The Rock Ethics Institute

Initiatives

DNA Dragnetting

  1. When DNA evidence can materially link a particular individual to a crime, law enforcement authorities both in the United States and elsewhere have asked relatively large groups of individuals to provide DNA samples on a “voluntary basis.”  This investigative process is commonly known as DNA dragnetting, where a DNA search of a large group of individuals is conducted without warrants (Laurie Stroum Yeshulas 8 Suffolk J. Trial & App. Adv. 133) 
  2. First Dragnet: 
    1. The first DNA dragnet occurred in 1987, in Leicester England, where “[o]fficers investigating the rape and murder of two teenage girls took consensual blood samples from more than 5,000 people throughout three nearby villages”  (http://www.nrps.com/dna/default.eht).   In this case, a 27-year-old baker in Leicestershire, England, Colin Pitchfork also became the first murderer convicted on DNA evidence (Id).   However the 5,000+ DNA samples which were analyzed via the dragnet did not directly lead to the discovery of the perpetrator.  The perpetrator was discovered after an individual was overheard bragging about he had submitted a blood sample for a friend; upon police questioning it was discovered that this blood sample was provided for Colin Pitchfork.  http://www.forensic.gov.uk/
      forensic/news/casefiles/pitchfork.htm
       Pitchfork’s DNA matched that of the crime scene and he was sentenced to life for the two murders in 1988 (Id). 
  3. First Exculpation:
    1. Of note is the fact that this was also the first case where DNA evidence exculpated a suspect from a crime.  Rodney Buckland, a 17 year old who was taken in for questioning subsequently “confessed to the murder of one of the girls” but DNA testing showed that Buckland could not be a genetic match for either of the crimes (http://echo.forensicpanel.com/2000/9/18/guiltinnocence.html).
  4. Other European cases:
    1. In what has perhaps been the largest DNA dragnet to date, in 1998 police in northwestern Germany obtained “16,400 DNA samples before matching a local mechanic with DNA left at the scene of a rape and murder” (Richard Willing. USA Today September 16, 1998, Wednesday, FINAL EDITION: NEWS; Pg. 1A).  In this case, the perpetrator Ronny Rieken “was among the thousands of men in the region who voluntarily supplied samples for DNA testing” (http://www.scafo.org/library/140404.html).  Local police “used newspaper announcements to summon men from the suspected age group of 18 to 30 to have their mouths swabbed with cotton to collect saliva samples” (Id).
    2. In 2002,  in south-east England as part of “Operation Orb,” DNA swabs of over 3,000 men were taken in an attempt to identify a serial rapist  (http://news.bbc.co.uk/2/hi/uk_news/england/2374907.stm)  Antoni Imiela was eventually accused of the crime – but the arrest was made not via information received by the dragnet, but by tips received by authorities after a composite sketch of the perpetrator was broadcast to the public   (http://www.telegraph.co.uk/news/main.jhtml?xml=/
      news/2002/12/04/nrape04.xml
      ).
  5. United States:
    1. The United States has also seen a number of DNA dragnets.  DNA dragnetting was conducted in the case of Julie Busken, a woman who in 1996 was found raped and murdered in Oklahoma. (http://www.kcstar.com/item/pages/
      home.pat,local/3accb6a0.531,.html
      )  The most viable evidence available for identifying the perpetrator of Busken’s crime was from the genetic code obtained from semen found in Busken’s car.   In 2001, Oklahoma City police tested 200 men living close to Busken or possessing a criminal history of violence, but despite the dragnet, no match was found. (Id.)
    2. DNA dragnets have also occurred outside of Dade County, Florida; in and around San Diego and Los Angeles, California and in Ann Arbor, Michigan (Laurie Stroum Yeshulas 8 Suffolk J. Trial & App. Adv. 133, 133-34).  Most recently, in 2003 police in Louisiana preformed a genetic dragnet involving samples from over 1,000 men in order to attempt to identify a serial killer; but in this case the suspect Derrick Todd Lee was apprehended by genetic testing that was conducted on Lee regarding another crime unrelated to the murders, or the dragnet.  (http://www.wfaa.com/sharedcontent/
      dallas/tsw/stories/053103dntextswfill.af1b7.html
      )
  6. Voluntariness:
    1. During the 2003 Louisiana dragnet, Shannon Kohler, one of the men asked to provide samples, initially refused to give a DNA sample to the local police force.  Though providing a DNA sample was theoretically “voluntary” – Kohler’s refusal sparked suspicion for the local law enforcement authorities, thus providing the grounds for a court order to be publicly filed compelling Kohler to submit a DNA swabhttp://www.csmonitor.com/2003/0221/p03s01-usju.html.  The individuals targeted in this DNA dragnet were largely based on anonymous phone calls and when these individuals, like Kohler, refused to undergo testing they were subsequently required to do so by court order, regardless of whether they fit aspects of the profile that had been constructed of the murderer (Id).  Although Kohler drove a car that was not similar to the one described by witnesses and could prove by phone records that he was at home during the murders, the swab was taken, tested, and found to be negative (Id). 
