Monday 30 May 2011

Is testing many for DNA to find a suspect contrary to our rights?

There's an old story in which a wise man used a rooster to catch a thief. The man knew the thief was among a small group of people gathered in a room. He told those assembled that he possessed a rooster who would only crow when stroked by the guilty party. After turning out the lights, he had the guests come forward one at a time and pet the bird. No crowing occurred. But what the guests did not know was that the rooster was smeared with soot. When the lights were turned back on, all those in the room had blackened hands with the exception of one person who in fact was the thief. The thief only pretended to pat the rooster out of his fear that his guilt would be noisily revealed by the crowing of the rooster.

This technique may seem clever in such an investigative event, but in real life its equivalent technique for finding a guilty person is currently being perpetrated by the Ontario Provincial Police (OPP) which is considered by many as a gross invasion of privacy and abuse of police powers.

Last August, Orangeville, Ontario nurse Sonia Varaschin was murdered. Despite some promising early leads, and a behavioral profile of the killer developed with the assistance of the RCMP and the FBI, no arrests at the time of this writing have been made. Police nevertheless caught a break. It had been discovered that before her murder, Varaschin was using several online dating sites, and was exchanging photos and personal information with men she met online. Police strongly believe that one of the men chatting with Sonia is the killer, and they may have the means to prove it: After months of forensic work, they have isolated what they believe to be the killer's DNA.

DNA is incredible evidence when found at a crime scene. It becomes the key to solving a particular crime or in some instances, similar crimes. A sample of DNA is like a fingerprint; no two people have the same genetic code, except for identical twins. In fact the chances of two people having the same DNA is so astronomical, it exceeds the 100 million people who have already lived on earth so far. There's no doubt DNA evidence is transforming police work and mostly for the better. All detectives need to do is find a single hair, speck of blood, a drop of sweat or even a flake of dandruff at a crime scene. Then, after the few hours it takes for analysis, they can trawl the database for matching the DNA found at the scene of the crime.

The OPP are asking what they call a ‘detailed list’ of men to come forward and give ‘voluntary’ samples of their DNA to investigators. To make it on the list, all a man needs to have done is have had any form of contact with Ms. Varaschin through one of the online dating sites she is said to have frequented. An Ontario Provincial Police spokesman said that while participation would be voluntary, even those men with nothing to hide have a moral duty to contribute their DNA, so that the police can eliminate them and focus valuable investigative resources elsewhere. Any man tested and cleared would have their DNA sample, and all documentation related to their part of the investigation, swiftly destroyed.

If the police are true to their word, then in my opinion, I see no reason why the innocent men shouldn’t cooperate with the police. It would save the taxpayers a great deal of money if the police investigators don’t have to waste their time and resources investigating all the innocent men.

Once a suspect’s DNA has been identified as having been on the crime scene, it will definitively identify the suspect they are looking for.

There is no doubt in anyone’s mind that the OPP investigators are resorting to what is commonly referred to in police circles as a fishing expedition—a highly coercive fishing expedition that might appear to many people as threatening to trample all over the rights of dozens of innocent people in its effort to identify a suspect.

Now the Ontario police know that they can’t force anyone to be tested for DNA but they have asked everyone to be vigilant and let them know if anyone is suddenly making plans to move or has moved since the announcement of the voluntary DNA testing was announced. I imagine that once they know who such persons are, they too, like other police officers in other jurisdictions have done in the past is watch for discarded bottles, cans, cigarettes etc. and test them for DNA.

Such a technique of mass testing had been used in Toronto in 2003. Police were able to find the man responsible for the sex-killing of 10-year-old Holly Jones after testing 300 local Toronto men (the killer was one of only two men who refused). The police couldn’t legally test them without a warrant and they had no grounds to apply for a warrant. What they did was follow the two men who refused to be tested and got their DNA surreptitiously. Many police investigators will grab a can or bottle a suspect drank from or a cigarette carelessly thrown away and test it for the suspect’s DNA. The police surreptitiously obtained the killer of Holly Jones DNA and he is behind bars today serving a 25 years to life sentence because hundreds of men volunteered to accept the minor inconvenience of having their mouths swabbed and the killer refused to cooperate.

A DNA sampling of people who were not suspects but merely lived or worked near a crime scene emerged in Britain in 1987. The police tested 4,000 men in the city of Leicestershire before the rapist and killer of two girls was caught after he asked another man to take the DNA test for him. The other man who pretended to be the man who tried to avoid the sweep told the police what the guilty man had asked him to do for him. When the police finally tested the man trying to avoid the test, the police learned that it was his DNA that proved that he was the killer.

What bothers many people is that those persons being asked to give samples of their DNA need to have done nothing more sinister or potentially criminal than simply phone the lady. Police are nevertheless asking them to submit to collection of their genetic material simply because they once or several times exchanged messages with the victim online.

Now what is really interesting about such an investigative technique is that if any of the persons on the list refuse to be tested, one of such persons may be the guilty person who murdered the woman. I say maybe because simply refusing to be tested in not evidence of guilt or even of a guilty mind.

