STRANDS OF JUSTICE
July 10, 1998
Law enforcement agencies are relying more and more on DNA evidence to help solve cases. But do DNA databanks infringe on the rights of defendants? Betty Ann Bowser reports. Also, participate in an Online Forum on the topic.
A RealAudio version of this segment is available.
A state-by-state breakdown of legislation regarding DNA databanks.
Participate in a forum on the use of DNA in criminal trials.
Browse the NewsHour's coverage of health and legal issues.
BETTY ANN BOWSER: These are good times for Tony Snyder. He owns his own business, the T& T Body Shop in Columbia Heights, Maryland. And recently it's been financially successful. But for seven long years Snyder sat in a Virginia maximum security prison--convicted of rape--serving a sentence of 45 years. In 1993 he was exonerated and released--after his DNA sample failed to match another found on the victim's clothing.
TONY SNYDER: I'm for DNA 110 percent--110 percent. It's the greatest thing that has ever happened to me. Thanks to those scientists it was a dream come true because I was hoping and praying that something could show that I wasn't the one who did it.
BARRY SCHECK: He had three possible ways that he could have carried it out: in a paper bag, in his posse box, or in his hand.
The Innocence Project at the Benjamin Cordoza School of Law.
BETTY ANN BOWSER: Barry Scheck helped prove Snyder's innocence. Best known as the DNA expert on O.J. Simpson's defense team, Scheck runs the Innocence Project at the Benjamin Cordoza School of Law in New York City.
BARRY SCHECK: If the blood on his jacket is not the victims' blood, that's a huge factor in his favor.
BETTY ANN BOWSER: The program's goal is to free innocent people from prison with post-conviction DNA evidence. Here, Scheck reviews potential cases with students. So far the project has exonerated 33 people.
BARRY SCHECK: This great advance in crime solving, in forensic science, in DNA testing, is excluding out a considerable number of individuals who would have otherwise been convicted. And conversely, we can go back now and look at old cases where people are claiming they're innocent and prove it in unprecedented numbers. I mean, this is extraordinary.
Solving unsolvable cases.
BETTY ANN BOWSER: DNA evidence is also being used to solve previously unsolved or what appeared to be unsolvable cases. In 1994, 22-year-old Hope Denise Hall was viciously raped and stabbed to death in this apartment building in Petersburg, Virginia. Hall was well known in the community. She worked for the NBC affiliated television station in Richmond. Police had almost no leads. They went over the crime scene time and time again for any clues but were unable to solve the crime. Gerald Mann one of the detectives assigned to Hall's case.
GERALD MANN: I didn't think that we would be able to solve this. You know, murders go unsolved, but this one was one that we just had no information on. The investigation was thorough from the beginning, and it was very frustrating because there wasn't anything that was overlooked or a glaring omission by any of the investigators. Everything was done correctly.
BETTY ANN BOWSER: Then in 1996, during a routine search of Virginia's DNA data bank, officials made what's called a "cold hit." The data bank identified an individual whose DNA profile matched DNA recovered from Hope Hall's body. It belonged to 19-year-old Shermaine Johnson, already in jail for murder and robbery. He will go on trial for the Hall murder soon. Dr. Paul Ferrara runs the DNA lab where the cold hit was made in the Hall case.
DNA's double-edged sword.
DR. PAUL FERRARA: It allows the triers of fact to have very strong reliable data to say this person's DNA was at the scene of the crime, or this individual's DNA was not at the scene of the crime. So it's a two-edged sword. If you are guilty of a crime, DNA is probably your worst enemy. On the other hand, if you're innocent, it's your greatest friend.
BETTY ANN BOWSER: Lisa Schermier is a forensic scientist in Ferrara's lab. On the day we visited she was looking for DNA contained in blood on a huge machete knife.
LISA SCHERMIER: This is a chemical test for the detection of blood. It's a series of chemicals. I've put some water on the swab to swab the suspected stain, then I go through a series of chemicals and if it is blood, it will give me a fuchsia-type color on the swab.
BETTY ANN BOWSER: The next step in the process depends on how much DNA was found. If it's an ample amount, a traditional method is used. But if it's a minuscule amount, such as saliva on a cigarette butt, a new technology is used. It's called PCR--or Pulimeres Chain Reaction. This new PCR testing allows small pieces of DNA for the first time to be cloned. Put simply, in about 20 minutes the PCR process makes it possible to make millions of copies of the tiny original DNA sample so that there is more than enough DNA to test. Recognizing the increasing accuracy of DNA evidence, most states now require all convicted felons to give DNA samples. Their individual codes are then stored in computers. With 160,000 samples collected, Virginia's database is the largest in the nation. Ferrara explains what that means for law enforcement.
