State failed to collect DNA from 76K violent offenders
KNOXVILLE — After the murder of their 21-year-old daughter in 2004 — and in the years that followed without an arrest — Joan and Mike Berry channeled their grief and their rage into a fight for stronger victim protections.
Johnia Berry was stabbed more than 20 times by a home intruder six weeks after she moved to west Knoxville to attend graduate school at the University of Tennessee. She was found in the hallway of her apartment building after pounding on neighbors’ doors for help in the middle of the night. No one answered.
The only evidence investigators recovered was a partial fingerprint and drops of a stranger’s blood on the knife wielded by her killer.
While the Tennessee Bureau of Investigation tested the evidence against more than 1,000 samples of DNA from convicted felons on file to find a potential match — then the largest and most expensive undertaking in the state’s history — the Berrys pressed lawmakers to widen the net.
The Johnia Berry Act, passed in 2007, expanded on an existing Tennessee law requiring DNA collection from individuals convicted of violent and sexual crimes. The law added DNA swabbing requirements to those arrested and charged with those crimes, too.
The Berrys now worry that their efforts may have been in vain.
More than 76,000 DNA samples from convicted felons dating back to 1998 are missing from a state DNA database, according to Tennessee Bureau of Investigation estimates obtained by the Tennessee Lookout.
The failure to collect DNA is ongoing. Between 2016 and 2019, 30,316 DNA samples from felons should have been collected in Tennessee, according to TBI estimates. And 8,112 of these samples are missing.
The data does not include
“We have this amazing tool to use. If you don’t have the DNA from the offenders, the database can’t do its job.” — ILSE KNECHT, DIRECTOR OF PUBLIC POLICY AND ADVOCACY FOR THE JOYFUL HEART FOUNDATION
missing DNA from individuals arrested for violent crimes under the Johnia Berry Act. A TBI spokesperson said state officials have not even begun to calculate how many of those arrestee DNA samples are missing.
“I feel like the system is letting us down all over again,” said Joan Berry, 67. “It’s upsetting after we tried to make Tennessee a safer place. It’s heartbreaking to think this is one definitive way for another family to find out who was responsible for murdering their loved one. It angers me that the system is the way it is, and we may have to fight all over again.”
‘VERY CONCERNING’
DNA is a key law enforcement tool that can link offenders to crimes with a high degree of certainty, rule out suspects and shorten the time and expense of criminal investigations.
Once a DNA swab is obtained, its resulting DNA profile is entered into the Combined DNA Index System or CODIS, a repository of DNA profiles that can be searched for matches. More than 6,200 investigations have been aided throughout the state and nation since 2002 through the use of the database, including 558 this year, according to the Tennessee Bureau of Investigation.
David Rausch, TBI’s director, called the missing DNA “very concerning.”
“The key to our CODIS system is to have the information,” he said. “In order for us to be effective, we have to have the opportunity to compare.”
Rausch said he was first alerted to the potential problem by a member of his forensics team. The TBI has since landed a $1 million federal grant for a three-year project to conduct a census of missing DNA and identify strategies to ensure profiles are collected going forward.
Rausch said there were potentially multiple gaps in DNA collection. They include whether facilities — jails and prisons — take DNA swabs once an individual enters that facility or whether those facilities wait until an individual is set to be released.
Another potential breakdown could be confusion among law enforcement agencies over the requirement under the law that DNA must be collected from an arrested individual only after an arraignment hearing, not immediately after the arrest.
‘A MASSIVE BREAKDOWN’
In Tennessee, the importance of DNA has been highlighted by a yearslong effort to end a backlog in rape kit testing, which is nearing completion. Rape kits — evidence taken from victims’ bodies in hospitals to extract DNA and other evidence to help identify perpetrators and document injuries — are only as effective as the ability to find a match to a suspect.
“It’s important that the DNA database is filled from both sides,” said Ilse Knecht, director of public policy and advocacy for the Joyful Heart Foundation, a New York-based organization that has worked to end the backlog in rape kit testing nationally and in Tennessee.
