IAPE Evidence Blog

Tar­geted News Ser­vice
BYLINE: Tar­geted News Service

Wis­con­sin

Offend­ers No Longer in Cus­tody Or on Super­vi­sion Must Sub­mit Spec­i­mens Attor­ney Gen­eral Van Hollen Advises

The Wis­con­sin Attor­ney Gen­eral issued the fol­low­ing news release:

Attor­ney Gen­eral J.B. Van Hollen sent a let­ter today to Richard Raemisch, Sec­re­tary of the Wis­con­sin Depart­ment of Cor­rec­tions, explain­ing the legal oblig­a­tions of con­victed offend­ers to sub­mit DNA for inclu­sion in the databank.

The let­ter also dis­cussed options for obtain­ing DNA from those who are no longer in DOC cus­tody or on DOC super­vi­sion and rec­om­mends statu­tory changes to strengthen the law gov­ern­ing DNA submissions.

Con­clu­sions of the let­ter include:

* The oblig­a­tion to sub­mit a bio­log­i­cal spec­i­men does not expire. Even if the Depart­ment of Cor­rec­tions did not take a sam­ple when an offender was in prison or require the sub­mis­sion of a sam­ple when the offender was on super­vi­sion, offend­ers ordered or under a statu­tory require­ment to sub­mit a sam­ple are under a legal duty to pro­vide a
sam­ple at the office of the county sheriff.

* If the offender is not under DOC con­trol, DOC may attempt to secure an offender’s vol­un­tary com­pli­ance by direct­ing the offender to the county sher­iff for sub­mis­sion of a bio­log­i­cal specimen.

* The inten­tional fail­ure to pro­vide a bio­log­i­cal spec­i­men con­sti­tutes a mis­de­meanor. See Wis. Stat. 165.765. Because this crime is a con­tin­u­ing offense, the statute of lim­i­ta­tions should not impede pros­e­cu­tions of offend­ers pre­vi­ously required to sub­mit a bio­log­i­cal spec­i­men but who have failed to do so.

* DOC may com­pel the pro­duc­tion of DNA from an offender while the offender is in DOC cus­tody or under DOC super­vi­sion for an offense giv­ing rise to a duty to sub­mit a bio­log­i­cal spec­i­men, and may also use appro­pri­ate sanc­tions for the ongo­ing fail­ure to sub­mit DNA if the offender is on pro­ba­tion for an offense that does not inde­pen­dently give rise to the oblig­a­tion to sub­mit DNA.

Van Hollen’s let­ter noted that the col­lec­tion of a bio­log­i­cal spec­i­men is best per­formed at the onset, when an offender is in Depart­ment of Cor­rec­tions’ cus­tody or under its super­vi­sion for an offense that gives rise to the oblig­a­tion to pro­vide it. At that point, Van Hollen writes, the State’s author­ity to com­pel the sub­mis­sion of a bio­log­i­cal spec­i­men is most effec­tive. When the offender is no longer on super­vi­sion and has failed to sub­mit DNA, the state’s options are more lim­ited. Encour­ag­ing vol­un­tary coop­er­a­tion is appro­pri­ate, Van Hollen concludes.

Absent vol­un­tary coop­er­a­tion, the state may crim­i­nally pros­e­cute offend­ers or seek a con­tempt sanc­tion. Nei­ther option nec­es­sar­ily results in the pro­duc­tion of a sam­ple and both are poten­tially resource-intensive. Van Hollen stated that it would be desir­able for the law to cre­ate a non-criminal mech­a­nism to obtain an order to com­pel DNA sub­mis­sions with­out the need for fur­ther crim­i­nal process. He has been work­ing on these pro­posed changes that would revise and strengthen Wis­con­sin law relat­ing to the col­lec­tion of DNA.

A copy of the let­ter may be found at:

http://www.doj.state.wi.us/news/files/RaemischLetter2-25 – 10.pdf.

Addi­tional Background

The Depart­ment of Jus­tice oper­ates the state’s crime lab­o­ra­to­ries, which includes the State’s DNA data bank.

