Lost Lives, Preventable Violence and Delayed Justice: the High Cost of Not Collecting DNA from Persons Arrested for a Felony

Lost Lives, Preventable Violence and Delayed Justice: The High Cost of Not Collecting DNA From Persons Arrested for A Felony

Michael J. Kane, Esq. Majority Counsel, Pennsylvania House Judiciary Committee November 2012

During the months of November and December 2010, the Kensington section of Philadelphia was terrorized by the discovery of the bodies of three young women who had been murdered and sexually assaulted.

 Elaine Goldberg, 21, was found raped and strangled on November 3, 2010.  Nicole Piacentini, 35, was discovered after being raped and strangled on November 13, 2010.  Casey Mahoney, 27, died after being raped and strangled on December 15, 2010.

During the same period, two other women were assaulted and choked to the point of losing consciousness. Other women were sexually assaulted in the same area and manner, but managed to escape their attacker.

All of the women had in common that they had become addicted to drugs and worked as prostitutes along Kensington Avenue to support themselves and their habits.

The police recovered a DNA profile of the attacker from the body of Elaine Goldberg soon after it was discovered. It was compared with profiles stored the state database and the National DNA Index System (NDIS) through the federal Combined DNA Index System, called CODIS. There were no matches. DNA left in the bodies of Nicole Piacentini and Casey Mahoney however was found to have come from the same individual who attacked and murdered Elaine Goldberg, prompting Philadelphia Police Commissioner Charles Ramsey to confirm that a serial killer was prowling the streets of Kensington and was probably responsible for the other assaults which had occurred there as well. Because the other victims who survived did not report their assaults to police immediately, no usable DNA was recovered on them. Their descriptions of the assaults, however, all fit the same profile of the person who committed the murders.

The Philadelphia Police formed a “Kensington Strangler Task Force” and spent thousands of man hours working to solve the case. They took DNA samples from men who had been previously convicted of soliciting prostitutes. None matched. They interviewed prostitutes and neighbors and called on informants to develop possible leads. They took tips from the community and ran them down. Nothing solid emerged to move the investigation along other than a composite sketch of the attacker made from a description by one of the victims who survived and another who said the man called himself “Anthony”.

The killings were the subject of intense media coverage and prompted the “Guardian Angles” to set up patrols in the area. Commissioner Ramsey and Mayor Michael Nutter announced a $30,000 reward and pleaded with the public to provide any information they could in an effort to stop the killings. Citizens in Kensington, frustrated and feeling helpless, began to take the investigation into their own hands causing Mayor Nutter to warn residents to be vigilant but pleading with them not to become vigilantes. Nutter had reason to be concerned. On December 10, 2010 neighbors surrounded the house of an individual who resembled the composite of the killer after he was named in a “Wanted Poster” posted on Facebook. In a scene that Guardian 1

Angles founder Curtis Sliwa described as nearly “storming the Bastille”, the man was forced to call police to rescue him from the angry crowd. He volunteered to be taken into custody, interviewed and have a sample of his own DNA taken. Analysis showed it did not match the profile of the killer and police held a press conference to assure everyone that he was not responsible for the killings. i

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On June 4, 2010, four months before the body of Elaine Goldberg was found, Antonio Rodriguez, 22, was arrested for Possession of a Controlled Substance with the Intent to Sell or Deliver (PWID) and a related drug charge. PWID is a felony under Pennsylvania law. At a preliminary hearing on July 14, a court found sufficient evidence to establish probable cause he committed both offenses and he was held for trial.

On October 21, 2010, Rodriguez pled guilty to the felony drug charge and prosecutors dismissed the misdemeanor. He was sentenced to a term of 3-23 months in prison plus one year probation but released soon thereafter with accumulated credit for time spent in jail prior to his plea.

