By Gregory B. Hladky
2:40 PM EDT, June 25, 2013
Lately, federal and state courts have been coming down hard on the side of criminal case DNA testing.
According to a recent U.S. Supreme Court ruling, you don't even have to be convicted of anything to have a DNA swab taken. All the cops need is to arrest you for a serious crime and they can swipe some of your saliva and use your DNA against you if it matches up to an entirely different case.
And Connecticut's Appellate Court just issued a decision last week saying it's okay for police or prison guards to use "reasonable force" to get a DNA sample if a convicted felon doesn't want to give it up. This state only requires that DNA samples be taken from people convicted of felony crimes, but the law was revised in 2011 to allow DNA samples to also be taken at the time of arrest if the suspect had been previously convicted of a serious crime.
All of which may sound lovely to fans of TV detective dramas, but one of those decisions could end up causing major headaches for a Connecticut crime lab still struggling with big DNA case backlogs. That decision by the Supremes also hooks up with some serious civil liberties concerns.
Connecticut's history of dealing with criminal DNA testing hasn't been pretty. A few years ago, the state forensic lab was hopelessly understaffed and overloaded, months and even years behind on a backlog of 4,500 untested DNA cases. At one point in 2011, the lab actually lost its federal accreditation for a time.
The state responded by putting a new dude in charge, adding 48 new lab positions, increasing its budget, and this year allocating an additional $2 million to "outsource" some of the DNA work to private laboratories.
"We're getting support. We have a plan in place," says the lab's new chief, Dr. Guy Vallaro. "I think we're going to knock this backlog down to get a turn-around time [on new DNA cases] within 60 days."
The lab is now authorized to have more than 117 full-time employees, Vallaro says.
The trouble is that the backlog on DNA testing, while it's been cut by 40-50 percent, according to Vallaro, is still at something like 3,200 samples or potential samples from crime scenes around Connecticut in recent years. "It is a tremendous burden that took years to develop, and it won't go away overnight," Vallaro points out.
The bright side of the situation is that the lab has no backlog on DNA testing for convicted felons, according to Vallaro. He says those amount to about 5,200 samples per year, and he doubts there will be much of an increase just because the state Appellate Court found authorities could use force to obtain DNA swabs from convicted felons.
Connecticut has collected about 94,000 DNA samples from convicted felons since the original law was passed in 2004, Vallaro says. There is also a new audit by the FBI Quality Assurance Standards unit, which found just five "minor deficiencies" in the Connecticut lab. The lead inspector told state officials that it's "remarkable to have so few findings," especially since similar audits found 100 problems in 2011 and 23 last year.
The FBI audit rated the overall work of the lab as excellent, says Vallaro.
Before you get too giddy over all this, keep that U.S. Supreme Court ruling in mind. It could eventually produce a whole new flood of DNA samples needing to be tested at Connecticut's lab.
A bunch of other states (28 to be exact) already demand a DNA swab test for anyone arrested for a serious crime, and those states all allow that evidence to be used to convict that person on another criminal charge.
So John Doe could be picked up for robbery, have his DNA tested, and if it came back as a positive match from a separate rape case, Doe could also be charged with that second crime.
Maryland is one of those 28 states. Its law was challenged as unconstitutional on the grounds that it violated the 4th Amendment protection against unreasonable searches. The U.S. Supreme Court ruled earlier this month that it wasn't unconstitutional, because it was simply a way of helping to identify individuals, much like a fingerprint.
"I think that's going to have ramifications across the country," says Vallaro. He points out that if Connecticut were to follow the lead of Maryland and those other states, his staff would have to deal with a dramatic jump in DNA tests.
Michael Lawlor, Gov. Dannel Malloy's top criminal justice adviser, says there are those in this state who want to take DNA samples from anyone arrested on felony charges. Lawlor says his boss "is not going to push for" any immediate change in Connecticut's DNA criminal testing law, but that Malloy "is generally supportive of expanding the DNA database."
According to Lawlor, "A lot of people are nervous... because they wonder what's going to be done with these DNA samples." But he calls that a "misconception that clouds people's thinking… It's really just a high-tech fingerprint."
David McGuire is nervous about it all right. He's an attorney with the Connecticut chapter of the American Civil Liberties Union, and McGuire says his organization is convinced that DNA samples are a lot more than "high-tech fingerprints."
"We believe the Supreme Court got it wrong," McGuire says. "It's a very low standard — just being arrested [for a serious crime]."
And the information from a DNA swab isn't simply going to identify the individual involved, McGuire points out: it's potentially going to be used in the prosecution of a totally different crime than the one that got that sucker arrested in the first place.
"We don't believe the [Maryland DNA case decision] is the final word on this," McGuire adds.
"A lot of Americans are thinking about privacy protections right now," he says, pointing to the recent revelations about federal snooping on private telephone calls and e-mails in the name of fighting terrorism.
McGuire says lots of Americans are coming to the conclusion that "the government isn't very good or trustworthy" when it comes to private information like telephone calls, emails, or maybe even your DNA.
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