Cer­tain con­victed offend­ers, such as those in prison for a felony on or after Jan­u­ary 1, 2000, are required by statute or court order to sub­mit DNA sam­ples to the state crime lab­o­ra­to­ries for inclu­sion in the DNA data bank. Bio­log­i­cal spec­i­mens of offend­ers are taken by the Depart­ment of Cor­rec­tions or a county sher­iff. Spec­i­mens are gen­er­ally obtained through a buc­cal swab. Those sam­ples are then sent to the state crime lab­o­ra­to­ries, where a pro­file is gen­er­ated (gen­er­ally through a con­tract lab), the work is reviewed, and then the pro­file is uploaded into the DNA con­victed offender data bank. Pro­files con­tained in a foren­sic data­base (com­prised of DNA from crime scenes) and pro­files gen­er­ated from indi­vid­ual case inves­ti­ga­tions are com­pared against the pro­files in the DNA data bank. A “hit” to the con­victed offender data bank links the case with the con­victed offender, and thus the data bank is a pow­er­ful tool to iden­tify suspects.

Con­tact: William A. Cosh, 608/266‑1221

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Inter­na­tional Asso­ci­a­tion for Prop­erty and Evi­dence
“Law Enforce­ment Serv­ing the Needs of Law Enforce­ment“
www.IAPE.org

The Raw Story, rawstory.com
BYLINE: Daniel Tencer
Link to Article

CA, CO, KS, NY, MO & WI

In their effort to beat the statutes of lim­i­ta­tions that pre­vent peo­ple from being charged with a crime after a cer­tain amount of time has passed, pros­e­cu­tors in some parts of the US are try­ing a new tac­tic: They’re charg­ing half-eaten food, saliva-crusted glasses or other inan­i­mate objects with the crime.

That’s because pros­e­cu­tors now have DNA evi­dence as a way to get around statutes of lim­i­ta­tions. One way to make sure a crim­i­nal doesn’t get away by hid­ing long enough is to sim­ply charge the DNA itself, and wait until the DNA is matched to an actual person.

Laura Bauer of the Kansas City Star reported Mon­day that pros­e­cu­tors “in a few pock­ets of the coun­try” have begun issu­ing “John Doe” arrest war­rants that iden­tify only a person’s unique DNA sig­na­ture. Once the arrest war­rant on the DNA is in place, the statute of lim­i­ta­tions on the applic­a­ble crime will no longer run out. Bauer reports:

Since 2002, Jack­son County [Mis­souri] pros­e­cu­tors have filed 28 John Doe complaints.…

When­ever a bur­glary, rob­bery or van­dal­ism with DNA evi­dence is near­ing its statute of lim­i­ta­tion, police alert [pros­e­cu­tor Ted] Hunt’s office, and pros­e­cu­tors file a no-name charge.

By fil­ing these com­plaints, and charg­ing the DNA instead of a named sus­pect, pros­e­cu­tors put cases on hold until they know whose genetic fin­ger­print they charged. These cases oth­er­wise wouldn’t be solved within the statute of lim­i­ta­tions, and the sus­pects would be let off scot-free.

But it may be more than “a few pock­ets of the coun­try” that are try­ing out this tech­nique. Accord­ing to the Web site of the dis­trict attor­ney for Den­ver, Col­orado, “John Doe” DNA war­rants have been used at least in Cal­i­for­nia, Col­orado, Kansas, New York and Wisconsin.

“We may have 2 1/2 years left” on the statue of lim­i­ta­tions, Den­ver Dis­trict Attor­ney Mitchell Mor­ris­sey told the KC Star. “It doesn’t mat­ter, we file the case. … We freeze every­thing in place. … Oth­er­wise, the bad guy gets away.”

Last month, the Supreme Court of Cal­i­for­nia ruled that no-name war­rants based on DNA evi­dence are allowed under state laws. Accord­ing to Kelly Lowen­berg at the Stan­ford Law School blog, the court ruled that DNA-based war­rants are spe­cific enough to be con­sti­tu­tional, and that they do “stop the clock run­ning” on statutes of limitations.