“We have this amazing tool to use,” Knecht said. “If you don’t have the DNA from the offenders, the database can’t do its job. The numbers are flashing before my eyes right now about all the crimes that could be solved right now — and prevented. The fact there are these 76,000 missing DNA samples is a massive breakdown in the system. You’re solving crimes that are heinous. There are sexual offenders. Many of them don’t stop until they are stopped. These are not low-level offenses.”
Every state collects DNA from certain felony offenders, and 29 states collect DNA upon arrest for those felonies, according to the National Conference of State Legislatures. The laws include provisions to expunge the data if there is no conviction. The arrestee laws have been criticized by civil liberties and privacy advocates but upheld by the U.S. Supreme Court.
Tennessee is not alone in failing to collect offender DNA. States across the country have in recent years acknowledged that so-called “legally owed DNA” — DNA that is “owed” by offenders under state laws — is missing from crime databases because authorities failed to collect, process or keep track of the tests.
JAIL POLICIES
Tennessee’s DNA law applies only to violent and sexual offenders charged or convicted for crimes that include rape, murder, aggravated burglary, arson and assault.
According to its written policies, medical staff at the Tennessee Department of Correction are responsible for collecting DNA and thumbprints from newly admitted inmates who have not yet had their DNA swabbed by local authorities.
But the responsibility typically falls to jails and sheriffs in each county for the collection of DNA, according to Josh Devine, a spokesperson for the TBI.
“We collect DNA whenever the fingerprint machine tells us they need it for a particular charge,” said Russell Grissom, the jail administrator in Meigs County, one of 31 jailers and sheriffs who responded to questions from the Lookout.
Grissom said jail officers swab the cheeks of newly admitted inmates using DNA test kits supplied by the TBI, then mail them to a TBI laboratory for processing.
The vast majority of county jail officials who responded to questions from the Lookout said they, too, collect DNA from individuals arrested during the initial intake process, along with fingerprints and photographs.
“We collect it at booking,” said Justin Higdon, jail administrator in Sequatchie County. “It’s mandated by TBI that jails do it.”
But not all jail administrators agree with that statement.
In Williamson County, Sheriff Dusty Rhoades said DNA collection is up to local police unless it is one of his deputies who makes the arrest. In those instances, the DNA is taken at the jail.
“It’s up to the arresting officers,” he said. “I assume they’re doing it. As far as I know, they are doing it.”
Lt. Charlie Warner of the Franklin Police and Richard Hickey, assistant chief at the Brentwood Police Department — both in Williamson County — confirmed their officers collect DNA from eligible suspects for a swab during the arrest process. “It’s been a learning curve for us,” Hickey said. “We had to put up signs in booking saying here are the offenses you do take DNA for and here are the ones you don’t.”
A MEASURE OF JUSTICE
Three years after their daughter’s death — on the weekend of their wedding anniversary — Joan and Mike Berry got a call from then-Sheriff Jimmy Jones of Knox County.
There was a DNA hit, he told them. The suspect, Taylor Lee Olson, 22, was on probation for a series of crimes including assault and theft. Olson was re-arrested for violating the conditions of his probation, then voluntarily agreed to be swabbed for his DNA.
The call came on a Sunday. The couple, living in Georgia at the time, raced back to Knoxville in time for a Monday news conference to announce the arrest.
The news felt like an anniversary gift from Johnia, Joan Berry said. Berry said Johnia, a criminology and child psychology major, would have fought, as her parents did, for stronger DNA collection laws.
Eight months later, the Berrys would answer another call from the sheriff.
Olson, who originally confessed to the Johnia’s murder then later recanted, had hung himself using bed sheets in his jail cell. There would be no trial.
Mike Berry, now 70, has worn a button with his daughter’s photo pinned to his shirt every day since shortly after Johnia’s death. He said he was angry at the time to learn about Olson’s death.
But when people tell him they’re sorry there was no justice in the case, he disagrees.
“We did get justice,” he said. “That DNA was a perfect match.”