After his conviction, as required by Pennsylvania law, Rodruiguez’ cheek was swabbed to collect a sample of his DNA which was then sent to the state police lab for analysis. Backlogs in extracting forensic profiles delayed the results until mid-January 2011. When completed, they were uploaded into CODIS and authorities immediately got a “hit”. Rodriguez’ profile matched those recovered from the three murdered Kensington women. State police performed another test of the DNA sample taken from Rodriguez and confirmed it was the same as the profiles in CODIS.

With the DNA match in hand, Philadelphia police quickly arranged a press conference on January 18, 2011 to announce that Antonio Rodriguez was a suspect in the Kensington killings. They sought the public’s help in locating him. People in the community reacted immediately and he was taken into custody before the press conference was over. He was initially held for violating probation in connection with the drug conviction in October and a warrant was issued to secure another DNA sample which quickly confirmed the DNA match. The next day, he was arrested and charged with three counts of murder and other related crimes. He confessed and later was convicted and sentenced to multiple terms of life imprisonment.

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The Kensington Strangler case is one of thousands of examples in Pennsylvania and across the country where an offender’s DNA profile stored in the state or national database proved to be the key to solving other violent crimes. Had Rodriguez not been convicted of the felony drug charge, he probably would not have been identified as the Kensington Strangler, at least not before other victims met the same fate as Elaine Goldberg, Nicole Piacentini and Casey Mahoney.

Tragically though, Ms Piacentini and Ms. Mahoney and other victims of his attacks might well have been spared their horrible deaths and ordeals as well, had Pennsylvania been among the majority of states and the federal government that have enacted legislation allowing the collection of a DNA sample when a person is charged with a felony, rather than only after conviction. Had Rodriguez’ profile been entered into CODIS within the normal processing time after his arrest in June 2010 or the probable cause determination on July 14, it would have been matched to the profile of the attacker recovered from the body of Elaine Goldberg in early November. Rodriguez would have been immediately identified as the probable killer and arrested. ii Instead, he continued stalking the Kensington neighborhood for another three months. The delay of four months between his drug arrest and conviction permitted Rodriguez to become a serial murderer, costing two young women their lives and unnecessary suffering for his other victims.

Though records are not kept to easily determine other examples of a killer or rapist who could have been stopped with a pre-conviction DNA sample, there is no doubt the missed opportunity in the case of the Kensington Strangler is not unique. Clear evidence exists that taking DNA samples along with fingerprints when a person is arrested for a felony saves lives and prevents violent attacks.

 In Denver, a review of 5 individuals found they committed 3 murders, 18 sexual assaults, one attempted sexual assault, 7 kidnappings, 4 robberies, 3 felony assaults and 11 home invasions after being arrested for a felony without their DNA being taken. iii  In Chicago, 8 individuals were identified who were responsible for 22 murders, 30 rapes along with numerous attempted rapes and an aggravated kidnapping, all of which could have been prevented had Illinois permitted a DNA swab on arrest. iv  In Maryland, three individuals convicted of murder and rape committed other serious violent crimes which could have been prevented had DNA been taken when they were arrested for other crimes. v

These surveys led Colorado, Illinois and Maryland to subsequently enact laws to permit DNA collection from those arrested or charged with certain crimes. vi Twenty three other states have laws permitting pre-conviction DNA samples to one degree or another as well. Congress has followed suit. vii President Obama has called taking DNA from a person arrested for a felony “right thing to do”. viii There is no way to calculate the number of violent crimes that were prevented in states that adopted arrest DNA legislation but the consequences of failing to act is demonstrable. Not long after Washington State legislature tabled an arrestee DNA bill, a person was charged with felony hit and run involving a police car. He later committed 22 rapes and other violent crimes. Only when he was convicted of the hit and run did a DNA test link him to the string of violence. ix

These surveys of course only disclose crimes that were later linked to the perpetrator because of DNA found on the victim or at the scene. They do not account for other violent crimes which these perpetrators may have committed after being arrested, but where no DNA was recovered.