But civil libertarians are not impressed, and have called for an immediate halt to the collection of DNA evidence, which police felt would require several weeks. They call the appeal for voluntary submissions "coercive," since men might feel that not complying would be tantamount to implicating themselves; and, in the words of Canadian Civil Liberties Association head Nathalie Des Rosiers, "It is not appropriate for police to conduct criminal investigations by process of elimination."

I am afraid that her misunderstanding of policing is obvious. Whenever tasked with solving a crime, the police start by questioning a wide pool of people to narrow down suspects. No one is compelled to answer the questions, but any who refuse to co-operate naturally bring more suspicion onto themselves. Keep in mind however that refusing to cooperate with the police is not to be construed as a sign of guilt. However, even if the questions are otherwise innocuous, such as determining a subject's location at the time of the crime, there is a degree of coercion. The voluntary submission of a DNA sample is not fundamentally different than answering a series of questions from an officer, except in that it is more efficient and intrusive.

Now some will argued that there is a vast difference between being ask to account for one’s whereabouts on a certain time of as certain day and being asked to give a sample of one’s saliva. (It has DNA in it)

And investigation by elimination is commonly used as standard procedure. The person who proves he was out of the country on the night of the crime gets cleared whereas the ones with no alibis come in for closer scrutiny. Photo line-ups exclude suspects that eyewitnesses don't recognize; and fingerprints or the lack of gunshot residue can disqualify suspects from any further investigation by the police. Indeed, the most basic part of the police officer's arsenal—the suspect description assists police by excluding those who don't fit the profile of the wanted person. Does Ms. Nathalie Des Rosiers object to these tried and true methods, as well?

Many no doubt fear where such requests for genetic material may lead. But those are emotional arguments. The request by Ontario police for DNA samples from men with known links to a murder victim is an entirely legitimate and highly targeted part of an investigation that could result in a killer being taken off the streets. It does not go further than police already do when conducting investigations, and differs from standard, accepted police techniques only in that a microscope and Petri dish are required. That's why this is a fishing expedition; if police had anything more substantial, they would never resort to casting such a wide and loose net.

But admittedly, their effort to gain compliance from suspects may be considered as being far from being voluntary. They may think of it as being highly coercive. OPP Constable Peter Leon said no one would be forced to give a DNA sample. However, any suspect who has moved since Ms. Varaschin's death will be tracked down and if anyone on the list refuses to submit willingly, he added, there has to be a reason for them refusing to do so and that will form part of our investigation."

Talk about a blackened rooster. Those refusing to comply will be presumed guilty until they can establish their innocence.

OPP Constable Leon added even more pressure by saying to the killer, "Today's message is very simple ... 'We have your DNA from the crime scene. It is only a matter of time before we find out who you are and bring you before a court of justice.' " This is a shortcut around good policing and around fundamental protections against forced confessions and wrongful prosecutions.

Taken together, the OPP's tough talk and threats are intended to do nothing less than intimidate suspects: Comply with our "request" or else move to the top of our list of potential killers.

Obviously there has to be a good reason to obtain a warrant to obtain a DNA sample from a suspect. The judge who issues the warrant is a buffer between the police and the suspect. It is the judge's job -and a vital one in a democracy to ensure against police bullying a suspect into self-incrimination.

Many people will argue that the police do not have the right to lean heavily on innocent individuals to act contrary to their own interests in the hope that by doing so, the police can force a few bad apples to pop to the surface. There exists no legal duty of a country’s citizens to permit the police to violate its people’s liberty so that the police can solve their crimes quicker.

Nevertheless, I am sympathetic with police because of the difficulty they are having catching Sonia Varaschin's killer. Still, that does not give them the authority to pressure and harass scores of innocent citizens just because they are convinced that one of them is her murderer.

For example, if one of the persons who had a telephone conversation with the deceased woman tells the police that he won’t comply with their request for a sample of his DNA, there really isn’t much that they can do to him to force him to comply. But at the same time, the man will leave himself open for the police to conduct an investigation into his background as to where he was on the day of the murder and there isn’t anything he can do to prevent the police from conducting such an investigation.

When a 25-year-old British woman’s body was found dumped at the side of a road, a local MP suggested the police collect DNA from all the men in the area, a strategy that was used (unsuccessfully) in 1995. In that case, 4,500 men had their DNA tested. But the latest victim lived in Bristol, with a population of more than one million. Apart from the logistics, is it appropriate to treat half a million males as suspects based on their gender? Not likely.

What alarms many people the most is, though, is the unfairness of lumping together innocent people and criminals in one great DNA pool.

I believe that suspects who are cleared should have the right to have their DNA profiles removed. In Canada, if a person is charged with a crime and is found innocent, he can demand that his fingerprints and the photos taken of him be destroyed but he has to make the request. However, if he has a recent conviction, the police have the option of keeping the new fingerprints and photos in their data base.

