www.baltimoresun.com/news/maryland/sun-investigates/bs-md-dna-data-folo-20130301,0,7957405.story

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Lawmakers will push for DNA collection changes

Legislative Black Caucus wants to extend protections in Md. law

By Ian Duncan, The Baltimore Sun

8:53 PM EST, March 1, 2013

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The Legislative Black Caucus of Maryland is pushing legislation to close what it describes as loopholes in state law that allow police to keep DNA samples from people never convicted of crimes.

Del. Jill P. Carter, a Baltimore Democrat, said Friday she is preparing — with caucus backing — to introduce a bill that would subject all DNA collected by Maryland police to the restrictive standards used for genetic information taken from people charged with violent crimes and burglaries.

The 2009 law that authorized collection upon arrest made clear that genetic information must be thrown out when suspects are acquitted or their cases are dropped. Critics have complained that DNA taken in other circumstances — including under warrants issued by judges — can be retained indefinitely, regardless of whether suspects are found guilty.

The DNA law is up for renewal this year before the General Assembly, and Gov. Martin O'Malley said Friday he'd like to see it cover people arrested in a wider range of crimes. The debate in Maryland is playing out as the U.S. Supreme Court weighs the constitutionality of the law. The justices heard oral arguments this week.

For years, police in Maryland have taken DNA from homicide victims and subjects of warrants and kept it, citing court rulings they say allow the practice. Local police departments and O'Malley's office say the genetic information is collected legally and in a way that helps solve crimes.

Leaders of the Legislative Black Caucus have long been skeptical about the way law enforcement uses genetic information, arguing that it can be a tool of racial discrimination. They say all DNA collections should be treated the same way as those that fall under the 2009 state law.

"At the end of the day, people who are arrested and indicted have more protections [than people] who were suspects or victims of crime," said Del. Aisha N. Braveboy, a Prince George's County Democrat and chairwoman of the caucus. "It does create a problem in the law."

Members of the caucus met Thursday with Del. Joseph F. Vallario Jr., chairman of the House Judiciary Committee, to share their concerns about the disparities in the way police are using their genetic databases, an aide confirmed.

To pass the law enabling DNA collection upon arrest, supporters agreed to require officials to automatically expunge the records of people who are not convicted or have charges against them dropped, soothing the concerns of civil liberties groups.

But not all the ways that police use DNA were considered at the time, Carter said, leaving some kinds of samples not subject to those privacy provisions. Lawmakers also did not include restrictions on the ways that local police can use their own DNA databases.

One concern raised by the Office of the Public Defender is that local databases, which include genetic information on thousands of homicide victims, could be used to tie blood relatives of those people to crimes. The statewide database does not include such information.

So-called familial searching has been used to solve cases in Colorado and California, but Stephen Mercer, chief of forensics at the Maryland public defender's office, said it can lead to crime victims being used as "genetic informants," and could deter them from seeking the help of police.

The Denver district attorney's office got a U.S. Justice Department grant to develop software to make comparing the DNA of family members easier. The district attorney offers the program to other agencies at no cost.

Lynn Kimbrough, a spokeswoman for the Denver office, said some Maryland law enforcement officials had been interested in using it until such comparisons were banned in the state law.

Five local Maryland police departments — in Baltimore and in Baltimore, Anne Arundel, Prince George's and Montgomery counties — have labs capable of processing DNA. A spokesman for Anne Arundel County police could not be reached for comment, but police at the other agencies said they do not do any familial searching.

Baltimore police spokesman Anthony Guglielmi said the department uses those samples to rule out some pieces of evidence from crime scenes.

He said the index of homicide victims also is used to close old cases, comparing in death people's information to crimes they might have committed in life.

Police get four drops of blood dried on a card from the office of the chief medical examiner. The practice of using DNA evolved out of trying to do simple blood matches to old crime scenes, according to Chief Medical Examiner David Fowler.

"I think victims expect police to use whatever tool at their disposal to bring justice in a case," Guglielmi said. "DNA is kind of the industry standard on solving crime."

Baltimore Sun reporter Erin Cox contributed to this article.

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