    2. If the refusal of a request can motivate a court order requiring compliance, is the request then truly voluntary?  Legally speaking, situations can be considered voluntary even if individuals psychologically feel as if they have no other alternative but to comply with the police. David Kaye, Regents' Professor of Law at Arizona State University writes that “the law is clear that a person can consent to a warrantless search of a car, or a house, or to having the police take a sample of bodily fluids. The mere fact that the failure to consent might arouse suspicion is not so coercive as to make consent involuntary” (http://www.law.asu.edu/?id=8608).  However, critics of this position would claim that unless a viable and actual alternative is available, there is no “voluntary” choice.  As refusal for voluntary DNA testing has almost invariably led to involuntary DNA testing (via court order) there seems to be no viable alternative for the individuals who are asked to submit a genetic sample.
  7. Property issues:
    1. Police Retainment:
      1. Can the police keep the information obtained via a genetic dragnet so that the information obtained from the samples can be entered into a generalized DNA databank for later use by law enforcement authorities?  The answer to this question may depend on the how we characterize the scope of the voluntary submission to DNA testing.  For example, did the officials inform the tested individuals that the samples could possibly be retained and used in a more generalized databank in the investigation of other crimes?  If so – the scope of the consent would seem to permit the admission of the information.  But if not – then legally we enter into somewhat amorphous territory.  The Supreme Court of the United States has not yet ruled on either the constitutionality of DNA dragnetting or whether contested samples may be kept as part of a comprehensive databank.  Different states have had different responses to the issue of genetic sample retainment and generalized DNA database inclusion.  (*Link to  (I)(e), regarding the 9th Circuit Court’s argument against the permissibility of further databank use)
      2. Officials in the Louisiana dragnet of 2003 have not decided what to do with the information obtained (http://www.grandforks.com/mld/grandforks/news/5983437.htm).  Some police departments in other dragnet DNA searches have discussed the possibility of keeping the voluntary samples as part of a more generalized DNA database.  Shannon Kohler, however, is suing to have his DNA information destroyed by the Louisiana police department (Id).  The case is still pending.
    2. Return/destruction of information:
      1. As of May of 2003, the ACLU was aware of only one case where an individual has successfully sued “for the return of his genetic sample” (http://www.detnews.com/2003/nation/0305/31/nation-179315.htm).  This case involved an individual named Blair Shelton, who in 1995 provided a genetic sample “during an investigation into a series of rapes in Ann Arbor, Michigan” (http://www.detnews.com/2003/nation/0305/31/nation-179315.htm).  In this case, police had little information about the perpetrator, “besides the fact that he was black” (Id).  The police responded by repeatedly questioning men in the Ann Arbor area who appeared to be black and asking for their genetic samples.  (Id).  Shelton, an African-American, reportedly felt coerced into giving a sample, and stated that “he lost a job because police came to his workplace and told his employers that he was a suspect in the investigation” (Id).  After testing exculpated him as the perpetrator, Shelton wanted his genetic information returned or destroyed – and the Michigan Supreme Court agreed that this was his right.  The Michigan Supreme Court ruled that Shelton’s information – and the information of all suspects who have been “cleared of wrongdoing” - should be returned or destroyed under the “state law that says police cannot keep DNA records of innocent people” (Id).  Different states, however, may have different legal provisions, and consequently the status of voluntarily submitted DNA seems to be an open issue dependent on the formulation of respective state laws.
