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Op-Ed: DNA Database Is Not an Exact Science (Albany Times-Union)

By Robert A. Perry — You have witnessed the scene on television many times: a scrap of paper or fabric is discovered at a crime scene. The next thing you know, a lab technician has extracted a DNA sample from the evidence, which is run against the DNA of offenders in the state’s database.

A perfect match. The culprit is sent off to prison.

Now, the state Legislature is considering a proposal, supported by Gov. Eliot Spitzer, that would require every person convicted of a crime — including low-level misdemeanors — to submit a DNA sample to the state’s database.

There is at least one major problem, however, with the television version of crime-fighting: DNA evidence is not infallible.

The collection and analysis of forensic DNA evidence is highly susceptible to human error, but this scientific fact has not even been considered in the debate over the size and scope of the state’s DNA database.

To be sure, under optimum circumstances DNA is an extraordinarily precise forensic tool. But interpretation is involved in the analysis of a DNA sample; and this interpretation can be highly subjective — and wrong.

What’s more, the collection, processing and handling of DNA samples introduces many opportunities for error. Professor William C. Thompson, a scientist and a lawyer, has documented a shockingly high incidence of errors in labs throughout the country because of flawed analysis, cross-contamination and mislabeling of samples.

The consequences of such errors can be grave. Consider the example of the Washington State Patrol Laboratory, which contaminated a DNA sample obtained from the scene of a rape with the DNA of a juvenile offender that was stored at the same lab. Analysts at the lab had been using the juvenile’s DNA sample in a training exercise when it was exposed to the sample from the rape case.

The juvenile was identified through a DNA match as the likely perpetrator of the rape. Fortunately, the crime in this instance was an old case. The alleged rapist would have been a young child at the time the rape occurred. But for the age discrepancy, however, an innocent person may well be serving time now for a crime he did not commit. And the sole cause of that wrongful conviction would have been the state’s careless handling of a juvenile’s DNA.

There is good reason for concern about the integrity of New York’s DNA database.

Even before the Legislature expanded the database in 2006, the Commission Of Investigation (appointed by Gov. George Pataki) reported that the state’s forensic labs lacked qualified analysts. Recent news accounts report a backlog of 54,000 DNA samples that need to be analyzed, which will require the state to outsource some of the lab work.

When a system of DNA testing undergoes massive expansion, as proposed, the potential for error inherent in that system will also increase. Existing law and current practices do not provide adequate protections against such error. For example, New York law does not even require external blind proficiency testing of DNA laboratories.

The Legislature must also recognize that to the extent error and abuse enter into the operation of the state’s DNA database, the consequences — including wrongful prosecution and conviction — will be borne overwhelmingly by persons of color. The criminal justice system is not race-neutral. The gross racial disparity in the population incarcerated for drug offenses is but one example of this fact.

Before undertaking any further expansion of the state’s DNA database, legislators must ensure there is sufficient regulatory oversight to protect the privacy and due process rights of individuals whose DNA is in the possession of the state.

Robert A. Perry is legislative director for the New York Civil Liberties Union.

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