Taking DNA at the time of a felony arrest not only prevents crimes and saves lives, it can reverse the injustice to someone wrongfully convicted or even serving time in prison for a crime he did not commit. One example is David Jones, described as a mentally disabled part time janitor, who was convicted in 1995 of three murders in Los Angeles which occurred in the early 1990’s. He was sentenced to life in prison for each case.

In March, 2002, Chester Turner was arrested shortly after he raped a woman in the same area of Los Angeles. After his conviction in 2003, more than a year after his arrest, Turner submitted a DNA sample as was required by California law. It matched DNA taken from a murder that occurred in LA in 1996 and eventually, Turner’s DNA was linked to and he was convicted of 11 murders in Los Angeles during the 1980’s and 1990’s. He was later charged with 4 more including two of the three murders David Jones was serving a life sentence for. Though no DNA was recovered in the third murder Jones had been sentenced for, prosecutors concluded he was innocent of that as well. After spending 9 years in prison, Jones was cleared and released in 2004.

Though David Jones would not have avoided going to prison for the crimes he didn’t commit, it is clear had DNA been taken from Turner when he was arrested in March of 2002 rather than when he was convicted in 2003, he would have been exonerated in 2002. Instead, he remained in prison for more a year before Turner’s DNA profile set him free x

The injustice to David Jones was credited in part for the passage of Proposition 69 in 2004 which changed California law to permit DNA samples to be taken after a felony arrest. It was supported by the Governor, Attorney General and a wide range of victims groups and passed by a popular vote of 62% in favor and 38% opposed. xi

Like Washington State, Pennsylvania missed the chance to join the majority of states that permit law enforcement to use this valuable investigative tool to one degree or another. A recent bill (SB 775) failed to pass on the final voting day of the present legislative session after opponents, calling it a violation of privacy, stripped language which would have required collection of a DNA sample at arrest in cases involving criminal homicide and felony sexual offenses. xii As a result, the lives and personal security of innocent Pennsylvania citizens are at risk. In time, another Anthony Rodriguez will strike.

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Like the opponents who amended SB 775, opposition to taking forensic DNA profiles from those arrested for a felony often relies on claims that it is an invasion of the arrested person’s right to privacy. Opponents frequently spread fear among legislators and citizens by asserting that a

profile provides the government with a person’s biological blueprint which can disclose medical issues that could be used to ration health care, affect insurance coverage and lead to employer discrimination. xiii Rarely do opponents attempt to support such claims with reference to the science behind forensic DNA markers. Instead, they rely on misinformation or capitalize on the misconception that a forensic profile includes the person’s full genome and all the medical information contained within it. They likewise frequently claim that taking and profiling a sample without a warrant is an unreasonable search and seizure under the Constitutional, despite there being little if any support for that legal conclusion. xiv

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To understand the limited privacy implications and the protections that are in place to minimize them even further, it is essential to understand what forensic DNA profiles are –and what they are not.

The nucleus of most human cells contains 46 chromosomes separated into 23 pairs. Each pair represents genetic material inherited in equal amounts from the person’s biological mother and father. Chromosomes, in turn, are made up of a chemical molecule –dioxyribonucleic acide, or DNA- that is itself composed of 4 “base” chemicals called Adenine (abbreviated A), Cytosine (C), Guanine (G) and Thymine (T). These bases are attached sequentially to a molecular “backbone” made of phosphates and sugars, forming a structure analogous to a ladder that has been is twisted like a circular staircase.

Each “rung” of the ladder is made from two of the base chemicals, joined in the middle. Due to their chemical properties, base A can only join with T, while G can only join with C. The A-T and G-C “rungs” are therefore called “base pairs”. The sequence of a person’s 3 billion base pairs along the “ladder” is unique from every other person and represents his or her complete “genome”.

No two persons, except identical twins, share the same exact same genome, yet 99.9% of the base pair sequence is identical in all humans. This accounts for the fact that each person has two eyes, a head, two legs etc. The remaining .1% contains base pair sequences which can and do vary from person to person, giving each person a unique DNA profile. In both the variable and non-variable areas, some of the DNA base pairs produce proteins which react with other chemicals in the cell to control its activity. These base pairs are called “genes” and are the “coding” portions of DNA, since they produce the chemical “code” for cell development and function.

