Do NOT consent to give any DNA EVER!!!
Submitted by New Jersey Criminal Lawyer, Jeffrey Hark
Coming Soon to a Police Station Near You: The DNA ‘Magic Box’
With Rapid DNA machines, genetic fingerprinting could become as routine as the old-fashioned kind. But forensic experts see a potential for misuse.
BENSALEM, Pa. — They call it the “magic box.” Its trick is speedy, nearly automated processing of DNA.
“It’s groundbreaking to have it in the police department,” said Detective Glenn Vandegrift of the Bensalem Police Department. “If we can do it, any department in the country can do it.”
Bensalem, a suburb in Bucks County, near Philadelphia, is on the leading edge of a revolution in how crimes are solved. For years, when police wanted to learn whether a suspect’s DNA matched previously collected crime-scene DNA, they sent a sample to an outside lab, then waited a month or more for results.
But in early 2017, the police booking station in Bensalem became the first in the country to install a Rapid DNA machine, which provides results in 90 minutes, and which police can operate themselves. Since then, a growing number of law enforcement agencies across the country — in Houston, Utah, Delaware — have begun operating similar machines and analyzing DNA on their own.
The science-fiction future, in which police can swiftly identify robbers and murderers from discarded soda cans and cigarette butts, has arrived. In 2017, President Trump signed into law the Rapid DNA Act, which, starting this year, will enable approved police booking stations in several states to connect their Rapid DNA machines to Codis, the national DNA database. Genetic fingerprinting is set to become as routine as the old-fashioned kind.
Law-enforcement officials said that the device had provided leads in hundreds of cases, helping to facilitate arrests and exonerate falsely accused individuals. Members of the Rapid DNA team in the Orange County, Calif., district attorney’s office said that some robbers were identified so quickly that they were caught still holding stolen goods. Rapid DNA machines were used to help identify victims of the recent wildfires in Northern California.
But already many legal experts and scientists are troubled by the way the technology is being used. As police agencies build out their local DNA databases, they are collecting DNA not only from people who have been charged with major crimes but also, increasingly, from people who are merely deemed suspicious, permanently linking their genetic identities to criminal databases.
“It’s a lot harder to resist the temptation just to run some people’s DNA, just to see if there’s anything useful that you get out of it,” said Erin Murphy, a law professor at New York University and author of “Inside the Cell: The Dark Side of Forensic DNA.” That approach challenges the “fundamental way we’ve structured liberty in our constitutional order.”
Moreover, there is little agreement on which types of genetic material should be run through the device. Valuable genetic evidence is likely to be rendered useless if handled by nonexperts, critics say, and police officers risk being misled by the results of Rapid DNA analysis.
“There are not the same standards and rules and safeguards that are in place for the national database,” said Michael Coble, the associate director of the University of North Texas Center for Human Identification. “Who is going to change that? I don’t know.”
If the Rapid DNA system has flaws, now is the moment to address them, many experts argue. Peter Stout, president of the Houston Forensic Science Center, was left with concerns after completing a Rapid DNA pilot program with the Houston Police Department last February.
“We need fast and cheap,” said Dr. Stout. “It also needs to be right.”
Borrowing rules, inventing others
The Rapid DNA machine in Bensalem is about the size of a desktop computer. When it arrived, it was given its own office; a framed photo of the department’s displaced star, the drone, hangs nearby.
So far, the machine has provided leads in a few dozen investigations. Detective Vandegrift is its main operator, when he is not busy running the department’s social-media accounts, one of his many responsibilities.
“I barely need a pulse to use this instrument,” he said. To illustrate the point, he selected a sample from a 52-year-old Bensalem resident who had been pulled over the previous day for running a red light.
Traditionally, forensic DNA analysis has been carried out in accredited labs, by forensic scientists. In contrast, Detective Vandegrift began operating the Rapid DNA machine after several hours of training by IntegenX (now Thermo Fisher Scientific), the manufacturer of the device. Unlike DNA labs, Rapid DNA machines do not have rigorous protocols governing the handling of samples.
“There really are no actual rules written anywhere,” Detective Vandegrift said. He has been working to devise some, by consulting with a lab. After donning a pair of latex gloves, he opened an envelope, removed a cotton swab bearing cheek cells from the Bensalem driver, and placed it in a cartridge the size of a smartphone.
When the man was pulled over, the police found an outstanding warrant for retail theft. He was arrested and asked if he would consent to provide a DNA sample.
To collect DNA, police in Pennsylvania must obtain consent from people under arrest. Ninety percent of those asked say yes, said Fred Harran, director of public safety for the Bensalem police; it was Mr. Harran who encouraged the department to take the lead in DNA policing. Asked why so many people would consent to give DNA, he said: “I have no idea. But criminals do stupid things.”
Of the dozens of cheek swabs that officers in Bucks County collect each week, three to five are selected for Rapid DNA processing. The driver’s sample was a good candidate because a string of vehicle break-ins and car thefts had been reported near his home. His police file suggested possible involvement, Detective Vandegrift said: “If he hits to a burglary, we’ll charge him and lock him up.”
