Effects of Supreme Court Ruling allowing DNA samples taken from all convicted felons. What about Ancestry.com?
State v. Roach New Jersey Appellate Division May 8, 2019 (Not Approved for Publication)
Submitted by New Jersey Sex Crime Lawyer, Jeffrey Hark.
Summary: All 50 states and the federal government have laws that have been held to be constitutionally acceptable allowing law enforcement to take a DNA sample (modern fingerprint) from a defendant at the time of a conviction. In 2013 the United States Supreme Court ruled that the police are allowed to take such a sample upon the arrest of a person for a ‘serious’ crime. This case reflects the practical effect of what happens with that DNA sample and how law enforcement uses it! Also, with the creation of 23 & ME and Ansestry.com police are also turning to these ‘ancillary’ DNA repositories (for which a person who sends in their DNA does not possess and right of privacy nor have standing to preclude a family member’s DNA from being inspected by the police without a search warrant) to compare crime scene DNA to identify a perpetrator of crimes!
Issue: 2019 Right to Privacy??!!
Facts:
The facts and procedural history were already canvassed in our prior opinion and the Supreme Court’s opinion. We repeat portions relevant to the present appeal. The victim, H.H., testified at the jury trial that when she was sixty-four years old, she lived in a two-story townhouse in North Brunswick. H.H. testified that she awoke at approximately 1:30 a.m. on November 5, 2005, to find a man sitting on her bed, holding a pointed object to her neck and telling her to follow his orders so she will not “get hurt.” The man then demanded money. When H.H. said she had some downstairs, they both went downstairs to get it while the man remained “very close” to her with the pointed object in his hand.
Once downstairs, H.H. opened a kitchen drawer for the man, but when she went to lift up the cutlery tray under which money was hidden, the man told her not to touch it. He lifted up the tray instead and took the money. Then the man ordered her back upstairs and told her to lie face-down on the bed. According to H.H., the man proceeded to sexually assault her. After the man fled the scene, H.H. called the police. Roach, 219 N.J. at 61.
North Brunswick Police Officer David Incle responded to the scene. The officer took H.H. to a hospital and then to a rape crisis center, where Registered Nurse Eileen Aiossa performed a forensic examination and prepared a sexual assault kit. During this examination, Aiossa took fingernail, oral, vaginal, and anal swabbings for DNA analysis. Aiossa also collected dry secretions from the inner aspect of H.H.’s left and right thighs. Finally, Aiossa collected head and pubic hair combings, an external genital specimen, and the nightgown H.H. was wearing when she was sexually assaulted.
Aiossa also observed several injuries on H.H. Specifically, Aiossa saw a cut one-and-a-half centimeters long on the left side of H.H.’s neck and a cut a half-centimeter long on her neck’s right side. Aiossa also observed two tears in H.H.’s vaginal opening, as well as fresh blood. Aiossa individually sealed each of the collected specimens, and put the sealed specimens in a standardized sexual assault kit. She then gave this kit to Patrolman Incle. After receiving the rape kit from Aiossa, Patrolman Incle brought both H.H. and the rape kit back to the North Brunswick Police Department. The rape kit specimens were delivered to the State Police Forensic Laboratory (“the State Lab”). H.H. was interviewed by Lead Investigator Paul Miller from the Middlesex County Prosecutor’s Office. H.H. described her attacker to the police as “slim, soft-spoken, and taller than she.” Id. at 62. She was unable to identify him because she had not seen his face.
After investigating H.H.’s residence and the surrounding area, the police spoke to neighbors who initially identified a male “E.A.” as a potential suspect. A buccal swab was obtained from E.A. and sent to the State Police Lab for analysis. Ibid. Defendant was thereafter developed as a suspect, based initially on a tip from a confidential informant. Upon learning that defendant lived less than a mile away from H.H., investigators went to his residence to talk to him. Defendant was not home when the investigators arrived, and Investigator Miller left his business card. Several days later, Miller received a phone message from defendant denying any knowledge about the crime. Defendant refused Miller’s request to voluntarily submit a buccal swab sample.
Miller testified that, after defendant refused to provide a sample, he realized that a previous DNA sample from defendant was already in the Combined DNA Index System (“CODIS”) because defendant was a convicted felon. Miller accordingly asked the State Lab to compare the DNA sample taken from H.H. to defendant’s prior sample in CODIS. The State Lab informed Miller that defendant’s previous DNA sample matched the sample taken from H.H., and defendant was subsequently arrested. Pursuant to a court order, investigators obtained defendant’s fingerprints and a new buccal swab sample, which was used to again confirm the CODIS match, and as evidence in the trial.
Charles Williams, a forensic scientist in the Biochemistry Department of the State Lab, tested the items in the sexual assault kit for the presence of blood and sperm. Id. at 62. According to Williams, “the vaginal slide tested positive for sperm, the external genital specimen and anal swab tested positive for blood, and the dried secretions from H.H.’s thighs tested positive for both blood and sperm.” Ibid. Those specimens were passed along to the DNA Department of the State Lab along with H.H.’s buccal swab. Ibid.
Thereafter, Lydia2 Schiffner, a forensic scientist with the DNA Department of the State Lab, received the items from H.H.’s sexual assault kit, as well as the buccal swabs taken from H.H. and E.A. Id. at 64. Specifically, Schiffner analyzed H.H.’s buccal swabs, vaginal swabs, anal swabs, and swabbings from the left and right-thigh areas and generated DNA profiles from those swabs. Schiffner performed a differential extraction on each specimen to separate the sperm cells from the skin cells, creating separate sperm-cell fractions (“SCF”) and non-sperm-cell fraction (“NSCF”) samples from each specimen. Ibid.
Based on the analysis that Schiffner performed, she was able to create a full DNA profile for the individual who had contributed the sperm cells to the specimens taken from H.H., as well as DNA profiles for H.H. and E.A. from their respective buccal swabs. Id. at 64. Schiffner’s report concluded that E.A. was excluded as a possible contributor to the DNA profiles from the sperm cell fractions of the inner thigh samples. Ibid.
After Schiffner generated her report in December 2005, she relocated to a distance state and the H.H. file was assigned to Jennifer Banaag, another forensic scientist in the DNA Department of the State Lab. Ibid. Banaag eventually testified for the State at trial as an expert in DNA analysis.
Banaag reviewed Schiffner’s entire case file and, as she put it, “independently” agreed with Schiffner’s analysis. Banaag testified that Schiffner analyzed the swabs from H.H. and came up with a DNA profile of a suspect who was the secondary contributor (H.H. being the primary contributor) to the DNA recovered from H.H.’s thigh swabs. In the meantime, Banaag analyzed the DNA taken from defendant’s buccal swab and generated a full DNA profile for him. Ibid. Banaag testified that her DNA analysis revealed that defendant’s DNA matched that of the secondary contributor to the secretion found on the two thigh swabs from H.H. in thirteen locations of alleles.
Banaag testified that the DNA profile found in defendant’s samples was estimated to occur in only one in approximately 1.3 quintillion African Americans, one in 339 quintillion Caucasians, and one in 7.42 quintillion Hispanics. Ultimately, Banaag concluded, “within a reasonable degree of scientific certainty,” that defendant was the source of the DNA taken from H.H.’s thigh swabs. Ibid.