Along the DNA strand, between the genes (and in some cases, within them) are long stretches of A-T and G-C base pairs which produce no proteins and therefore contain no discernible genetic information. These non-coding regions are referred to as “junk DNA” for that reason.

The cellular codes produced by genes result in outward manifestations called “traits”. Some traits, such as eye color, are the direct result of the particular pair of genes inherited from a person’s biological parents. Others traits are less observable and direct, often the result of complex interactions with other genes and often influenced by environmental factors. For example, the variation, or “allele” of a particular gene or set of genes may cause a person to have a higher propensity to develop lung cancer, particularly when an environmental factor such as cigarette smoking is present.

There are estimated to be 20,000-30,000 coding genes in human DNA. The “junk DNA” between (and in some instances, within) the genes is part of the structure of the molecule but contains nothing producing traits or which would disclose personal information about the person.

Medical science is mostly concerned with the coding portion of DNA, as an understanding of this can lead to the development of drugs and techniques to prevent and combat disease. On the other hand, the development of forensic DNA identification has purposely been restricted to the junk DNA in particular areas on the chromosome that have been found to be highly variable from person to person. Using this DNA for forensic identification has the advantage of eliminating privacy concerns while providing a very accurate way of distinguishing one person from another by their particular DNA profiles. The Appendix at the end of this explains in further detail how this is accomplished.

It is readily apparent that the identification of a person through the comparison of meaningless patterns of A-T and G-C base pairs in junk DNA is “substantially indistinguishable from” xv the identification of a person through the meaningless loops, ridges and whorls forming fingerprint patterns on a person’s thumb. Each physical characteristic is unique to each individual, yet a DNA profile in the national database poses no more risk to individual privacy than a fingerprint stored in the FBI’s Automated Fingerprint Identification System (AFIS). xvi As the federal Third Circuit Court of Appeals has held:

Effectively, the use of “junk DNA” creates a “DNA fingerprint” that yields precise information about identity but little or no other personal information. (footnote omitted) As stated in the House Report: DNA profiles generated in conformity with the national standards do not reveal information relating to any medical condition or other trait. By design, the effect of the system is to provide a kind of genetic fingerprint, which uniquely identifies an individual, but does not provide a basis for determining or inferring anything else about the person.” xvii

In addition to the inherent protection of using junk DNA, CODIS and the NDIS further insulate profiles from being linked to any particular person. When a profile collected from a known person is uploaded in the national database, neither the name, social security number, date of birth or any other link to the source is included. Only a reference to the submitting jurisdiction is kept. A “hit” in CODIS simply reveals that a profile on in the NDIS matches the unknown profile submitted by the particular accredited agency for comparison. When a hit occurs, a message is sent to the requesting agency alerting them of that fact. That agency must go directly to the agency that provided the known sample to find out who it belongs to. In addition, if a profile of a person arrested but not convicted is submitted by a state that permits it, the FBI is required to expunge the profile if no charges are filed or there is an acquittal. The anonymity of the system and federal law requiring expunction ensures each state maintains legal control over what information will be disclosed and under what circumstances.

Beyond that, under federal law access to CODIS is restricted to requests from accredited law enforcement agencies. Unlawful disclosure of information in the NDIS or CODIS is a felony, carrying penalties of up to one year in prison and a $250,000 fine and each disclosure constitutes a separate offense. xviii

In Pennsylvania, the state database is maintained within the Pennsylvania State Police. Unlawful access or disclosure of information in the state database is a misdemeanor of the first degree (5 years/$10,000 fine) and an aggrieved person may recovery compensatory and punitive damages, together with attorney’s fees.

