applying DNA laws retroactively. Some state constitutions may prohibit it and some DNA collection laws do not apply retroactively to people convicted before the laws went into effect. The expectation of privacy is greatly lessened while in confinement, so while you do not have to voluntarily comply, your DNA sample will likely be taken from you involuntarily.


6. Surreptitious DNA Sampling

Scenario

You have refused to give police a DNA sample in their familial search. The police subsequently go through your curbed garbage during the night to obtain samples of your DNA from discarded items such as plastic cups or cigarette butts. Can the police forage through your garbage to obtain samples of your DNA?

Legal Rights and Responses

This practice, known as “surreptitious sampling,” is currently legal. There is no expectation of privacy in garbage once it is out on the curb. Courts have found that there is no expectation of privacy in discarded genetic material and that the practice of surreptitious sampling does not violate the Fourth Amendment. The U.S. Constitution does not prohibit the police from searching your garbage because you are deemed to have abandoned it. State constitutions or laws may prohibit the police from doing this.

7. Genetic Privacy

Scenario

Your DNA profile has been uploaded onto the national forensic DNA database because of a previous arrest. The police give another agency of government that is studying behavioral genetics access to the DNA database, which includes your profile. The police also allow the genetic investigators to examine the original biological sample of anyone in the database. What are your rights? What laws, if any, protect the privacy of your genetic information?





Legal Rights and Responses

Such use, without individual informed consent, is improper. The Fourth Amendment to the Constitution protects the privacy of genetic information collected for law enforcement purposes from being used in unrelated research projects. Personal data should be used for the purpose for which it was collected. Individuals convicted of a crime have fewer civil rights and may not be successful in challenging the sharing of their profiles. Those who were arrested and not convicted do not lose their rights, however, and may have a legitimate claim in a court of law. The reality, however, is that you will probably never know if other governmental agencies have access to your DNA profile. This could be extended to an array of potential research such as the possibility of the government licensing your DNA sample to a private company to help it develop some sort of commercial product.


8. Removal of DNA from Databases

Scenario

You have been charged with criminal trespass in a political demonstration. Your DNA was taken during the booking procedure. You were never convicted of a crime. Do you have the right to have your DNA profile removed from the database and the biological sample destroyed?

Legal Rights and Responses

Under the DNA Fingerprint Act of 2005, it is more difficult to have your DNA profile removed and the sample destroyed. In the past, if an individual was acquitted or if charges were dismissed, the state had the burden of removing an arrestee’s sample from CODIS, the national DNA database. Under the new legislation, the arrestee is required to file a certified copy of a final court order establishing that all charges have been dismissed, the case resulted in an acquittal or that no charges were filed.

Laws in 29 states specifically require that DNA evidence be retained. Wisconsin law mandates that the biological sample be destroyed after a DNA profile is created. Laws in Connecticut, Georgia, Nebraska and Virginia require permanent retention; Arizona retains them for 35 years.


In all of the above instances, it is imperative that individuals exercise their due process right to legal counsel

[jameson245]

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HomeArchiveLaw expands DNA sampling from felons
Law expands DNA sampling from felons
July 24, 2015 robesonian Archive 0