But while this new crime-fighting tech­nique may be use­ful to pros­e­cu­tors, it raises ques­tions about the rel­e­vance of statutes of lim­i­ta­tions on crimes in the age of DNA. Defense attor­neys argue that stat­ues of lim­i­ta­tions exist for a rea­son — if a per­son is charged with a crime after too long a period, it may be dif­fi­cult to defend against the charges. “People’s mem­o­ries fade” and “wit­nesses move and can’t be found,” Bauer reports at the KC Star.

“If a defen­dant in a prop­erty crime is arrested 20 years after the fact, based on his DNA, he’s not able to defend him­self effec­tively,” Kansas City defense attor­ney J.R. Hobbs told the KC Star.

And the like­li­hood of the long arm of the law reach­ing even fur­ther grows as DNA data­bases in the US and around the world expand.

Last year, the FBI announced it would start col­lect­ing DNA sam­ples from peo­ple who weren’t charged with a crime. Thus far, only peo­ple charged with an offense had their DNA taken. It’s esti­mated that the FBI’s data­base will grow at a rate of 1.2 mil­lion DNA pro­files per year from now on, com­pared to a growth rate of about 80,000 per year prior to the new pol­icy. The FBI already has an esti­mated 6.7 mil­lion DNA pro­files on record.

Some civil rights advo­cates worry about the impli­ca­tions to pri­vacy and per­sonal free­dom from a grow­ing reliance among gov­ern­ments on DNA evi­dence. For instance, in the United King­dom it was alleged last year that police forces were ran­domly arrest­ing peo­ple sim­ply to get their DNA on to the books. Some accused British police forces of racial pro­fil­ing in that effort, not­ing that three-quarters of Britain’s black males under the age of 35 are now on the DNA database.

The KC Star’s Bauer notes that DNA is now being used in a much wider array of crim­i­nal inves­ti­ga­tions than has been the case in the past. While DNA test­ing was usu­ally reserved for mur­der and rape inves­ti­ga­tions, its easy avail­abil­ity today means it is being used in rob­bery and even van­dal­ism cases.

Den­ver police are so aggres­sive that they worked on a case in which a car win­dow was bro­ken and just $1.40 in coins were stolen.

A drop of blood was found on a car seat. When no match came up in the data­base, they went even fur­ther, check­ing for near-matches in what’s called a “famil­ial DNA” search.

The name of a con­victed felon came up. In the end, the felon’s brother was arrested.

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Inter­na­tional Asso­ci­a­tion for Prop­erty and Evi­dence
“Law Enforce­ment Serv­ing the Needs of Law Enforce­ment“
www.IAPE.org

www.nbc26.com
Link to Article

Wausau, WI

WAUSAU, Wis. (AP) — A 32-year-old New Lon­don man sen­tenced to four years in prison for run­ning over a pedes­trian while dri­ving drunk is get­ting a new trial.

The 3rd Dis­trict Court of Appeals ruled Tues­day the jury that con­victed Michael Nol­len­berg had an incom­plete pic­ture of the case because of impor­tant miss­ing evi­dence. The panel says the inter­ests of jus­tice require Nollenberg’s homi­cide by intox­i­cated use of a vehi­cle con­vic­tion be overturned.

Nol­len­berg was sen­tenced to prison for the Sept. 24, 2005, crash that killed 22-year-old James Weber on a rural Out­agamie County road.

The appeals court says the jury never heard evi­dence that the low beam lights on Nollenberg’s pickup truck com­plied with state law in illu­mi­nat­ing the road 104 feet ahead. The jury only heard evi­dence that the low beams were mis­aligned and did not com­ply with fed­eral car man­u­fac­ture standards.

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Inter­na­tional Asso­ci­a­tion for Prop­erty and Evi­dence
“Law Enforce­ment Serv­ing the Needs of Law Enforce­ment“
www.IAPE.org