Virginia latest state to consider taking more DNA samples

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Posted: Feb 07, 2015 12:34 PM
Virginia latest state to consider taking more DNA samples

RICHMOND, Va. (AP) — After Morgan Harrington's body turned up in an Albemarle County hayfield in 2009, authorities were able to obtain crime-scene DNA evidence. What they didn't have yet was a forensic match to a suspect in Virginia's groundbreaking databank of felons' DNA.

As it turns out, there were some missed opportunities to obtain that match — commonly referred to as a "hit" — years earlier. Jesse Matthew Jr., who has been forensically linked but not charged in the Harrington case, had been accused of sexually assaulting two women at separate Virginia universities in 2002 and 2003. Had he been charged, police would have collected Matthew's DNA. But the cases were dropped after the women declined to press charges.

Matthew was convicted of trespassing in 2010, but that offense was not on the list of misdemeanors that would require him to submit a DNA sample — a limitation that could be erased in future cases if legislation pending in the General Assembly is approved. Authorities finally obtained Matthew's DNA from a cheek swab after he was charged in last September's disappearance of University of Virginia student Hannah Graham, whose body was found a few miles from where Harrington's had been discovered five years earlier. That evidence linked Matthew to a 2005 sexual assault in Fairfax County and to the death of Harrington.

Graham's slaying illustrates why expansion of Virginia's DNA collection effort is a good idea, proponents say.

"In Hannah's case, if Jesse Matthew is in fact guilty, she would be alive today if we could have legally taken his DNA in that previous conviction," Albemarle County Sheriff Chip Harding told The Associated Press before testifying in favor of the legislation at the General Assembly.

Supporters include Hannah Graham's father, John Graham, and Harrington's mother, Gil Harrington, who formed the nonprofit Save the Next Girl organization after her daughter's killing.

"We have the technology, and it should be utilized," Harrington said. "There have been so many high-profile crimes. The time to get this done is now."

DNA databank expansion has its critics, however. Claire Guthrie Gastanaga, executive director of the American Civil Liberties Union of Virginia, said expanding it raises privacy and constitutional search-and-seizure concerns and could exacerbate existing racial disparities in the criminal justice system.

"Moreover, there is further reason to question the basic fairness of imposing this blanket testing on all who are convicted of minor crimes," Gastanaga said, adding that many people facing misdemeanor charges plead guilty and probably would not fully understand the ramifications of giving up genetic information that is far more revealing than a simple fingerprint.

"Who knows how DNA in a data bank could be used in the future? Gathering up everyone with a certain marker? Predicting dangerousness, mental illness, disease?" Gastanaga said.

Such concerns have done little to slow the expansion of DNA databanks nationwide as police and lawmakers seek broader powers to prevent new crimes and solve old ones.

Since Virginia became the first state to establish a DNA databank for violent felons in 1989, others have followed. Now 48 states collect DNA for all convicted felons while Minnesota and Missouri collect it for a limited number of violent or sex-related felonies, according to the National Conference of State Legislatures. Virginia is also among the 42 states that take DNA samples for at least some misdemeanor convictions.

New York became the first state to collect DNA in all felonies and misdemeanors, except traffic offenses punishable only by fines, in 2012 and is being joined by Wisconsin this year.

Collection of DNA upon arrest, rather than conviction, in felony cases also is becoming more common. The Urban Institute reports that 28 states now authorize collection of DNA from people arrested in at least some felony cases — a practice that was upheld last year in a 5-4 ruling by the U.S. Supreme Court in a Maryland case. Virginia is among the states that take DNA upon arrest for some serious felonies, and that aspect of the law would not be affected by the pending legislation to expand the list of misdemeanor convictions.

The three bills under consideration vary in exactly which misdemeanors would be added. Among the possibilities are trespassing, stalking, violating a protective order and indecent exposure. Virginia already has about 384,000 samples in its DNA databank, which produced 513 hits in 2014, according to the state Department of Forensic Science.

Harding said the proposals to add more misdemeanors are a good start, but he would like an even broader expansion, citing New York as the model. According to the New York Division of Criminal Justice Services, DNA samples collected in the misdemeanor cases that were added to the state's program in 2012 have provided links to 35 homicides.

Expansion comes at a cost, however, and that likely will be a factor in Virginia lawmakers' deliberations. Sen. Mark Obenshain's bill was endorsed by the Courts of Justice Committee but referred to the Finance Committee, which will consider its estimated cost of $232,500 per year for analyzing up to 10,000 additional samples per year. State budget officials say that estimate is for supplies only, and it could be higher if more analysts have to be hired to process DNA samples.