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Though there is no personal information which can be derived from a DNA profile in the database, privacy advocates point to the fact that cellular material from the cheek swab used to collect DNA is stored in the state DNA databank. Because these samples contain actual cells from the person, they include the individual’s complete genome. Though the databank would seem to be superfluous since information in the database profile is what matters in forensic identification, it serves an important purpose. If a hit occurs in CODIS, the agency which submitted the known profile must first confirm that the profile is accurate by performing another analysis from the saved sample before the identity of the contributor is released. This is for the

protection of the privacy of the DNA contributor. In the remote possibility that a mistake has been made in entering data in the database, the confirming test will detect it, eliminating the need to contact the contributor or securing another sample from him or her.

There is no invasion of privacy in storing a sample in the databank. A swab of cells from saliva discloses nothing personal about an individual since the cells themselves are unobservable. The sample can only expose personal information if its entire sequence or a particular coding gene is analyzed. Like a file cabinet of inked fingerprint cards, the repository contains only physical samples with no electronic data, other than a list of sample contributors to identify which sample is from whom. Nothing personal about the individual’s genetic code is known or contained in electronic form which could be remotely accessed without authorization.

Even though the possibility of unlawful access and full sequence typing of a particular sample is remote, control of the samples is nevertheless restricted by law and, since it is entrusted to the PA State Police, ultimately is under the control of the Governor. State law provides serious criminal and civil penalties for unlawful use, access or disclosure of any information derived from a DNA sample or analysis and prohibits the DNA sample from being used for any reason other than for law enforcement identification. xix

The Pennsylvania State Police has established procedures regulating who may access a DNA sample. Though a breakdown in this legal firewall could theoretically occur, it is no less threatening to privacy (and probably much less so) than a breakdown in procedures protecting private financial and tax information stored in the Department of Revenue computers, medical records and information kept by the Department of Public Welfare and school records maintained by local school boards. xx

In reality, the threat to privacy posed by these legally regulated government repositories pales in comparison to the unregulated databanks established and managed by private interests which operate for profit. xxi Likewise, if the DNA of a particular individual was of interest to someone, it could easily be gathered from a discarded drinking container or item physically handled since, like fingerprints, a person leaves his DNA on numerous items which he comes into contact with on a daily basis. xxii Certainly, these ready sources minimize the incentive and likelihood of someone breaking through the walls of the State Police repository to seize samples from the databank.

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Should the unquestionable public safety value of a DNA profile yield to privacy concerns surrounding the remote possibility of misuse of a DNA sample taken from a person arrested for a felony?

Most legislative decisions present a choice between two competing interests. Though the person arrested for a felony is presumed innocent and therefore entitled to greater rights than a

convicted felon, our laws recognize the need for many infringements on privacy and freedom even where charges are yet to be proved. We recognize the necessity of holding some people in jail to await trial and subjecting them to a full body strip search if arrested even for a minor offense. We require some to post money to gain pretrial release then monitor their whereabouts electronically or require reporting to pretrial supervision while out on bail. We routinely require someone charged but not convicted to surrender his passport or remain in a particular location. When booked on arrest, we digitize fingerprints and the photograph of the face, scars, tattoos and other unusual features and permanently store these in state and federal repositories for future use, including solving other crimes. xxiii Unless a person is charged as a juvenile, we permit his name to be disclosed to the media along with the details of the allegations. All of these infringements are accepted and justified solely on the need for efficiency and security in the administration of the criminal justice system.

Taking and storing a DNA profile in the state and federal database is “substantially less intrusive both physically and emotionally” xxiv than incarceration, strip searches or other pretrial infringements on privacy and liberty. It discloses less about the individual than his photograph. Having an arrested person’s DNA sample in the state databank is less threatening to individual privacy than having income earners’ financial information stored in state and local revenue department computers or medical history compiled in an insurance company’s server.

