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Friday, October 3, 2003



Court rules DNA
database unconstitutional

The decision affects federal
parolees and prisoners who
have had samples taken


SAN FRANCISCO >> In a move that could affect hundreds of criminal cases, a three-year-old law that requires federal prisoners and parolees to provide DNA samples for an FBI database was declared unconstitutional yesterday by a federal appeals court.

A three-judge panel of the 9th U.S. Circuit Court of Appeals ruled that requiring blood samples for the database amounts to an illegal invasion of privacy because they are taken without legal suspicion that the convicts were involved in other crimes.

The court said that is a violation of inmates' Fourth Amendment rights against illegal searches. The samples "constitute suspicionless searches with the objective of furthering law enforcement purposes," Judge Stephen Reinhardt said.

The San Francisco-based 9th Circuit -- which covers Arizona, California, Hawaii, Oregon, Idaho, Washington state, Montana, Nevada and Alaska -- is the most overturned federal appeals court in the country. The court's three-judge panels are known for several contentious rulings, including one that declared the Pledge of Allegiance unconstitutional in public schools and a decision last month that postponed California's recall election. That ruling was later overturned by a larger 9th Circuit panel.

The ruling could have a sweeping impact on criminal cases in California and other states.

Blood samples taken from federal prisoners and those on supervised release have been used to convict hundreds of people, for crimes such as murder and rape. It was too early to say whether those convictions would survive, said Monica Knox, a deputy public defender of Los Angeles.

Knox also said the decision, if it survives, could nullify state laws that require the taking of blood from inmates and parolees.

FBI spokesman Paul Bresson said the bureau's database holds roughly 1.4 million genetic profiles, most of which came from prisoners and parolees. The FBI does not track the number of samples in the database that match physical evidence collected from unsolved crimes.

But state Attorney General Bill Lockyer said that has happened in California about 400 times, including one that led to the conviction of a man in the 1993 rape and murder of two San Diego youths.

Scott Erskine, 40, was serving a 70-year term on unrelated rape charges when his blood matched semen taken from the 1993 crime scene. Last year, his blood also was linked to evidence taken from the 1989 rape and slaying of a Palm Beach County, Fla., woman.

It was not immediately clear whether the decision would apply retroactively, meaning that those who have given blood could have it withdrawn from the databank.

The database was created as part of the federal DNA Analysis Backlog Elimination Act of 2000. Under the law, the FBI analyzes the DNA results and places them in a databank open to law enforcement nationwide.

The Justice Department did not comment on the court's 2-1 decision yesterday.

The case decided yesterday concerned Thomas Kincade, a California parolee previously convicted of bank robbery who refused to give a sample. A lower court judge had upheld the law.

Knox said she expected legal battles on whether the ruling, if it survives appeals, would be applied differently to parolees and those still in prison.

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