  8. Databank entry with arrest:
    1. In a variation of this theme – there is some question as to the permissibility of testing and submitting the DNA of persons to state and national databanks after they have been arrested, but not convicted.  For example, in Virginia “anyone simply arrested… for a violent crime or certain burglaries must be tested. Some 600 samples have poured into Virginia's forensics lab”  (http://www.cnn.com/TRANSCRIPTS/0301/25/nac.00.html).  Although the law does state that “if the person arrested is later acquitted, found not guilty or charges dropped, the law does require that their DNA be erased from the system but some worry that may not always happen” (Id).  Virginia anticipates “legal challenges to its new DNA testing law, although none have yet been filed” (Id).  (See also section e: 9th Cir. Ct.’s argument against the permissibility of further databank use)  (*link to (V), regarding universal databanks).
  9. Efficacy:
    1. Another troubling aspect about the trend towards DNA dragnetting is that in the United States in the majority of the cases where a DNA dragnet has been used, the dragnet itself has not helped in identifying the perpetrator.  Lisa Hurst, “who monitors DNA issues for the law firm of Smith Alling Lane in Tacoma, Wash., says few dragnets have led directly to arrests” (http://www.usatoday.com/tech/2003-05-28-dna-dragnet_x.htm).  For example, “in 1994 and 1995, the Metro-Dade police in the Miami suburbs took more than 2,000 DNA samples in search of the strangler of six prostitutes, and initially focused on three possible matches before each man was ruled out” (http://www.refuseandresist.org/police_state/art.php?aid=498).  Ultimately the suspect was apprehended “after neighbors found a prostitute bound and gagged in his apartment while he appeared in court on an unrelated robbery charge” (Id)
    2. According to the New York Times, in 1998 “the police in Prince George's County, Md., sought DNA samples from 400 male workers at a county hospital where an administrator had been raped and strangled” (http://www.refuseandresist.org/police_state/art.php?aid=498).  The article stated that “union members complained that the police were bullying employees into agreeing and were singling out maintenance workers” (Id). Despite these complaints the dragnet continued; ultimately, however, a genetic match was not established and the case “remains unsolved” (Id).
    3. In one of the few examples of successful DNA dragnetting in the United States, Israel Moret was identified as being the perpetrator of a rape against a bedridden victim (http://www.eagletribune.com/news/stories/19990114/LN_001.htm).  However, this dragnet was somewhat localized in terms of scope as the victim was an immobile and comatose patient in a nursing home; consequently the victim had contact with a relatively restricted group of men.  Moret was among the “33 men, almost all staffers at the Town Manor Nursing Home who offered blood samples to investigators for DNA testing shortly after the 24-year-old woman gave birth” (Id).
  10. Cost:
    1. Given the relatively low success rate of genetic dragnets in the United States one might wonder whether these dragnets are an excessively expensive allocation of resources in the course of a criminal investigation. In 1997, Sunny Sudweeks was killed in Costa Mesa, California (http://www.dodgeglobe.com/stories/040201/nat_genetics.shtml).’ The police department has had an ongoing DNA dragnet concerning her case for at least four years, and as of 2001, the Costa Mesa Police Department had requested genetic samples from 188 people (Id).  According to the Los Angeles Times, “[a]t about $400 per analysis, the four-year Sudweeks dragnet has cost an estimated $75,000” (Id).   The case remains unsolved.
    2. Proponents of dragnetting respond by saying that the problem is simply a matter of scope – as more individuals are included into the database, the possibility of correctly identifying a genetic match for DNA left at a crime scene becomes higher.  As of 2003, Virginia state police were reporting that they were getting “about a hit a day (successfully finding a DNA match for suspects) by checking the DNA of criminal suspects with the CODIS data base” (http://www.law.asu.edu/?id=8608).  (*Link to (V), regarding universal databanks)
  11. CODIS:
    1. The Combined DNA Index System was established by Congress in 1994 and is administrated by the FBI (http://www.privacilla.org/government/codis.html).  It is intended to enable “federal, state, and local crime labs to exchange and compare DNA profiles electronically, thereby linking crimes to each other and to convicted offenders” (http://www.fbi.gov/hq/lab/codis/program.htm). 