On the other side of the equation, requiring a sample before conviction serves a legitimate – indeed compelling- public interest not only because of its ability to prevent and solve violent crimes but also because it can protect innocent people from being suspected or formally accused of a crime they did not commit and free someone wrongly convicted. xxv Certainly saving a life or preventing a rape is sufficient justification for a minor infringement. On balance, the case for taking DNA at arrest is clear. Pennsylvania’s General Assembly should act and enact legislation to permit a DNA sample to be collected as a routine part of booking in a felony arrest.

APPENDIX

Most human cells contain a nucleus which includes 46 chromosomes arranged into 23 pairs:

Each chromosome is made up of a series of billions of connected base chemicals represented by the letters A,T,G and C. Along each series, there are places where the sequence produces something meaningful (“genes”) and long stretches in between where it does not (“junk”).

“Junk DNA”, “genes” and the use of base pairs to determine a unique profile can be illustrated by analogy to two strings containing billions of letters of the alphabet randomly written in sequence and connected near the middle. Along each string, most segments of letters would be meaningless however some letters may spell out something that conveys intelligible information. For example, a particular location (locus) along the lengthy series could look like this:

idaodpjwklwklwklwklwklantlekwselkmlwerkthemoonisfullkajlkerlwoeireopoamermalemkrla {} idaodpjwklwklwklwklwklwklwklwklantlekwthemoonisfullkajlkerlwoeireopoamermalemkrla In each string, the sequence contains an area which spells out “the moon is full” which of course has meaning. The sequences of letters before and after spell nothing and therefore provide no intelligible information. By analogy to DNA, the meaningful sequence “the moon is full” is the “gene”. The rest is “junk”.

In the “junk” segments in the random string of letters, it can be noted that the three letters “wkl” are repeated in tandem. On the top string, there are 5 of these “short tandem repeats”. On the bottom, there are 8. These “STR’s” could be described by reference to their location on the string and the physical length of the repeating letters on the page.

Similarly, in junk DNA there are locations where the base pairs A-T and G-C are arranged in “short tandem repeats” such as AAGCTAAGCTAAGCT. At any particular locus on a person’s chromosomes, the length of these STR’s can and does vary from one person to another. The possible variations in the STR’s found at a particular locus of a human chromosome are called “alleles”.

Though many people may have the same alleles at one or several loci along the genetic “ladder”, no two people have the same alleles at every locus. The uniqueness of every person’s genetic profile means a database could be established to store the full sequence of a large number of known persons’ base pairs with assurance that an unknown sample that matches someone in the database is in fact from the same person. However, the cost and time required to sequence the entire genome of an individual is prohibitive so it is impractical to have such a database on a large scale.

Because numerous variations in base pair sequences occur from person to person at certain locations on the chromosomes, however, there is no need for a database containing full sequences. A database that includes the alleles found at a few highly variable loci can produce a statistically reliable conclusion that a sample of DNA from a crime scene is from the person matched in the database.

In the early 1990’s, Congress called on the FBI to establish such a database and develop standards for accredited forensic DNA laboratories to contribute profiles to it. With the development of STR technology, the FBI worked with state forensic laboratories in the US, Canadian authorities and two private entities and selected 13 locations (“core loci”) within the 23 chromosome pairs where a high level of STR variation is found. Statistical studies of the distribution of various alleles at a particular locus assures that a match at all 13 loci between two people selected at random is extremely improbable, ranging upwards of a trillion to one depending on the rarity of the particular alleles in the population. In addition, each of the 13 core loci is located in the junk DNA, assuring that they contain no personal information.

The alleles found at each of the 13 core loci constitute a person’s forensic profile which is uploaded into the National DNA Index System. For example the results at one locus may be expressed as “D8S1179 12,14” where “D8S1179” is the locus on chromosome and “7,19” the particular alleles at that location. A full set of the results from the 13 core loci (and the designation of male or female from the chromosome (AMEL) which determines sex) is what is uploaded and searched in CODIS. The information stored in CODIS will look like this:

Marker Allele 1 Allele 2 AMEL X Y CSF1PO 10 10 D13S317 11 14 D16S539 9 11 D18S51 14 16 D21S11 28 30 D3S1358 16 17 D5S818 12 13 D7S820 9 9 D8S1179 12 14 FGA 21 22 TH01 6 6 TPOX 8 8 VWA 17 18

Since the thirteen bits of data are themselves meaningless and cannot be linked to a particular individual, CODIS ensures the privacy of profiles in the system.