First Posted: 1/15/2009
LUMBERTON - Watch out, convicted felons, Big Brother is coming to get you.
And he's got a needle in his hand.
House Bill 79, which was passed July 20 by the General Assembly and went into effect Monday, requires all of North Carolina's convicted felons to submit a DNA sample to the state with the hope that more crimes can be solved. Under the law, even felons who are on probation are required to submit samples if they have been convicted of their crime after Dec. 1, 2003.
Vaughn Steele, jail health administrator for the Robeson County Detention Center, said the jail has stocked up on the DNA kits - at a cost of $1.67 apiece - in anticipation of a flood of felons.
“I think it's great and will help solve crimes in the future, as well as unsolved crimes from the past,” said Steele. “And even though I haven't witnessed a DNA sample being taken since I came here in July, I expect that to change when we talk to local probation officers and get them to start bringing in everybody in our jurisdiction who's on probation.”
Steele said his department has 15 of the kits, which includes a syringe for collecting blood and a card for the felon's thumbprints and personal information.
The samples will be entered into the State Bureau of Investigation database, which already has more than 40,000 DNA samples. Prison officials are expected to collect 30,000 samples in the first year of the law, and local law enforcement is expected to collect another 10,000 samples. The North Carolina Department of Justice estimates it will cost the state $800,000 to collect the samples.
Before the passage of the law, the Robeson County Detention Center only collected DNA samples if a convicted felon was going to spend any length of time in the jail before being transported to prison, said Steele.
“We're fortunate that we don't have a lot of convicted felons come through here,” said Steele. “They're sent to the Department of Corrections. We usually only have them if they're awaiting sentencing.”
A felon must give permission before a DNA sample can be taken. If the felon refuses, a court order may be obtained to get the sample.
The state's DNA database has been in existence since 1994. For the last nine years, however, samples have been taken only from individuals convicted of murder, rape or child molestation. The new law requires authorities to add DNA samples of those convicted of any felony, including nonviolent offenses such as breaking and entering, burglary and embezzlement.
Robeson County District Attorney Johnson Britt said he sees another positive side to the samples.
“It's a technology that's much more effective than just fingerprints,” Britt said. “And it works both ways - it can prove guilt or it can eliminate a person from suspicion.
“And it has a much broader application now that it has been expanded,” he said. “It may also help solve property crimes. For example, if someone breaks into a business, cuts himself and leaves a blood sample - if that person is registered in the DNA database, we'll be able to solve that crime.”
Attorney General Roy Cooper echoed Britt, saying a larger database leads to more solved crimes, as well as proving innocence.
During a 2001 cold-case search, Virginia, which has a database of 168,000, solved 48 percent of its cases, Cooper said. And North Carolina, with a much smaller database, solved 20 percent through the use of DNA evidence. Georgia expanded its database to include DNA from all felons in 2000 and saw its offender hits soar from four or five to more than 80 during the next year.
“With more experts in the lab and a larger database, we can use crime scene DNA evidence to identify suspects, convict the guilty and exonerate the innocent,” Cooper said.
Robeson County Sheriff Glenn Maynor says “amen” to that.
“This will definitely help us solve more crimes,” Maynor said. “The more samples you have, the better your chances of solving crimes. The North Carolina Sheriffs Association was completely behind the passage of this law.”
North Carolina is one of 24 states taking DNA samples from felons.

[jameson245]

Collecting DNA samples from arrestees has been a growing trend since 1997, when Louisiana became the first state to pass such legislation. Then, eight years later, four more states passed arrestee DNA collection laws. Congress next passed the DNA Fingerprint Act of 2005, enabling states to upload arrestee DNA profiles to the National DNA Index System (NDIS), and between 2006 and 2011, 23 more states passed arrestee DNA collection legislation into law. In 2011, Ohio became one of 28 states to pass arrestee DNA collection legislation. The federal government has also passed legislation authorizing arrestee DNA collection.
Although collecting DNA samples is mandatory by law in Ohio, Cleveland police have been falling short on upholding their end of the law. In 2014, from January through August, Cleveland police made 6,608 arrests for felony charges, but only 2,001 DNA samples made it to Ohio’s crime lab. In 2013, Cleveland police made 10,136 felony arrests, but only submitted 1,589 samples to Ohio’s Bureau of Criminal Investigation. The number correlation between felony arrests and DNA collections portrays a frightening reality: Cleveland police are obstructing Ohio’s mandatory DNA collection law.
A Cleveland police department policy allows felony arrestees to refuse DNA collection in exchange for a misdemeanor charge of obstructing official business. However, only one person arrested for a felony who refused to provide a DNA sample to Cleveland police so far this year was charged with obstructing official business. Cleveland Municipal Court Administrative Judge Ronald Adrine stated that he rarely sees misdemeanor cases concerning charges for those refusing to submit a DNA sample after a felony arrest. Judge Adrine recalled having only one such case.

https://www.jurist.org/commentary/2014/1...eland-dna/

[jameson245]

CODIS Loophole Closing? Nevada Inmate Charged in Infamous Colorado Cold Case
08/10/2018 - 3:27pm
1 Comment
by Seth Augenstein


