Role of DNA ev­i­dence in the Grim Sleeper case cre­ates cause for con­cern

Austin American-Statesman - - OPINION -

DNA ev­i­dence was un­de­ni­ably the key to the ar­rest and charg­ing of Lon­nie David Franklin Jr., be­lieved to be the Grim Sleeper re­spon­si­ble for a string of slay­ings in Los An­ge­les be­tween 1985 and 2007. Many will cite this use of DNA ev­i­dence in a high-pro­file se­rial murder case as one more rea­son to in­crease re­liance on this im­por­tant in­ves­tiga­tive tool. But in fact it’s pre­cisely at a moment like this when an in­ves­tiga­tive tri­umph can blind us to the dangers of ex­pand­ing ge­netic sur­veil­lance.

There were ac­tu­ally three dif­fer­ent uses of DNA ev­i­dence in the Grim Sleeper in­ves­ti­ga­tion that we should be concerned about. They all turn ba­sic as­sump­tions about our crim­i­nal jus­tice sys­tem on their heads. The first is the use of fa­mil­ial DNA searches. Most of the time, in­ves­ti­ga­tors search state DNA data­bases to find a com­plete match link­ing a par­tic­u­lar per­son’s DNA pro­file to crime scene ev­i­dence. Fa­mil­ial matches are dif­fer­ent. A “hit” in the data­base es­tab­lishes defini­tively that the per­son in the data­base is not the wanted sus­pect, but sug­gests that it is one of his or her relatives.

Why is that prob­lem­atic? Keep in mind that in usual po­lice “searches,” there must be in­di­vid­u­al­ized prob­a­ble cause for sus­pi­cion, as re­quired by the Fourth Amend­ment. With fa­mil­ial searches, the only rea­son the po­lice iden­tify their sus­pect is be­cause he is ge­net­i­cally re­lated to some­one in a DNA data­base. If that sounds like guilt by as­so­ci­a­tion, it is. Why should the mere in­clu­sion of one of your fam­ily mem­bers in a DNA data­base mean that you might be a tar­get of an in­ves­ti­ga­tion one day?

The sec­ond in­ves­tiga­tive tech­nique used in the Grim Sleeper in­ves­ti­ga­tion was the use of “aban­doned” or “dis­carded” DNA. We all leave DNA on used cof­fee cups, smoked cig­a­rettes and many other items on a daily ba­sis. Af­ter the po­lice turned their fo­cus to Franklin, un­der­cover po­lice fol­lowed him un­til he left some of his DNA on a piece of pizza as well as sil­ver­ware and a glass af­ter a meal out. Lon­nie David Franklin Jr. ap­pears for ar­raign­ment as the al­leged ‘Grim Sleeper’ killer in Los An­ge­les Su­pe­rior Court on July 8. A bill­board with pho­tos of the vic­tims went up in Comp­ton, Calif., on July 9.

Few rules gov­ern the cir­cum­stances in which po­lice can col­lect that in­vol­un­tar­ily shed DNA. Po­lice typ­i­cally de­fend the prac­tice by say­ing it pro­duces re­sults. Of course, when suc­cess­ful matches are found, the un­re­strained col­lec­tion of aban­doned DNA sounds de­fen­si­ble. But what about all of the hunches that po­lice might like to pur­sue in this way? Have we all silently con­sented to giv­ing up our dis­carded DNA to the po­lice?

The third use of DNA in the in­ves­ti­ga­tion is un­likely to re­ceive much fan­fare; it wasn’t suc­cess­ful. Yet it is equally dan­ger­ous to civil liber- ties. Two years ago, LAPD vice of­fi­cers ar­rested a num­ber of sus­pected johns not as part of a crack­down on pros­ti­tu­tion but rather for the pur­pose of col­lect­ing their DNA. (Many of the Grim Sleeper’s vic­tims were pros­ti­tutes.) Such a tech­nique is known as a DNA drag­net. As of Jan­uary 2009, Propo­si­tion 69 al­lows the state to col­lect DNA not just from those con­victed of felonies but also from all peo­ple who have sim­ply been ar­rested on sus­pi­cion of com­mit­ting felonies. Cal­i­for­nia At­tor­ney Gen­eral Jerry Brown’s for­mal ap­proval of fa­mil­ial searches is still limited to search­ing pro­files of con­victed felons in spe­cial cases, but it’s not hard to imag­ine an ex­pan­sion to all cases re­gard­less of sever­ity, and to ar­restee pro­files as well.

There’s no doubt that DNA ev­i­dence gives the po­lice an im­por­tant tool. With­out it, the Grim Sleeper case would prob­a­bly be yet an­other un­solved case.

The trou­ble is that we are rush­ing for­ward with these uses of DNA ev­i­dence with lit­tle con­sid­er­a­tion of the ever-in­creas­ing scope of ge­netic sur­veil­lance over our cit­i­zens. Many states that have not for­mal­ized their poli­cies in these ar­eas have taken note of what the po­lice did in this case. What mat­ters isn’t just that this par­tic­u­lar fish was caught; it’s the ever-widen­ing net over us.

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