COUNTDOWN TO WRONGFUL CONVICTION DAY: 2 DAYS;
QUOTE OF THE DAY: "I don’t trust them to do the right thing with it, ” Dwyer said of governments that employ police officers and would store their DNA. “Are we now in this Orwellian future where everyone’s going to have a bar code? Your DNA should only be in a database if you’re convicted of a crime.”
Lawyer Terrence Dwyer;
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PUBLISHER'S NOTE: This post is part of a series I am running on DNA related issues. The issues in the series include flawed DNA tests (false positives really happen); opposition by prosecutors and appeal courts to post conviction testing (even after setting a date for execution); access to the source code for New York City’s proprietary DNA software, which some scientists and defense lawyers contend may be inaccurate in matching a defendant to a complex sample of genetic material; New York City's vast, ever-growing, unregulated DNA database that police are already using to connect suspects to evidence from crime scenes across the five boroughs; Untested rape kits. (Bad for victims; bad for innocent accused persons who could be exonerated by the DNA tests); Lots of grist for our mill.
Harold Levy: Publisher; The Charles Smith Blog.
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GIST: "New York City is building a
vast, unregulated DNA database that police are already using to connect
suspects to evidence from crime scenes across the five boroughs. In the last five years, the number of
DNA profiles in New York’s local database has grown dramatically, and
by an ever-increasing rate, driven in part by a push to collect DNA in
every gun case. As of July, the Office of Chief Medical Examiner was
storing about 64,000 genetic profiles, The Trace and WNYC have learned. Details about the size of the database and its rapid growth have not been previously reported. The DNA in the database comes largely
from crime scenes and suspects at a time when it is increasingly easy
to obtain a profile from just a few cells left on a water bottle or
doorknob. Lawyers say there are people in it who have never been
convicted of a crime, and have no idea that their genetic profiles are
routinely checked against evidence collected in criminal investigations. New York police say database hits
generate thousands of solid investigative leads a year, and are a major
way they nab dangerous criminals. “DNA is probably the most powerful
scientific tool available to us,” said Emanuel Katranakis, commanding
officer of the NYPD’s forensic investigations division. Forensic and legal experts agree that
DNA evidence is a powerful crime-solving tool. But some have voiced
alarm at the way New York City has built its database — with no
oversight or scrutiny. State and federal DNA databases, by contrast, are
subject to legislative oversight and strictly limit whose DNA can be
stored, in most cases, to people who have been convicted of crimes. Experts are also concerned that there
appears to be no clear mechanism to scrub the database of DNA from
people who give samples voluntarily, or whose DNA is taken without their
knowledge. “It always is extremely troubling
when bureaucracies spiral out of control and start invading areas that
the state legislature did not authorize, and which are impinging upon
privacy concerns,” said Barry
Scheck, co-founder of the exoneration group the Innocence Project.
Scheck said he complained many times about New York City’s unregulated
“rogue” database during his years on the New York State Commission on
Forensic Science. Last year, police investigating the
killing of a Howard Beach jogger, Karina Vetrano, collected DNA from
more than 150 people to compare with material found under the victim’s
fingernails, and on her neck and cellphone, court records show. One of
those people was later charged with the murder. The DNA from many of the
others was labeled “suitable for entry” into the city’s database —
meaning that, although those people were never charged, their DNA can
remain on file indefinitely and be run thousands of times a year against
biological material found on victims and evidence. Police wouldn’t say
how they identified the people whose DNA was collected. The Medical
Examiner’s Office declined to comment. One important group has stayed out of
New York’s growing database: rank-and-file police officers. Though some
forensic experts say it would be best to keep all officer profiles on
file to eliminate their DNA when it winds up at crime scenes, only crime
scene specialists, police lab employees, and bomb squad officers
provide DNA. “Contractually police officers are not required to give DNA
samples,” an NYPD spokesman said in an e-mail. Experts say it’s essential that local
governments protect their citizens by making clear rules about how
biological evidence should be collected, stored, used, and discarded. “I
think DNA is a powerful tool for law enforcement and crime solving,”
said Erin Murphy, a New York University law professor and author of Inside the Cell: The Dark Side of Forensic DNA. “[But]
the standards governing who has to give DNA, and what happens to that
DNA once they’ve given it should really be very particularly determined
in law — not at the whim of a prosecutor or a police investigator.” New York’s medical examiner has
maintained a DNA database since the late 1990s. Initially, DNA could
only be collected if a substantial amount of genetic material was found,
like blood at a crime scene. It was typically used to investigate
violent crimes. More recently, scientists learned to pull a DNA profile