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DNA

Nevada inmate Alex Christopher Ewing in 2008 (left), 2016 (center) and 2018. He is currently serving eight to 40 years at Northern Nevada Correctional Center for charges including attempted murder and burglary. (Photos: Courtesy of the Nevada Department of Corrections)
The killer burst into the Bennett family’s home in Aurora, Colo., on Jan. 16, 1984. Using a hammer and a box cutter, he murdered 27-year-old Bruce Bennett, his wife Debra, and their 7-year-old daughter Melissa. He raped two of the victims. Only the younger daughter, 3-year-old Vanessa, survived the blunt-force trauma—but was left with life-altering wounds.
The last in a frenzied series of hammer attacks over a two-week period, including the murder of Patricia Louise Smith in Lakewood six nights before the Bennett slayings, the crime stumped Colorado authorities for 34 years.
But the killer was hidden in prison two states over, virtually the entire time, authorities now say. His DNA was never collected because of a loophole in Nevada law—a loophole authorities are only now starting to close, according to an announcement today.
Alex Christopher Ewing, Nevada Department of Corrections inmate number 20866, has been in prison since 1984—and is the latest example of an offender who may have gotten away with his worst crimes because of unevenly enforced DNA collection from state to state.
Ewing was also coming up for parole in three years.
‘DO THAT.’
Forensic Magazine’s April 2017 story, “Some 8,000 Nevada Inmates are Not in CODIS—How Many Cold Cases Will Their DNA Solve?” reported the state’s attempts to collect its death-penalty and life-sentence offenders into the national database.
Three months later, a follow-up by the magazine found seven states had thousands of the most violent offenders not uploaded into state or national DNA databases—meaning they could be getting away with wholes series of prior crimes leading up to the one for which they were caught.
Colorado authorities urged its counterparts nationwide to help everyone by getting their worst offenders collected.
“If you are one of those handful of states—Montana—that doesn’t have the DNA law that we have—that Nevada now has... pass this, do this for the victims of those cases that are still hanging out there, wondering if they’ll ever get justice on their cases,” said George Brauchler, the district attorney for the 18th Judicial District, at today’s press conference.
“I promise you, if you do this, you have the opportunity to help bring some closure to people who have these gaping holes in their lives from crimes that have not yet been solved,” said Brauchler. “Do that.”
COLORADO HAMMER ATTACKS.
Ewing, now 57, is accused of killing the Bennetts, and of three other attacks in a 12-day span in Colorado. The DNA profile generated from DNA extractions from a comforter and piece of carpet under one of the bodies was uploaded to CODIS in 2001, according to one of the latest affidavits.
The unknown “John Doe” was charged in 2002 under the power of the DNA evidence.
In 2010, a DNA sample from the Lakewood home of Patricia Louise Smith, killed six nights before the Bennetts, proved a match to the same unknown killer.
But that killer was not in any database—until last month.

The Bennett family circa 1984. (Photo: Courtesy of Parabon NanoLabs)
TWO STATES TO THE WEST.
Ewing has been in custody virtually non-stop since 1984—11 days after the spree of Colorado attacks ended, he was arrested for breaking into a house in Arizona and beating a victim’s head with a rock.
While being transporting to a court hearing, he escaped and was on the lam for two days—during which time he broke into a home in Henderson, Nevada and beat a sleeping couple with the handle of an axe.
Ewing remains behind bars at the Northern Nevada Correctional Center in Carson City for that axe-handle attack.
He is serving eight to 40 years, for a conviction of two counts of attempted murder, burglary, aggravated escape, and two counts of the use of a deadly weapon (a charging enhancement), according to the Nevada DOC.
The Nevada DNA database began in 1989, with a state law providing for the collection of DNA in certain sex crimes. But none of the laboratories could immediately do the work. Gradually, facilities upgraded, and the collection slowly expanded to include other offenses, according to experts. Homicide was not added to the state law until 1997, and all felony convictions were only added in 2007. A determination by the then-attorney general ruled that law enforcement should collect DNA only “prospectively,” Steve Gresko, the Nevada state CODIS administrator, told Forensic Magazine last year.
Retroactive collection was never the letter of the law.
“This resulted in a significant number of violent criminals who were convicted in the 70s, 80s and a good chunk of the 1990s who we have not been able to collect until now,” said Gresko.
A district attorney asked for a statewide legal opinion on the matter in September 2016, and Attorney General Adam Paul Laxalt concluded that legislators intended to make the law retroactive.
AMONG THOUSANDS.
The Nevada authorities told Forensic Magazine last year that 8,000 inmates on the rolls needed to be collected.
Kerri T. Heward, the director of the Forensic Science Division of the Washoe County Sheriff’s Office, said last year in an interview that the project was time-consuming, and massive.
“If all of the pieces fall in order, this project could be complete in a couple of years,” said Heward. “We are hoping for the best case scenario so that we may identify the perpetrators of some unsolved crimes/cold cases. We will be able to contribute to bringing closure to families.”
Forensic Magazine called Gresko on June 15 of this year for an update to the testing process. Some delays had been due to inmates refusing to voluntarily give a sample, he added.
He said there were many duplicated among the 8,000 estimate—but they had collected 1,000 samples at that point, and testing was ongoing, he said.
Gresko could not be reached this week.
THE HIT.
Ewing’s DNA buccal swab was collected in May, according to an afffidavit.
On July 10, the Colorado Bureau of Investigation received a notice that a direct match had been made to the DNA profile from the Smith murder—and a second direct match was made to the Bennett homicides shortly thereafter.
“The probability of selecting an unrelated individual at random matching at the Globafiler loci is approximately one in 13 nonillion (13,000,000,000,000,000,000,000,000,000,000),” according to the affidavit.
Ewing is now charged with six murder counts (two charges for each Bennet death), in addition to criminal attempts to commit murder, sexual assault, assault, sexual assault on a child, and burglary counts.
He is not charged yet in the Smith homicide—though authorities maintain the DNA matches.
The prosecution could pursue it as a capital case, authorities added.

forensicmag.com