Virginia Aggressively Uses DNA to Solve Other Cases

Hours after the new year dawned, two men were led into the booking area of the Fairfax County Detention Center and ordered to scrape their cheeks with tiny swabs. The same thing happened 160 miles away in the small town of Waverly, where a stabbing suspect had been brought in after a bloody fracas.

In both cases, the suspects provided police with DNA samples compelled under a new Virginia law that seeks to use genetic tests to broaden the hunt for suspects in unsolved crimes.

Soon after the tests were carried out, Fairfax sheriff’s deputies took the DNA samples to a state forensic lab down the street. And Waverly Police Chief Aaron Britton drove 60 miles to Richmond to provide state officials with a sealed envelope containing genetic traces from the stabbing suspect held in the Sussex County jail.

Starting Jan. 1, Virginia unleashed the nation’s most ambitious law enforcement effort to use genetic testing to match suspects with evidence found at unsolved crime scenes -- an aggressive melding of science and law enforcement that civil libertarians warn will chip away at constitutional and privacy rights.

Under the law passed last year by the Virginia Legislature, police are authorized to order suspects being charged with violent crimes and some other felonies to provide DNA samples or forfeit their right to be released at their booking. The saliva traces are being entered into Virginia’s DNA bank, where forensic workers will be able to search for links to crime scene evidence from among 170,000 DNA samples -- a vast collection surpassed only by Britain’s genetic bank.

While all 50 states allow DNA sampling of convicted felons, Virginia is the first to allow such a move so early in the legal process. Police and crime scene technicians are excited by the prospect of expanding their data collection with samples taken from 12,000 felony suspects expected to be arrested this year in Virginia. “I think it’s a great idea,” Britton said.

Civil libertarians are aghast. “Virginia has become a national leader in invading people’s privacy,” said Rebecca K. Glenberg, legal director of the state American Civil Liberties Union. “We’re always concerned when the government gathers a large amount of personal information for its own discretion.”

In Waverly, Britton said his beleaguered seven-officer force has had a difficult time contending with transient criminals. He said last year’s serial sniper killings in the Washington, D.C., suburbs reinforced the need to move quickly to match suspects to crime scenes. “It’ll help for the kinds of crimes we’re getting these days,” he said. “You have people doing things all over the place, and we never know who we’re dealing with when we arrest them.”

Britton was one of the first to use the law. The process, he said, went as easily “as taking a fingerprint.”

Constitutional experts expect the law will be challenged. Peter Neufeld, a New York criminal attorney and DNA specialist, said he worries that eagerness to use DNA samples to scan for other crimes will encourage officers and prosecutors to charge suspects solely “to strengthen weak cases while they fish for other charges.”

And Christopher Amolsch, a Washington-area defense attorney, said he fears suspects acquitted of criminal charges may be haunted by DNA samples that will end up “floating around for years through the system” despite Virginia’s assurances that such information will be safely expunged.

The law was pushed last year by Virginia’s attorney general, Jerry W. Kilgore, as the next logical step in the state’s buildup of a massive collection of genetic traces used to match against evidence at unsolved crime scenes.

“We think we’re in the vanguard,” said Paul B. Ferrara, head of the Virginia Division of Forensic Science. “Within the next few years, you’ll see all the states applying this to their arrested felons.”

Louisiana and Texas have attempted similar procedures. But Louisiana’s effort to take DNA samples from those accused of serious crimes has stalled because of staffing and budget woes, and Texas is applying the tests only to those charged with a limited range of sex crimes.

Virginia’s intensified effort will cost about $650,000 this year, forensic officials said.

The state increasingly has relied on its 14-year-old DNA bank to solve cases that have frustrated police. In November, Ferrara said, forensic officials scanning the bank’s genetic library made their 1,000th “cold hit,” matching a rape suspect to a 2001 sexual-assault case.

The law should pose no disruption to civil liberties, Ferrara said, because courts have long allowed mandatory testing of convicted felons. Judicial rulings also have upheld law enforcement’s growing use of DNA sampling as an investigative tool.

Unlike fingerprinting, a court-sanctioned technique that police have used for decades to identify the presence of suspects at crime scenes, DNA matching has become a powerful weapon over the last decade, providing authorities with the ability to find genetic traces in carpet fibers, hair, saliva -- almost anything that a suspect contacts.

In the sniper case, for example, police have linked juvenile suspect Lee Boyd Malvo to one homicide scene because traces of his DNA were allegedly found on a grape stem recovered at the site.

But some legal experts suggest that the use of DNA sampling to search for a suspect’s involvement in other crimes beyond the immediate offense raises serious constitutional problems.

“There may be plenty of new and wonderful law enforcement purposes for DNA sampling,” said Ira Robbins, a professor of criminal law at American University, “but there’s real concern whether this particular use is proper.” While a convicted criminal “has lost the presumption of innocence,” Robbins added, taking genetic samples from a newly arrested suspect “crosses a line I’m not sure we want to cross.”

The most glaring concern, Neufeld said, is the damage done to suspects whose felony charges are dropped before trial or who are acquitted.

A provision of the Virginia law compels forensic officials to destroy the DNA samples soon after charges are dropped. But if copies end up in the hands of other agencies, there may be no way to ensure their destruction.

Katya Newton, counsel for the forensic division, acknowledged some looseness in the law that might pose other difficulties. It is unclear, for example, what happens when a trial results in a hung jury -- a situation in which a suspect is not clearly acquitted, but also escapes a guilty verdict.

And the law does not spell out how to compel DNA testing of uncooperative suspects. The threat of being held for refusing to provide a genetic sample has no effect on accused murderers and other violent suspects who already expect to be jailed.

Several law enforcement officials said that if there were an urgent need, police could ask a judge to allow them to take a genetic sample by force.

Despite his enthusiasm for the law, Britton has no intention of trying to force suspects to take DNA tests without a court order. “If the law isn’t clear, we’re not going out on a limb,” he said. “I like the idea of using DNA, but my first concern is covering my guys. Before they do anything, I want a judge backing them up.”