A DNA sample is most useful if an agency has a large database for comparison. Even before the “magic box” arrived in Bensalem, Bucks County had built up one of the biggest local DNA databases in the country. It contains around 12,000 individual profiles, as well as 13,000 still-unidentified profiles extracted from crime scenes.
Few law-enforcement agencies have such a database, but a new incentive to invest in Rapid DNA is emerging. The F.B.I. is setting up the infrastructure to enable select police booking stations, initially in five states — Arizona, California, Florida, Louisiana and Texas — to upload genetic profiles extracted from cheek swabs directly to the national DNA database.
A suspect’s DNA then could be compared quickly against evidence from hundreds of thousands of unsolved crimes across the country. In under two hours, a person in custody for stealing a laptop could be identified as a long-sought serial killer.
Can a machine police itself?
Detective Vandegrift took the cartridge containing the cotton swab and inserted it into the console of the Rapid DNA machine. Numbers began ticking down on the screen, signaling that a series of chemicals was transforming the driver’s cheek cells to snippets of genetic code.
“What happens in that magic box is the same exact science that’s being used in big labs,” said Detective Vandegrift. “It’s just all miniaturized.”
Most scientists would agree, if the samples are cheek swabs collected from an individual. But increasingly, investigators are using the machine to analyze crime scene evidence.
Investigators with the Utah attorney general’s office and police in New Castle County, Del., have reviewed DNA swabbed from weapons to see if they were linked to particular suspects. Detective Vandegrift and the 15 other detectives he has trained are using their device to process blood, chewing gum and cigarette butts from crime scenes.
There are various models of Rapid DNA machines, by manufacturers such as Thermo Fisher Scientific and ANDE. But they were not designed to analyze crime-scene evidence, numerous scientists said. Dr. Coble, of the University of North Texas, said processing DNA from a cheek swab was like reading the children’s book “Run Spot Run,” whereas reading crime scene DNA was like “reading Shakespeare in Old English.” (Among other complicating factors, crime-scene samples often contain more than one person’s DNA.)
“To say they haven’t been validated in the same way doesn’t mean it’s an inappropriate use of the technology,” said Melissa Schwandt, a senior application scientist at ANDE. Vince Figarelli, the superintendent of the Arizona Department of Public Safety crime lab, emphasized the benefit to police.
“You’ve solved the crime that day rather than waiting six months, eight months or years to get through lab backlogs,” he said. He added that when Rapid DNA is used in Arizona to analyze crime-scene DNA, identical samples are sent to a lab for backup verification. In Orange County, forensic scientists operate the device.
If a sample is too complex, the machine typically will not generate a file. Samples analyzed with Rapid DNA are mainly used to generate investigative leads, and are rarely used in court.
The use of Rapid DNA analysis has raised concerns in other parts of the world. In a 2017 report, the Swedish Forensic Center explained that it had begun and then prematurely halted a Rapid DNA trial, in part because nearly 25 percent of the blood samples failed to create usable profiles. The sample is consumed each time, so a failure effectively destroys the evidence.
More troubling, one of the 155 blood samples produced a faulty profile. “The instrument did not warn or display any errors,” the report stated. “Without a manual review, the incorrect DNA profile could in a real case have been accepted and used in casework or uploaded to the DNA database.”
A suspect, or just suspicious?
Codis, the national DNA database, is so tightly regulated by the F.B.I. that police sometimes complain that it is useless. Under the bureau’s new Rapid DNA initiative, police may upload to Codis only samples taken from individuals, and only for select crimes. The specifics are determined by state law and enforced by the F.B.I.
In contrast, county DNA databases are unregulated. In Bucks County, the DNA database has begun to include genetic material from people whom police consider “even just a suspicious subject,” Detective Vandegrift said. Mr. Harran called such cases “one of the greatest uses of this instrument.”
He described a hypothetical scenario: “Three o’clock on a Tuesday morning, we get a 9-1-1 call. Somebody wakes up, their dog is barking, their motion lights came on. They see this guy in their driveway.”
Previously, even if the man was charged with loitering or trespassing, he would have been released within hours. Now, Detective Vandegrift said, “We’ll say, ‘Listen, we’ve had stuff in the area. Would you mind giving us consent to take your DNA, so we can rule you out for committing any crimes?’”
He continued: “We swab their mouth and we put it into the magic box. Ninety minutes later, it hits to two burglary scenes. Now we got him for felonies, and he’s going to jail.”
Erin Murphy, of New York University, expressed concern with this style of policing. An investigative approach that “starts with everybody’s a suspect, and then let’s go see if we can find a crime they’ve committed — I think that’s a deeply problematic inversion of how we do things,” she said.
Ms. Murphy added that this new type of policing was likely to exacerbate racial biases in the criminal justice system. Already, African-Americans have been considered “suspicious” for napping in a college dorm, barbecuing in a public park and giving change to a homeless man.
Mr. Harran called this criticism “total nonsense.” His officers do not target particular groups for DNA collection, he said: “You have nothing to fear if you’re not going to be a criminal.”
After Detective Vandegrift uploaded the Bensalem’s driver’s genetic file to the county database, he waited. Would it connect to a crime? “It’s actually pretty exciting when you get a DNA hit,” he said. Three minutes later a message appeared on his phone: “No matches found.”
“It is what it is,” he said, as the machine signaled it was ready for the next swab.