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Oklahoma lawmakers, investigators now want to snag DNA before convictions


Ben Fenwick February 12th, 2009

The law wants DNA. No fewer than 10 bills are in consideration at the Oklahoma Legislature this session requiring collection of the DNA profile of a subject, some at the point of arrest rathe...

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The law wants DNA.

No fewer than 10 bills are in consideration at the Oklahoma Legislature this session requiring collection of the DNA profile of a subject, some at the point of arrest rather than conviction.

EXPUNGING THE RECORDS
NATIONAL DATABASE
CONSTITUTIONAL PROVISIONS

However, a sticking point for some legislators appears to be the issue of innocence. If a person is innocent of a crime, he or she would have to pay a lawyer to have the record expunged under one bill.

Rep. Paul Wesselhoft, R-Moore, whose House Bill 2081 would have law enforcement collect DNA evidence from a suspect at the point charges are filed, found his bill tabled Feb. 5 when the House Judiciary Committee balked at how much expunging the record of an innocent person would cost " anywhere from $150 to possibly thousands in lawyer fees.

EXPUNGING RECORDS
Nevertheless, the committee invited Wesselhoft to resubmit his bill if such costs can be addressed. Wesselhoft later said he thought he had solved the matter " charge subjects more money up front to pay for expunging the records of those found innocent.

Wesselhoft said that Oklahoma State Bureau of Investigation statistics show about a quarter of those charged with a crime end up having the charge dropped.

"If a fourth of the people are found innocent after being charged, they shouldn't have to pay," Wesselhoft said. "But somebody is going to have to pay the money for those tests. I think I'm going to propose that they increase the cost of the DNA test altogether."

But if a quarter of "suspects" are found to be innocent, why collect their DNA in the first place?

"You may get a hit. If a hit is found, then they are going to be guilty of something else," Wesselhoft said.

DNA is collected by law enforcement by running a swab around the lips of a suspect. The tissue collected this way is analyzed and warehoused by the OSBI.

NATIONAL DATABASE
After that, the "profile," or numeric identity, of the person is put into a national database controlled by the FBI. There, it is matched to a host of unsolved crimes for which a profile may have been typed years ago, but for which no identification has been matched. If the person's DNA matches one of the unsolved cases, this is called a "hit."

State Sen. Jonathan Nichols, R-Norman, a former prosecutor, said a bill he passed a few years ago requiring all convicted of a felony in Oklahoma to submit to DNA profiling is deemed successful.

"As a result of that, there have been several hits," Nichols said. "These are usually violent crimes, unsolved for a lack of evidence or leads, and the investigation goes cold.  "¦ As a result of that law, crimes have been solved and it's highly successful. "¦ Other people want to see if they can improve it more, so you are seeing a lot of DNA bills."

Nichols said he now wants to expand DNA collection to those convicted of some misdemeanors.

His current bill, Senate Bill 1102 amends the law to collect DNA from anyone "found guilty of a misdemeanor offense of assault and battery, domestic abuse, stalking, possession of marijuana, or possession of a controlled substance "¦"

One thing Nichols said that differentiates his bill from the host of others is the word "convicted." The flurry of other filings broadens the law to include those who are charged, or even broader to those only arrested. Nichols said such bills go too far.

"My legislation is that it requires that the person is found guilty of the crime before their DNA is harvested. I am reluctant to force a person to submit their DNA to the state when they've not been found guilty," Nichols said.

CONSTITUTIONAL PROVISIONS
Tamya Cox, program director with the Oklahoma chapter of the American Civil Liberties Union, said her organization opposes DNA collection prior to conviction. A person who has been arrested is still "innocent until proven guilty" under our system of law, she said. Requiring them to submit a DNA sample might be a violation of the constitutional provisions against illegal search and seizure under the Fourth Amendment.

"There have been two successful challenges to taking DNA upon arrest," Cox said. "Both (decisions) said it was unconstitutional to take pre-conviction DNA."

Plus, she said, it's costly, a consideration when Oklahoma is facing a $600 million budget shortfall.

"All these states that take pre-conviction samples are facing enormous budgetary issues," Cox said. "Michigan recently said it's going to cost the state an extra $5 million."

Andrea Solorzano, an OSBI forensic biologist who testified to the committee on behalf of Wesselhoft's bill, said cost was probably not a factor for Oklahoma. She said federal grants would pay for the tests, even for the greater volume if DNA is collected at the point of arrest.

"We were in hopes of this passing last year, and we secured federal grants, and we purchased new instrumentation so that we have the capacity to do this," Solorzano said. "Ben Fenwick

 
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