ENDNOTES i Wrong Man Shown in Wanted Photo for Kensington Strangler, ABC News, December 21, 2010 http://abcnews.go.com/US/man-wrongly-accused-kensington-strangler-photo-address- facebook/story?id=12449507#.UJ1Id4az79o ii Adding felony arrest or charge samples to the caseload of the State Police Laboratory could increase the time from delivery of the specimen to uploading into CODIS. The number of new analyses would not equal the number of felony arrests, however, since an analysis that is now done upon conviction would be unnecessary. Nevertheless, additional sampling analysis would be performed because not every person arrested or charged is subsequently convicted of an eligible offense. Additional resources would be needed to expand the lab’s capacity and comply with orders for expungement. This could be accomplished with minimal or no cost to taxpayers however. Colorado funded its entire arrestee DNA law though a surcharge of less than $3 on every traffic citation issued in the state. California increase criminal penalties to cover the costs. In any event, the savings to taxpayers by reducing investigative and prosecution costs resulting from shorter investigations and more guilty pleas can be significant. A study by the Denver District Attorney conducted through a Department of Justice grant found a $90 saving in investigative and victim costs for each dollar spent on taking DNA samples during home burglary investigations. This did not include the financial and emotional savings to victims or the incalculable investigative savings from crimes which were prevented. See: Effectiveness and Cost Efficiency of DNA Evidence in Volume Crime, Denver Colorado Site Summary (2005) http://www.denverda.org/DNA_Documents/DNABurgrCostEfficiencyReserch1.pdf iii http://www.dnaresource.com/documents/DenverPreventableCrimes.pdf iv http://www.denverda.org/DNA_Documents/Arrestee_Database/Chicago%20Preventable%20Crimes-Final.pdf

