Crime lab lambasted over DNA database

TOM PRECIOUS
News Albany Bureau
May. 21, 2006

ALBANY - The Erie County crime lab has assembled a DNA database that, critics say, makes Erie a "rogue county," violating the privacy and civil rights of potentially hundreds of victims and innocent people.

The county's policy for storing DNA profiles in a computer database is front and center in a war erupting at the state Capitol over whether to greatly expand the state's collection of people's genetic information.

Erie County crime lab workers are believed to be the only ones in the state who collect and file DNA samples not just from suspects, but from male victims of violent crimes. The county lab sleuths also are keeping DNA samples from individuals who have been arrested but later cleared of crimes.

Lab officials defend DNA collection policies as both legal and necessary to help police close current unsolved crimes and future crimes.

The lab keeps 158 computerized DNA profiles of crime victims - including many people who were slain - to run against a separate database of unsolved local crimes to determine if they may have committed crimes before becoming victims.

While the Erie County crime lab collects this data, the New York State DNA database is legally barred from collecting that same kind of data, leaving critics to charge the county is making up its own DNA policies.

"If I'm a male in Erie County and I'm the victim of a crime, it's almost as if the county is further violating my trust by surreptitiously entering my DNA into a government database without my knowledge," said Stephen Saloom, a lawyer with the Innocence Project at the Benjamin N. Cardoza School of Law in Manhattan, which uses DNA evidence to free people convicted of crimes.

Dr. John Simich, assistant director of the Erie County crime lab, dismissed claims that technicians are acting in rogue manner and said his lab takes great strides to protect the DNA profiles from any abuse.

"DNA is not any more private than a fingerprint," Simich said. "It's a personal identification characteristic, like a fingerprint, and it's as valuable as a fingerprint. We don't identify characteristics. We don't obtain disease [profiles]. Information can't be hacked into. It's a felony if this information is mistreated. The opponents of this technology don't look at it from that perspective. They're just using the scare tactics."

The Innocence Project last week criticized Erie County and five other crime labs in the state that keep DNA profiles of people who were later cleared by police or acquitted. Erie County's practice of keeping DNA profiles of male victims came to light with documents released to the group last week under the state's freedom of information law.

A violation of trust?

Saloom said Erie County is operating outside the law by keeping DNA samples of murder victims. At the very least, he said, a victim would have to consent to the DNA sample, something no dead person can do.

"To do so is certainly a violation of their trust in the criminal justice system, for these people have neither been suspected nor convicted of having violated any law that justifies government retention of their intensely personal DNA in a criminal database - or anywhere else for that matter," he said.

Simich, however, notes that the database of 158 male victims in Erie County has produced two hits in which a murder victim's DNA was tied to unsolved rape cases in Buffalo.

Although the dead victims obviously cannot be prosecuted, he noted that solving the rape cases gives closure to the sexual assault victims and permits police to close those cases.

Simich said he devised the policy for keeping the DNA profiles of victims and responded to critics who want to stop the lab from storing DNA profiles of people not convicted of crimes.

"It will restrict us from being able to assist the police agencies in solving open crimes," he said.

Erie County District Attorney Frank Clark was among those who said he was unaware of the DNA database from victims being collected here.

Collecting DNA samples from crime victims "should certainly be closely scrutinized," said Clark, whose office does not run the crime lab.

Police regularly collect DNA samples from murder victims at crime scenes. But the county's policy of then keeping those DNA profiles to help with other unrelated cases appears unusual.

"If it is for a purpose other than investigating who it was that caused the known male victim to become a victim, then I think we're venturing off into other areas - and into waters that might not be as settled as others, and it raises questions in my mind," Clark said.

But Clark defended as "an accepted practice" the collection of 316 legally obtained DNA samples from suspects who were later cleared.

These DNA profiles are no different than keeping fingerprints, he said, adding that innocent people can go to court to get the DNA records destroyed.

Samples from victims not murdered were collected voluntarily, he said. He stressed that all samples collected by the lab are done legally and based on FBI guidelines.

Simich said the lab decides on a case-by-case basis which victims' DNA profiles are kept with a single goal in mind: to close unsolved cases.

"A large number of those individuals - certainly not all of them because there are many innocent victims of crimes - are not upstanding citizens, and there are possibilities they may have committed other crimes," he said.

DNA samples are collected only from male victims, Simich said, because nearly all the DNA evidence from unsolved crime scenes comes from men.

The data is not shared with the state, he said.

"We don't prejudge anybody. The system is designed to determine if they are linked to a crime. That is the value of the DNA databank," he said.

Simich added that the lab's DNA profiles also have cleared 20 percent of people police considered prime suspects.

Gov. Pataki is now negotiating with state legislators a requirement that individuals convicted of any crime submit a DNA sample, which then would be stored in a state database.

Expanded state database

This procedure would add about 80,000 samples a year to the state database, up from 20,000 under a law that collects DNA samples from convicted felons.

"You can talk to any district attorney, any criminal justice official and they will tell you there is no tool more important for law enforcement than an all-crimes DNA database," said Chauncey Parker, the state's criminal services director.

Parker said he believes other local labs collect DNA profiles of crime victims, but do so to solve those specific crimes, not to run against unrelated cases.

Critics of the labs in Erie and elsewhere are merely trying to halt the efforts under way to expand the state's DNA database, according to State Sen. Dale M. Volker, R-Depew.

"It's a distraction from the real issues," said Volker, who said the critics "are more worried about people being convicted" than helping police solve cases. He called groups like the Innocence Project "anti-government and anti-prosecution."

The policy of Erie collecting DNA profiles from victim to help solve other crimes will be a subject of the DNA talks at the Capitol, said Assemblyman Joseph Lentol, D-Brooklyn, chairman of the Assembly codes committee.

Identity theft a concern

Lentol said he was unaware any lab collected a victim's DNA for use in unrelated cases.

The Assembly wants to ensure DNA profiles are destroyed for people who cooperate with police and are later cleared, Lentol said.

"I have a problem with that, as anyone else should," he said of DNA profiles of innocent people being kept.

With identity theft concerns, Lentol said the public should be worried about DNA profiles falling into the wrong hands.

Lentol was involved in the creation of the state's DNA law in 1995, and he supports its use today. But he sees differences from a decade ago.

"We didn't realize the possibilities for abuse and violations of privacy," he said.

The current talks at the Capitol to expand the DNA database offer an opportunity to put in new safeguards "to protect the rights of individuals, especially those who are innocent," he said.

Storing DNA profiles of dead people without their consent is certain fodder for law school classes. Backers, though, wonder what rights are being violated if DNA links someone to a crime but that person can't be convicted because he is dead.

If Erie wants to collect that data, Saloom said, "they should seek permission under the law."

That would be fine with the Erie County lab chief.

"I would be very much in favor of legislation that would allow us to formally maintain these databases." Simich said. "We need legislation to eliminate the attacks we are under."