DR. PAUL FERRARA: If the police have a suspect, we can compare DNA, and that's how this technology was first applied. Then we realized very quickly, but, wait a minute--if we have a database of all convicted felons, knowing the recidivism rate of felons, if in the future those individuals leave any part of their tissue or body fluids at the scene of a crime, we would be able, even in the absence of any suspects being developed through normal police investigative techniques, we can search the data bank and identify the individual.
Are laws mandating DNA testing for convicted felons unconstitutional?
BETTY ANN BOWSER: But Benjamin Keehn of the public defender's office in Boston thinks most of the laws mandating DNA testing for convicted felons are unconstitutional. Keehn is suing the state of Massachusetts on behalf of a class of felons, some of whom are in this correctional facility in Framingham. Keehn maintains the state does not have the right to search anyone's body without probable cause.
BENAJIMIN KEEHN: The state is saying, in effect, you may be a danger in the future because you were in the past, and therefore we need to register your DNA. That is a fundamentally different way that government has heretofore been permitted to treat its citizens. And if that theory prevails, it can be applied to any number of other potential classes or subclasses of our society as to which an argument could be made that that subclass is at risk of committing crimes in the future. If we are going to take DNA from prisoners because they are at-risk, why shouldn't we take DNA from teenagers, from homeless people, from Catholic priests, from any subgroup of society that someone is able to make a statistical argument of being at risk?
BETTY ANN BOWSER: Some states like New York have passed legislation that limits use of DNA data banks for identification purposes only. Others, like Massachusetts, say its use is justified for any "law enforcement purpose."
BARRY SCHECK: I can easily imagine, unless they correct this legislation, that somebody will come along someday very soon and say look, I have a law enforcement purpose--I want to get access to the DNA you took from all these convicted sex offenders, and I want to do some screening on it because I think I can find a gene that shows the people committing sexual assaults, or I can find a gene that's related to violent behavior or homicidal behavior, or I can find a gene that's related to maybe drug abuse, which I think may be related to some of the crimes of these offenders; I want to experiment with it.
BETTY ANN BOWSER: Law enforcement--especially the FBI--is sensitive to that kind of speculation. The Bureau is setting up a national data bank that will someday contain thousands of DNA samples from all over the country. Jennifer Smith--who runs the FBI data bank--insists the Bureau is only interested in DNA information that can be used to solve crimes.
JENNIFER SMITH: Well, I believe the system has been designed to protect people's privacy. I think we are very conscious of the areas of DNA that we amplify--these areas don't have information in them that could be used by life insurance companies or something like that. Again, it's really just for forensic purposes. But I have no desire to look at private citizens that aren't involved in crimes and their DNA profiles, nor does I don't think anybody else in our outfit, at least.
BETTY ANN BOWSER: Virginia's forensic Chief Ferrara says the way to avoid abuse is to have laws to prevent it.
DR. PAUL FERRARA: You do it by regulation; you do it by statute; you do it by imbuing on people ethical, responsible behavior. We are only interested in one thing, and that is assisting in the identification of the guilty or the exoneration of the innocent, and that's all we're concerned about.
BETTY ANN BOWSER: But attorney Ben Keehn takes no consolation in that statement.
BENJAMIN KEEHN: I don't have any confidence at all--in states where the laws are sketchily drawn, there is nothing but the good word and the assurance of the people who are administering these data banks to protect us--not that I have any reason to doubt them--but for this information to be useful to law enforcement, it has to be disseminated. It has to be sent out. Once you start sending this stuff out, the risks of genetic privacy violations occurring is there.
BETTY ANN BOWSER: Wendy McGoodwin, head of the Council for Responsible Genetics in Cambridge, Massachusetts, also worries that DNA data banks may be seriously abused.
Examples of genetic discrimination.
WENDY MCGOODWIN: Our organization has documented numerous examples of genetic discrimination where healthy individuals have either lost their insurance or their jobs on the basis of predictive genetic information. Doctors are now able to test for hundreds of gene mutations that may put people at risk for future disease--diseases such as cystic fibrosis or sickle cell anemia. Now it's very important for your doctor to have that information but it can be very dangerous if that information falls into the wrong hands.
BETTY ANN BOWSER: But for people like Tony Snyder DNA technology has been a miracle. It restored his life and gave him back his reputation. As new uses for DNA technology grow, there are going to be new questions to answer.--ones pitting privacy rights against the great public good--and right now most of those questions have no clear cut answers.