v http://www.denverda.org/DNA_Documents/MarylandDNAarresteestudy.pdf vi Colorado Revised Statutes §16-23-103 (all felonies); Illinois Public Act 97-383 (2011)(murder, home invasion and sexual assaults); Maryland Public Safety Code Ann. § 2-504(3) (Crimes of violence and burglary) vii 42 U.S.C. § 14135e(c) viii http://www.politico.com/news/stories/0310/34097.html ix http://www.dnasaves.org/files/WASHINGTON_STATE_PREVENTABLE_CRIME.pdf x See: DNA Analysis Links Inmate to 12 Slayings, Los Angeles Times, October 23, 2004. http://www.latimes.com/news/local/la-me-serial23oct23,1,5955971,print.story xi http://www.smartvoter.org/2004/11/02/ca/state/prop/69/ xii SB 775, introduced by Senator Dominic Pileggi in March 2011, would have updated some of the provisions in the existing DNA law but also required DNA to be taken after an arrest for any felony and certain specified misdemeanors. It passed the Senate by a vote of 42-6 in December 2011. In the House, the Judiciary Committee reported the bill out with an amendment limiting it to those arrested for criminal homicide and felony sex offenses, phased in over a two and a half year period. Limiting it to criminal homicides followed the next year by felony sex offenses was done at the request of the Governor’s administration in order to reduce costs. On the House floor, however, an amendment by Representative Brandon Neuman passed by a vote of 132-63. The amendment removed the provisions allowing the collection of DNA at arrest and another provision which would have authorized “modified DNA searches”, a technique to generate leads in a cold case by identifying persons in the database who might be close relatives of an unknown perpetrator. The bill, without these provisions, was then approved by the House and submitted to the Senate for concurrence. Instead of concurring, the Senate took the extraordinary step of amending the bill to reinstate the arrestee DNA collection and modified search provisions. The bill was sent back to the House but no action was taken prior its adjournment on October 17 which was the last voting day in the present legislative session. xiii Haskell v. Harris, No. 10-15152 (9th Circuit, February 23, 2012): “Although Plaintiffs use the phrase ‘DNA profile’ to evoke images of an oppressive ‘Big Brother’ cataloguing our most intimate traits, the reality is far less troubling.” http://www.ca9.uscourts.gov/datastore/general/2012/02/23/10-15152.pdf xiv Claims of 4th amendment violations have been rejected by the U.S. 3rd Circuit Court of Appeals which includes Pennsylvania (United States v. Mitchell, 652 F.3d 387 (3d Cir.en banc 2011) ) and the 9th Circuit (Haskell v. Harris, supra). Each court has concluded that forensic DNA profiles disclose little, if any, private information and any intrusion or privacy invasion is substantially outweighed by the legitimate interest of the state. Though the Supreme Court is yet to decide the constitutionality of requiring pre-conviction DNA samples, Chief Justice Roberts recently intervened in a case where Maryland’s high court had ruled that the warrantless collection of pre-conviction DNA profiles violates the 4th Amendment and had ordered a halt to collecting DNA profiles from arrestees. The Chief Justice ordered that Maryland could resume taking DNA profiles, finding that the full Supreme Court is likely to grant review of the case and observing that “given the considered analysis of courts on the other side of the split, there is a fair prospect that this Court will reverse the decision below.” Maryland v. King, 567 U.S. ___ (July 30, 2012). On November 9, 2012, the Supreme Court announced it will hear the appeal. Maryland v. King, No. 12-207; http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/12-207.htm xv Haskell v. Harris, supra xvi In contrast, the storage of a person’s photographic “mug shot” and booking information discloses many personal traits and characteristics such facial features, tattoos and scars, height, weight, possible race and/or ethnic background, dental work, eye and hair color etc. This information is permanently stored after an arrest for even a minor crime and available for use by any law enforcement agency not only for identification purposes but as evidence to solve other crimes. xvii United States v. Mitchell, supra. xviii 42 U.S.C. § 14135e(c) xix 44 Pa.C.S. 2318(c) xx The fear of misuse of a DNA sample ignores the fact that DNA samples are today taken from everyone convicted of a felony. In those cases where a felony conviction follows an arrest, collection prior to conviction merely advances the time that the profile and sample will be stored. In cases where charges are dismissed or there is an acquittal, expungement of the sample and profile can be ordered, limiting the time in which a sample will be available, even if it were subject to misuse. Additional protections can be instituted for pre-conviction DNA samples such as maintaining them in a separate storage or by increasing penalties for unlawful disclosure or use. xxi See: Keeping Secrets. As DNA Databanks Quietly Multiply, Who is Guarding the Safe? US News and World Reports, December 2, 2002 http://www.hks.harvard.edu/dnabook/USA-SCREENING,%20PRIVACY.1st 13

xxii For example, Lonnie Franklin Jr., the notorious California serial killer known as the “Grim Sleeper” was matched to DNA recovered in numerous murder/rapes through DNA recovered from a pizza he had eaten. Detectives developed Franklin as a suspect when the profile from the DNA on the victims proved very similar to, though not matching the profile of Franklin’s son. The son’s profile was placed in the state database after he was arrested on a weapons charge. xxiii Both federal law and the language in SB 775 require expungement of a DNA profile and sample if charges are dismissed or a trial results in an acquittal. On the contrary, there is no provision for expungement of fingerprints or a photo taken on arrest. They remain as a permanent record, linked to the person’s name and other identifying information. Information in arrest warrants and transcripts of trials and hearings is generally publicly available even where the most personal of details are recorded even after acquittal. xxiv Haskell v. Harris, supra. xxv Had Antonio Rodriguez’ DNA been collected when he was arrested on the drug charge, the Kensington resident who was surrounded by the angry mob would never have suffered the trauma