For years, police in Britain have been quietly exercising their right to collect saliva swabs from almost anyone they take into custody. Those swabs now fill scores of industrial freezers in the basement of an anonymous-looking building. Upstairs, a database holds over a million DNA profiles based on these samples. And because crime never stops, up to 3000 new samples arrive every day.

It is already possible to test crime scene DNA to see if the offender has red hair. In future, police might want to know about height, skin colour or even any unusual medical conditions. Britain's national DNA database would be an ideal place to go trawling for the genetic markers needed to develop such a biological profile of everyone in the data base.

I am worried that if mass testing is permitted, the police will be tempted to arrest people on trumped-up minor charges just to get DNA samples from innocent people they have arrested. Such a procedure would take us perilously close to random DNA sampling on the streets.

There are many who believe that there should be national data based that would contain everyone's DNA profile filed at the time of their birth.

Mass DNA testing in the above context can put anyone in the position that if they assert their rights to refuse to be tested it looks like they are hiding something, so they comply out of fear. That is an abuse of State power that the U.S. Fourth Amendment and the Bill of Rights designed to protect the people against. This is not to say, mass DNA testing has no place in the toolbox of law enforcement, however, as with any new tool it takes time to learn how to use it properly. Police must take care not to step on the U.S. Fourth Amendment and the Due Process clause of the Fifth Amendment. It is the job of the police to solve crimes and bring criminals to justice on the basis of evidence gathered through investigation and not via police abuse of the rights of the citizens.

Many people don’t feel that a round up people who fit a general characteristic in a case and asking for a DNA sample from them is proper. I disagree. We as members of society have a legal and moral obligation to assist the police in their investigations and if questioning us as to our whereabouts is considered an invasion of our privacy, so be it. Being a citizen is part and parcel to being a responsible citizen providing of course that the invasion of our privacy if not so grotesque, that it merits sanctions against the police.

For example, a man, by the name of Blair Shelton, was caught up in a DNA dragnet in Ann Arbor Michigan. Police in Ann Arbor were looking for a serial rapist and murderer who was stalking women. The only description police had of the suspect was that he was black. The police went to Shelton's employer on his day off, and stated to his manager that he was a strong suspect in a serial rape investigation; based on, according to police, the fact that Shelton was African American and that fact only. When Shelton learned that the police wanted to talk with him, and him knowing that he had nothing to hide, he called police to say he would be come in for questioning. When Shelton went in for questioning, he was told that he would have to submit a DNA sample. He was never told it was voluntary, however, he was told if he did not give police a DNA sample, they would get a court order. Shelton did give police a DNA sample.

Meanwhile his employer was so upset that one of his employees was a suspect, he fired Shelton from his job the next day. Shelton meanwhile had not been arrested and he never had any problem with law in his life before. Yet, his life was turned upside down, and for what? He did not commit the crime the police were investigating. The police could not have gotten a court order since they did not have probable cause, for if they did, they would have gone to Shelton's home and arrested him, and then gotten a court order for a DNA sample. Instead, police frightened him into volunteering a DNA sample to prove he was not a rapist. His employer in firing him acted most improperly.

That is just like police, before the use of DNA, questioning someone and saying prove you did not do it. That would be a violation of that person’s rights, and the same is true with mass DNA testing. Some would ask, if mass DNA testing puts killers and rapists behind bars, then what is wrong with a few people being inconvenienced? Ask Blair Shelton! The basis of the United States Criminal Justice System is—innocent until proven guilty. Mass DNA testing makes it all too easy for that to be turned into guilty until proven innocent. And the minute that happens all is lost. The Supreme Courts in the U.S.A. and Canada alike will, someday, have to define in what cases mass DNA testing should be used, and how that testing should be conducted.

Sally Anne Bowman’s partly clothed body was found in a pool of blood in Croydon, South London in 2005. Police had taken DNA from 1,700 men who volunteered as part of the investigation into the murder, but the screening produced nothing. Mark Dixie was arrested in 2006 after a fight at the pub in Surrey where he was a chef. His DNA was taken and checked on the National DNA Database. His DNA profile was found to match DNA taken from the crime scene of Sally Anne’s murder nine months earlier. Mark Dixie was convicted of the murder in 2008. The case led to calls for everyone’s DNA to be put on the database in the hope that similar matches would be found.
One of the first dragnets in which DNA actually identified a killer was in Wales; a neighbor of a slain rape victim was caught in a DNA sweep of 2,000 men.

By 1998, dragnets had taken hold in northern Germany, where 16,400 people were tested which is believed to be the most yet, before a mechanic was matched to a rape-murder.

Obviously there are times when mass DNA testing is effective. The question facing citizens, the police and the courts is; where is the line that differentiates gross abuse from a proper police technique that serves the best interests of society? So far, that line has not been judicially defined as of yet.

It was Homer in his Iliad who correctly said; “Injustice, swift, erect and unconfined, sweeps the wide earth and tramples over all of Mankind, while prayers to heal her wrongs, move slowly behind.”

Defining the rational of police investigations is often harder to do than defining the rational of the decisions of our courts but both must have one thing in common—honest reasoning.

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