NEW TEXAS DNA LAW ALLOWS FOR ARREST IN 19-YEAR OLD UNSOLVED RAPE CASE, STATUTE OF LIMITATIONS WILL PREVENT MOST ARRESTS

In 1990, Jennifer Schuett was snatched from her bed, raped in a field and left for dead when she was just 8 years old. Her injuries were so severe, doctors told her she would never be able to talk again. CNN article here.

Doctors performed a rape kit after the assault but technology did not allow for a conclusive result.

In 1997, her attacker, Dennis Earl Bradford, was sent to prison for a similar offense. At the time, DNA testing technology was more advanced and his DNA was entered into a database following his felony conviction. (Many states have a similar law: upon conviction of a felony, the defendant shall enter his DNA into a database.)

Last month, on September 1, a new TX law allowed for DNA preserved in old cases to be entered into a database. Blog here: New Texas Law: Old DNA on Cases NOT Prosecuted Can Be Used Against Person

Now, just a month over the passing of the new law, old DNA that was preserved in an unsolved rape can be entered into a database to search for someone who had subsequently been entered into the system, most likely for another conviction. Clearly, this law is working in the way it was intended: to finally bring sexual assault victims justice.

Unfortunately, many people will not be able to seek proper justice because sexual assault cases have a statute of limitations, meaning prosecutors must charge and prosecute a case within a certain number of years. I am assuming that Mr. Bradford's arrest was possible because he is also charged with attempted murder.

www.xpunged.com and www.tamaraholder.com

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

ARRESTED? OPEN YOUR MOUTH! THE FEDS NEED A SWAB OF YOUR DNA.

Yesterday's NY TIMES, published an article about DNA collection by the Feds. More states are moving to take your DNA upon arrest, just like they would take your fingerprints or mugshot. Most states currently require DNA samples to be taken upon conviction of a felony offense. Looks like the trend is now shifting to anyone who gets picked up by the police for any crime. In my opinion, this is a 4th Amendment Privacy violation. Article here.

As you know, I focus my practice on expunging and sealing criminal records. These are not the records of convicted felons but of people who were arrested for misdemeanor offenses and the case was either dismissed from court or they had to do supervision or some minor sentence. This expansion of the law really scares me. Just because we can expunge the person's name and fingerprints from the database, will we be able to expunge a person's DNA?

According to arrest data of 2004 by FBI's Uniform Crime Reporting:

• The number of arrests in the U.S. for all criminal offenses (except traffic violations) was APPROXIMATELY 14 MILLION. (The U.S. population was approximately 291 million) - THAT'S APPROXIMATELY 5% OF OUR POPULATION EVERY YEAR! YES, 5% OF OUR POPULATION IS ARRESTED EVERY YEAR!! Imagine how many people in the entire country have been arrested in the past 40 years - the total number must astounding.
  

• 70.8 percent of arrestees were white, 26.8 percent were black, and 2.4 percent were of other races (American Indian or Alaskan Native and Asian or Pacific Islander).
• Whites were most commonly arrested for driving under the influence (893,212 arrests) and drug abuse violations (821,047 arrests). Blacks were most frequently arrested for drug abuse violations (406,890 arrests) and simple assaults (288,286 arrests). (See Table 43.)

This means that if you get arrested for any reason, regardless if you were wrongly accused, you may have to give your DNA to the Feds! I think the privacy interest of a person arrested for DUI outweighs the public interest in obtaining that person's DNA.

If you look at the statistics above, the majority of arrests are for NON-VIOLENT offenses like DUI and drugs. According to the Times, “I’ve watched women go from mug-book to mug-book looking for the man who raped her,” said Mitch Morrissey, the Denver district attorney and an advocate for more expansive DNA sampling. “It saves women’s lives.” The idea that arrested people must submit their DNA to the database to help solve VIOLENT crimes is preposterous.

Furthermore, we are innocent until proven guilty. It is fundamentally wrong to take DNA from a person who is charged with a crime and not yet convicted.

Released without Charging: What about the people who are arrested but not even charged? Often times, the police will arrest someone who is a "person of interest" or "suspect", hold them for three days for questioning, then release the person without charging because the police realize they have the wrong guy. If the police can get DNA upon arrest, that means the police will use the new law to circumvent the standard investigation that is required to charge someone. It's like this: the police think John Smith is the offender but they aren't sure. They arrest him, swab his cheeks to get DNA, hold him for 3 days and await the DNA results, then release him if it's not a match. Even if he's released, the DNA still remains in the database. The Times even mentions this idea, "The police say that the potential hazards of genetic surveillance are worth it because it solves crimes and because DNA is more accurate than other physical evidence."

How about the police using their investigative skills to solve a crime.  I can guarantee a person who is wrongfully convicted will not be exonerated by the DNA of a person who has no criminal record, is arrested for a bar brawl, and his case is dismissed from court.  Instead, the person who is wrongfully convicted will be exonerated when the real perpetrator is taken into custody on a subsequent crime, ends up pleading guilty and then submits his DNA to the database. 

We cannot allow the government to take our DNA upon arrest!

www.xpunged.com and www.tamaraholder.com

NY Times Article on DNA: 4/19/09