When the sleuths on TV’s CSI break a case using crime-scene evidence, most often they collect some samples, find witnesses, and nail the bad guys—all in less than an hour.
The real world of scientific investigation moves a little more slowly. The road from crime scene to handcuffs to jail can take years. Yet the pace is picking up dramatically. In the late 1980s, the FBI began tracking DNA samples with its Combined DNA Indexing System. The FBI database, known as CODIS, has shown a striking ability to link suspects to crimes and to exonerate those wrongly convicted. New Jersey launched its own statewide DNA database in 1994.
“It’s a fantastic law enforcement tool,” says Patty Prezioso, executive assistant attorney general in the state’s Division of Criminal Justice. “There are so many cases where there are no witnesses. It allows us to solve crimes that we wouldn’t previously be able to solve.”
That tool got an enormous boost in September 2003, when state legislators amended the 1994 law to expand the pool of subjects tested. Under the original statute, the only people required to submit DNA to the state database were those convicted of violent offenses such as murder, manslaughter, sexual assault, aggravated assault, and kidnapping. Juveniles had to submit DNA if they were judged to have committed such acts. From 1994 to 2003, fewer than 10,000 DNA samples were collected in the statewide database.
The 2003 amendment changed the rules dramatically. It requires DNA to be collected from anyone convicted of a felony—a category that includes property crimes such as burglary and drug trafficking. The amendment, known as Assembly Bill 2617, includes juvenile delinquents in the wider sweep, making it one of 28 states to require DNA samples from underage offenders.
“That is a very important facet of the New Jersey program,” Prezioso asserts. Those are the youngest people in the system…a good portion of whom re-offend.” Obtaining an offender’s DNA at a young age, she says, gives investigators a better chance of identifying them if they later return to lawbreaking and leave traces of their DNA at a crime scene.
Equally important, A-2617 required DNA samples to be obtained from people who had been convicted of felonies before the law took effect—if they were still in prison, on probation, or under some form of official supervision. In addition, samples were required from people charged with felonies and found not guilty by reason of insanity.
Armed with this sweeping mandate, law enforcement has collected more than 153,000 samples since late 2003. Samples can be gathered with a simple swab of the subject’s saliva. Names do not appear in the database but can be retrieved by the bar code identifying each sample.
Investigators use the database in two ways: to link a suspect to a crime scene, or to link seemingly unrelated crime scenes, revealing patterns of evidence that may lead to arrests.
In the first ten years of the database, before A-2617, investigators were able to match DNA found at separate crime scenes only 26 times. From late 1993 through the end of 2006, they were able to do so 89 times, according to officials from the state attorney general’s office. Even more dramatic is the rise in the number of matches made between crime scene DNA and the DNA of a felon in the database. From 1994 to 2003, that happened just 36 times. In the last three years, 548 matches were made.
“It is the biggest impact in forensic science since the fingerprint,” says Tom Brettel, former director of the office of forensic science for the New Jersey State Police. “We are able to provide investigative leads on cold cases and cases that people had no idea where to go.”
The expanded database worries many defense attorneys. Some view the routine swabbing of prisoners and new convicts as a violation of the Fourth Amendment’s protection against unreasonable search and seizure. Another concern is that the law allows the state to keep the DNA profile indefinitely.
The American Civil Liberties Union challenged the constitutionality of the state law in 2004. “I believe that people are being fooled by DNA testing,” says Lawrence Lustberg, a Newark attorney who has been working with the ACLU on the challenge. “That little swab inside someone’s mouth is a search. You can’t search anyone without individualized suspicion. Generally, you need a warrant, unless you have consent or see something [illegal happening] in plain view.”
The two cases the ACLU championed involved an adult named Jamaal Allah, who had pleaded guilty to drug charges in 2001, and a juvenile who had pleaded guilty to aggravated assault in 2002. On their behalf, the organization sought an injunction to prevent the state from taking DNA samples from them.
In Mercer County Superior Court, Judge Jack Sabatino ruled that the testing was constitutional, but found that keeping the DNA samples after a suspect had been discharged from the judicial system was not. Both the state and the plaintiffs, represented by the ACLU, appealed. A three-judge panel upheld the lower court decision on the testing, but reversed the ruling that the samples ultimately had to be expunged.
The matter then went to the New Jersey Supreme Court, which in January ruled unanimously in favor of the state. To date, there’s been no appeal from the ACLU.
In its ruling, the state high court rejected the argument that a DNA swab differs inherently from a fingerprint or photograph. “There is no constitutional bar to using a photograph or fingerprint in helping to solve a crime, regardless of when the crime was committed,” the Court held. “There is no sufficient reason to treat DNA test results any differently.”
As DNA technology has advanced, investigators have been able to produce valid results from a greater variety of samples, not just from obvious sources such as spilled blood and bodily fluids. Even the most innocuous objects found at a crime scene can turn out to be smoking guns.
“Chewing gum, cigarette butts—we even got a DNA sample off a chicken bone they left behind,” says Brettel, recalling his years with the state police. “Burglary [DNA] evidence wasn’t even collected in the past, and now it is.”
The testing of all prisoners has proved enormously helpful to crime fighters. Hudson County Prosecutor Edward J. DeFazio notes a recent break in a 1999 Jersey City sexual assault case in which no suspect had ever been named. Using the database, police earlier this year linked the crime to a man convicted in 2004 on drug and stolen property charges. As a result of that conviction, the man’s DNA profile had been entered in the database.
In Mercer County, Leonard Purnell was convicted of robbery in 2001 and sentenced to twelve years in jail. After A-2617 became law, Purnell’s DNA was matched with crime-scene samples from an unsolved 1999 rape in Hamilton Township. Purnell pleaded guilty and drawing an additional fifteen years in prison.
DNA can also exonerate. In a much-publicized Trenton serial rape case, Ryan Rose was arrested in 2003 after four different rape victims identified him. But when his DNA did not match samples taken from any of the women, he was released after spending two weeks in jail.
“He had an uncanny resemblance” to an artist’s sketch, says Joseph Petersack, acting DNA lab director of the state’s Office of Forensic Science. “Without the DNA evidence, he may have spent twenty years to life in jail.”
To expand and staff lab facilities, the 2003 legislation tacked on a two-dollar surcharge for every moving traffic violation. That raises about $7 million a year—money that helped build a DNA lab that opened in Hamilton in 2004 and has boosted the number of staff scientists in the state’s forensics program from 83 in 2001 to 175 last year.
By adding staff, the state has reduced the time it takes to process a sample from as much as six months to no more than two months, according to Prezioso.
Still, a backlog exists. Of the 100,000 samples collected, 70,000 have been logged in; state officials expect to finish the process by this fall. “There is a verification process,” Prezioso explains. “Fingerprints are verified, criminal records are checked, then the DNA sample is cleaned before it is tested and scanned into the database.”
The next frontier in the use of DNA testing is likely to be legal rather than technological. Already, six states allow police to take samples from anyone arrested.
New Jersey has taken a small step down that road. Bills introduced in Trenton by Englewood Assemblyman Gordon Johnson and Senator Nicholas Sacco would further expand DNA testing to include those convicted of disorderly conduct as well as people arrested for murder, manslaughter, kidnapping, and sex offenses.
“The intrusion is minimal and the potential payoff is significant,” says Joseph Del Russo, chief assistant prosecutor for Passaic County.
Civil libertarians like Newark attorney Lustberg disagree. They warn of a slippery slope, ending in a society in which, in Lustberg’s words, “every citizen may be required to provide DNA.”