New DNA Technique: Does It Fight Crime Or Deprive Rights?

By Ruben Rosario // 3-20-11

Cops and prosecutors support it. Civil-rights watchdogs have Big Brother-type concerns about it. It helped track down a serial killer on the Left Coast. Authorities on the Right Coast believe they could have nabbed the 'East Coast rapist' years ago had they used it.

I'm talking about familial DNA searches, the latest genetic tool stirring debate.

Essentially, familial DNA searches allow law enforcement to hunt down an unknown suspect by comparing DNA crime scene evidence to close but not identical matches contained in convicted-felon databases. Although far from exact, close similarities usually narrow down the search to a blood relative of the person they are looking for.

The legislative push for this, here and elsewhere, comes on the heels of California's "Grim Sleeper" serial killer case, billed as the first successful use of the procedure in such a high-profile manhunt.

At an investigative dead end, stumped by a killer who lay dormant for years before killing women again, cops in Los Angeles asked a state crime lab to run a familial search. Up popped 200 genetic profiles of people in the database who might be related to the serial killer, according to a Los Angeles Times piece on the case. The top five shared a common genetic marker with the crime-scene DNA at each of 15 locations that the crime lab examined.

Knowing the suspect was likely male, the crime lab narrowed the list of familial DNA to the son of Lonnie David Franklin Jr.

The suspect was apprehended last year and is charged in the killings of at least 10 women in Los Angeles.

"This case is the poster child we have been waiting for," Harvard geneticist Frederick Bieber told the newspaper last year after the break in the case.

THE CURRENT SITUATION

As written, Minnesota's bill, HF 0981, would authorize but restrict familial searches to first- or second-degree murder, first- or second-degree criminal sexual conduct, kidnapping, missing persons, or other cases "involving an imminent threat to public safety."

The search could take place only after cops have exhausted all other investigative leads. Under the bill, the state's Bureau of Criminal Apprehension would establish rules governing the familial DNA process.

Such DNA searching has been done for years in Europe, Australia and elsewhere. California and Colorado are the only states to implement legislative rules to conduct such searches. Maryland and the District of Columbia ban it, and the FBI which runs the largest DNA database in the nation doesn't allow such searches absent a congressional mandate.

But Hennepin County Sheriff Rich Stanek, the bill's chief supporter, said a dozen other states have used the technique without legislative approval.

"We could tell you story after story where this might have been very useful in Minnesota," Stanek told members of the House Public Safety and Crime Prevention Policy and Finance Committee at a hearing Thursday. The committee's chair, Rep. Tony Cornish, R-Good Thunder, is the bill's chief author.

"Why would you not want to use advances in forensics that are available to you, with safeguards and protections afforded through the courts, to solve a murder, sexual assault or important cases like that of a missing child?" Stanek told me after the hearing. "We do a pretty good job right now processing a crime scene, but sometimes evidence comes to a dead end."

He added that Minnesota law enforcement has not conducted familial searches out of concerns that it would generate a court challenge.

"I'd rather have the elected representatives of the people decide this as a policy rather than the courts," he said.

David Bjerga, the BCA's superintendent, told committee members, "It's time to take a lead on this."

THE SKEPTICS' TAKE

But this bill has problems. Rep. Mary Liz Holberg, R-Lakeville, removed herself as a co-sponsor on the morning of the hearing. The original draft, Holberg explained to me, required that a county attorney sign off on such searches as a way to ensure accountability. The county attorney sign-off was missing from the final draft.

That made Holberg uncomfortable.

"(The sign-off entity) needs to be someone removed from the same office where the investigation is taking place," Holberg said. "There's definitely merit there (in familial searches), but you need to inject a balance."

Christine Funk, a public defender with DNA legal expertise, cautioned that such searches expand genetic surveillance "beyond those who have committed crimes."

She also noted that familial searching has a failure rate of 90 percent, based on the United Kingdom's experience.

"This is not going to open the floodgates on convictions," she said.

Carolyn Jackson, lobbying coordinator of the Minnesota chapter of the American Civil Liberties Union, called the bill another example of "mission creep."

"DNA is your blueprint; that's who you are," she said. "When the state takes that for inclusion in a criminal investigation, that is an extremely invasive situation."

Cornish, the police chief in Lake Crystal, Minn., was clearly bothered by what he was hearing because he requested a shift in the order of testifiers to counteract what he labeled as "the bogeyman and black helicopter" portion of the hearing.

BCA crime lab director Frank Dolejsi was asked to come down instead. He spoke briefly about the logistics of such searches. The BCA fiscal note to the bill places the annual cost for such searches roughly 10 to 12 yearly at $123,000 for 2012 and $59,000 the following years.

Rich Neumeister, a longtime fixture at the Capitol and an open-government and privacy advocate, was given two minutes to speak. Neumeister said the bill demanded more work and public input, as California allowed, before it advances through the legislative process.

"There needs to be deliberate discussion and well-thought-out solutions to comprehend the technology and still be able to use this new tool," he wrote in an e-mail. "In the current bill, this is not the case. In my view, there are no accountability standards."

Cornish wrapped up the hearing by denouncing "some completely fabrication and misinformation testimony given here today," without giving specifics. But he put his finger squarely on the central, if emotional, driving force that could outweigh privacy concerns and push this bill through.

"Keep in mind," Cornish said, "that this is a convicted-offender database that they are searching, and if it only solves two cases, which someone so flippantly referred to, I'm sure if one of those cases was your missing child, you'll take quite a different look at it."

The bill may be attached to an omnibus public safety bill down the road. Stay tuned.

Ruben Rosario can be reached at rrosario@pioneerpress.com.

ONLINE

To read the bill on DNA familial searches or listen to last week's hearing, go to www.leg.state.mn.us and look up the Public Safety Crime Prevention Policy and Finance Committee page.

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