Taking State’s DNA Law to Rest of Nation

Having bankrolled the successful initiative drive empowering California law enforcement authorities to take DNA samples from all convicted felons and some arrestees, Newport Beach real estate developer Bruce Harrington is setting his sights elsewhere.

Harrington, who pumped nearly $2 million into the Proposition 69 campaign in November, says he intends to prod other states to come up to California’s level of DNA collection.

His commitment to the cause is rooted in personal tragedy.

Nearly 25 years ago, Harrington’s younger brother, Keith, a medical student at UC Irvine, and sister-in-law, Patti, were bludgeoned to death by an intruder in their Laguna Hills home. Patti had also been raped.

The killer has not been identified, but five years ago Orange County sheriff’s homicide detectives, relying on DNA technology, were able to link the couple’s murder to nine other slayings in the 1980s in Orange, Ventura and Santa Barbara counties.

Subsequent DNA tests showed that the killer also was responsible for raping nearly 50 women between Davis and Danville in Northern California during the late 1970s.

“Everything stopped in 1986 after he raped and murdered a young gal in Irvine,” said Harrington. “The belief is that he’s either dead or he’s sitting in prison somewhere and hasn’t been tested for DNA.”

All 50 states require DNA sampling of those convicted of murder or sex crimes, but only 35 states, now including California, cover all felony crimes.

And only California, Virginia, Louisiana and Texas take samples from certain arrestees.

“It’s clear from my family’s point of view -- my two brothers and myself -- that the only realistic way we’re going to identify who killed Keith and Patti is through DNA technology,” Harrington said. “And that is why we champion anything that will make more robust the DNA databank throughout the United States.

“There are two-, three-, maybe four hundred extended family members whose loved ones were victims of this guy,” Harrington said. “Without a doubt, he is or was the most brazen serial rapist-killer in California history.”

The new law has its critics, however. The ACLU filed a class-action lawsuit this month, contending that Proposition 69 violates the U.S. Constitution’s prohibition against unreasonable search and seizure.

The lawsuit, brought in U.S. District Court in San Francisco, does not challenge the right of law enforcement to take DNA samples from convicted felons. Instead, it argues that the new regulations should not be enforced against people who have been arrested but not yet convicted of felonies or former felons who are no longer under court supervision.

Until passage of Proposition 69, the state’s database contained more than 200,000 DNA samples from offenders convicted on any of 36 serious and violent felonies, including murder, manslaughter, rape, carjacking and arson. The new all-felon database will contain 1 million samples, according to state officials. And in 2009, it also will include all felony arrestees.

“As a result of Proposition 69, California now has the most draconian program for the collection, retention and sharing of DNA in existence anywhere in the United States,” the lawsuit charged.

The ACLU noted that before the initiative was adopted -- by 62% of the state’s voters -- California law provided for the automatic destruction of DNA samples and database entries for anyone whose conviction was overturned.

Now, it contends, a person who is acquitted or whose conviction is reversed must file a burdensome petition with the court to be removed from the DNA database, and prosecutors can block the request.

According to the lawsuit, a third of people arrested for felony offenses in California are not convicted of any crime. And many others ultimately are convicted of misdemeanors.

The ACLU also expressed concern about potential abuses in the handling of DNA samples, which typically consist of saliva swabbed from a prisoner’s mouth.

“DNA reveals highly personal medical information, like if a person is HIV-positive or predisposed to Alzheimer’s, multiple sclerosis or even certain forms of cancer,” said ACLU attorney Ricardo Garcia. “It contains a wealth of information -- much more than a fingerprint.”

Harrington called the ACLU’s concerns “just a lot of hooey.” He said the software used by law enforcement agencies identifies only 13 unique genetic markers. “It’s no different than the old-fashioned fingerprint in the sense that it’s nothing more than an identification marker.”

The ACLU said the original sample could be used to extract information that goes beyond identifying a suspect, but Harrington said there are regulations that forbid any such use.

“Proposition 69 does not effectively limit the types of genetic information that can be collected from the biological sample and does not require destruction of that sample after the DNA analysis has taken place,” according to the lawsuit.

Harrington said the ACLU raised similar alarms about invasion of privacy when it opposed the fingerprinting of crime suspects during the early part of the 20th century.

“The ACLU historically has been wrong on the science; they’re wrong on the constitutional law, and they’re running against the tide of public opinion, which passed the proposition with 62% of the vote,” he added.

Still, Harrington said he recognized that whatever the outcome of the suit, it is certain to be appealed to the U.S. 9th Circuit Court of Appeals and perhaps to the U.S. Supreme Court.

He said he had no plan to file a friend-of-the court brief in defense of the initiative.

California Atty. Gen. Bill Lockyer’s legal staff is handling that task.

Lockyer, a Democrat, supported the initiative, as did most other law enforcement officials in California.