New Texas Law: Old DNA on Cases NOT Prosecuted Can Be Used Against Person

On Tuesday, a new Texas law brings "due process" into a new debate: DNA that was collected from sex crimes that were never prosecuted will be placed into a database that is accessible to law enforcement, parole boards and prosecutors. Wall Street Journal article here.

At first glance, this makes sense but there are no boundaries.  This isn't about getting sex offenders off of the streets. Old DNA can be used by law enforcement and prosecutors for any reason whatsoever to build a case against a suspect on any kind of case - not just sex cases.

Let's say John Doe's DNA was found on a woman in 1988 that now matches John Doe. (At the time, the samples were preserved but not tested until after the statute of limitations on prosecution had passed.) Now, over 20 years later, John is arrested for a non-violent crime, possession of a controlled substance. Immediately upon arrest, law enforcement has access to his DNA "match" on a 20 year old case. And let's say there have been a few unsolved rapes in the area with no positive ID on the rape kits. But let's say John Doe is a 5'10" black man with braids and dark skin. And the suspect in the recent cases also matches that description.

Rest assured, John Doe will be charged with the recent rapes.  The police and prosecutors can and will use the old DNA information as a reason to charge John. The prosecutor will tell the bond court judge in aggravation that John's DNA matched the DNA of a victim from 20 years ago. And how about at trial? Will the judge allow the prosecutors to tell the jury about the 20 year old case even though John was never charged?

I am all for getting sexual predators off of the streets. I don't want a rapist who wasn't caught to jump me in Lincoln Park! But, this new law is against the interest of justice. DNA is just one link to a puzzle. It is not the end-all-be-all. Just because a man's DNA is found on a woman reporting a rape, that does not mean he raped her.  Maybe it was consensual but she got mad at him and reported him to the police? Maybe he had consensual sex with her and then she was raped by another man? Whatever the reason, every person is entitled to their day in court. 

I recently had a client who was accused of sexual assault. The alleged victim was a girl who said my client raped her.  His blood was found on her bedroom window. His DNA was on her sheets. Looks like a slam-dunk case for the prosecution, right? Wrong. He had apparently been having sex with the girl for months. One night, when her father came home, he jumped out the window. Several months later, her father found out about their relationship and so she made the rape allegation to protect herself. 

This law has the opportunity to grow legs. Does that mean fingerprints found at a murder scene can soon be entered into a database? This database can easily expand beyond DNA in old rape cases. 

And what about our privacy rights? Now, a person's DNA will be in a database without their knowledge or ability to challenge its validity. In Illinois, the state cannot obtain one's DNA unless he/she has been convicted of a felony offense.

DNA does not mean "Do Not Argue (because you are guilty)." Every person is entitled to confront their accuser. Ever person is entitled to due process. This law takes away those rights. 

www.xpunged.com and www.tamaraholder.com