  12. Privacy:
    1. Scope of databank inclusion
      1. But this returns us to the issue regarding the scope of DNA databases: can and should DNA databases include information from individuals who are exonerated as suspects from an initial dragnet? Would the retention of those samples amount “to an illegal invasion of privacy because they are taken without legal suspicion that the convicts were involved in other crimes”  (http://www.cbsnews.com/stories/2003/07/18/
        national/main563965.shtml
        )?   Or, is it simply better public policy to keep DNA databanks as comprehensive as possible? (* Link to (V), regarding universal databanks)
      2. Proponents for inclusion: (*Link to (V)(b), regarding privacy and universal databanks).
        1. Proponents for databank inclusion argue that with extensive and even possibly even universally comprehensive DNA databanks, criminal investigations could be conducted with greater speed and efficiency. (*Link to (V), regarding universal databanks).Furthermore, they argue that the screening would be limited to 13 markers on the genetic code – which would be acceptable in terms of accuracy, yet limiting in terms of the amount of information actually obtained.  Those 13 markers that are used for evaluation should be markers that at very least, are not presently known to be associated with any medical predispositions, thus further protecting the privacy of the individuals.
        2. At present, the genetic markers that are typically examined in forensic analysis are in fact alleles, and not genes, per se, as “these alleles are non-coding, non-regulatory DNA sequences” (Daniel Kaye, 10 Cornell J.L. & Pub. Pol’y 455, 461).  Apparently these allele markers “reveal information that is no more intimate than the particular blood serum enzyme that an individual happens to have, the pattern of blood vessels in the retina of the eye, or the whorls and ridges in a fingerprint” and as such the alleles “disclose nothing about the individual’s susceptibility to diseases, bodily structure, or mental functioning” (Id, at 461-62).
      3. Considerations against inclusion: (*Link to (V)(b), regarding privacy and universal databanks).
        1. This question of privacy is a thorny one.  How can we be completed assured that the samples given will not also be analyzed for factors other than correspondence to genetic material present at a crime scene?  What are the provisions (and penalties) – if any - for obtaining and distributing confidential information regarding an individual’s genetic code?  For example, there is some scientific clamor (albeit controversial) about the existence of genes related to violence and aggression (Matthew Jones, 52 Duke L. J., 1031, 1039-41); the existence of genes marking some predisposition to breast cancer; and the identification of genes accurately determining the existence of Huntington’s disease within individuals.  How can we be assured that genetic information regarding aspects of our health will not be wrongly accessed by the persons who are in positions of authority with this information?  And are there any deterrents, both procedural and legal, to prevent these types of abuses from occurring? 
        2. Some states “expressly prohibit the use of more informative loci” (Daniel Kaye, 10 Cornell J.L. & Pub. Pol’y 455, FN 22).  For example, Vermont state law states that the analysis of forensic databank DNA “is not authorized for identification of any medical or genetic disorder” (Id).  Vermont also clearly articulates damages if these laws are broken.  In addition to civil damages, any one who intentionally violates these provisions “shall be imprisoned not more than one year, or fined more than $10,000, or both (20 Vt. Stat. Ann. 1941 (c)). 
      4. Sanctions and governmental vs. private action:
        1. But absent your DNA being analyzed by governmental authorities in states where these sanctions exist, it appears that in the United States it is not a crime to “merely” analyze someone’s DNA without their consent.  For example, imagine that you’re a local celebrity.  The trash that you’ve placed outside on the curb has been raided, and some private individual has taken the dental floss that you’ve discarded and has sent it to a laboratory for a thorough analysis of your genetic information.  Would you have any legal recourse?  Has your DNA been stolen, your privacy violated?  Although you may feel like DNA has been stolen, it may be difficult to be able to receive any damages for your loss.  Whether or not you have legal recourse will depend heavily on the formulation of your respective state’s civil and criminal statutes – and the majority of state statutes are silent upon this matter (D.H. Kaye & Michael E. Smith, 2003 Wis. L. Rev. 413, 435).  In the UK, however, “the theft and testing of an individual's DNA is set to become a criminal offence… as part of a raft of proposed government measures aimed at embracing the potential of genetic technology in medicine, while protecting the rights of individuals."
      5. Administrative faith?
        1. Proponents of DNA dragnetting and database inclusion argue that these issues of privacy are already evident with medical and legal records – and that if the appropriate standards and safeguards are in place (i.e., only examining parts of the genetic code which are not related to the identification of particular characteristics such as propensity towards cancer, etc.) then those privacy concerns become significantly more minimal.  But critics argues that this puts much faith in the administrative capacities of police systems which have on occasion been characterized by corruption and incompetence.