from just a few cells on something a person touched. The ability to make DNA matches from
tiny amounts of genetic material has proved a boon to authorities trying
to address a particularly vexing problem: stubbornly low conviction
rates in gun-possession cases. As The Trace and WNYC reported in July,
the NYPD is the first major police department in the country to swab
virtually every gun that officers recover for DNA. This push is a big
reason for the rapid growth of the city’s DNA database. Last year, the medical examiner’s
office performed DNA tests on 1,682 guns — four times as many as two
years before. Police matched 309 firearms to suspects — six times as
many hits as two years before. Prosecutors credit the program with
helping them secure convictions in 56 percent of the gun-possession
cases in the first half of this year, a higher percentage than at any
time in the last decade. David Kennedy, a policing expert at
John Jay College of Criminal Justice, said that collecting DNA from
everyone who has touched an illegal gun in New York could be a powerful
tool for police, since there is overlap between that group and people
likely to be involved with other crimes. “It’s going to build on itself, and be more and more useful over time,” Kennedy said. State and federal officials are also
building out DNA databases, but there are strict rules about what
genetic material can be entered. Convicts, people awaiting trial, and
detained immigrants are required to submit a DNA sample to the Federal
Bureau of Investigation, which maintains the federal database. Before
new collection practices are adopted, Congress holds hearings and there
is a public debate. State guidelines vary, but are also
openly debated and approved by elected officials. In New York, lawmakers
approve the parameters for the state database. Many local databases have only
self-imposed rules for whose DNA can be entered. A spokeswoman for New
York’s medical examiner said her office has created guidelines for the
database “developed in accordance with state and national laws,” but
they are not publicly available. She would not share them with The Trace
and WNYC. New York police said it isn’t their aim to sweep innocent people into the database. “We’re not looking to collect DNA
from all persons,” Katranakis said. “We’re very keen on making certain
we’re always respecting the constitutional rights of New Yorkers, that’s
paramount.” Scheck, the Innocence Project
co-founder, said that in his two decades on an accrediting panel for the
state he grew increasingly concerned about the New York City medical
examiner’s reluctance to put database rules in writing. He would ask the office, for example, if it put rape victims’ DNA in the database. He was told no, he said. “I said ‘Well great! You shouldn’t! But where’s that written down? Where’s your set of rules and regulations?’” “I personally never saw them,” Scheck said. DNA science isn’t perfect. Experts
say as police use it more in investigations, they will get more
legitimate hits. They will also have more mix ups and false positives. ........ The New York medical examiner’s
office has also been criticized for pushing the limits of science too
far. A coalition of defense lawyers recently asked the state inspector general’s office to investigate two testing methods that the medical examiner stopped using in January. Experts say we may not yet have
imagined all the ways our genetic material might be misused. Government employers might use it to predict future illnesses and diseases. They
might use it to track down a whistleblower. Some of the tactics law enforcement officers use to get DNA samples have also been questioned. In New York, defense lawyers
regularly fight cases in which police take their clients’ DNA without
them knowing — for example, by collecting it from a glass of water
accepted while being questioned in a precinct. Under the law, that DNA
is considered abandoned property, similar to items a person throws in
the garbage. Defense lawyers argue that their clients didn’t abandon
their genetic material. They don’t have the option of taking it with
them. ........ Lawyers in New York now routinely ask
judges to grant protective orders to keep a client’s DNA out of the
database until a case concludes, or if the client is found not guilty or
the charges are dropped. Some judges agree, others don’t. But when police take people’s DNA
without their knowledge, there is no clear legal path for the subjects
to get their DNA removed — or even to find out it is in there in the
first place. There is also no set protocol for getting a person’s DNA
out of the database when they give it to police voluntarily. In New York and most other large cities, police officers are not required to provide DNA samples unless a judge orders them to. Terrence Dwyer, a lawyer who
represents police officers and writes about legal issues and law
enforcement for the policing news website PoliceOne.com, said he doesn’t
think officers should have to give samples to the database. But nor
does he think anyone else should, unless they’ve been convicted of a
crime. “I don’t trust them to do the right
thing with it,” Dwyer said of governments that employ police officers
and would store their DNA. “Are we now in this Orwellian future where
everyone’s going to have a bar code? Your DNA should only be in a
database if you’re convicted of a crime.”
The entire story can be found at:
https://www.thetrace.org/2017/09/new-york-city-gun-crime-dna-database/
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/c
