New Jersey Cops Are Using DNA Drawn From Newborns In Criminal Investigations

from the new-New-Jersians-are-material-witnesses dept

To be in law enforcement is to be almost criminally obtuse. (We haven’t criminalized that. YET! But when we do…)

They can’t stay out of their own way. The public may be willing to cut them some slack but they constantly make moves that dis-endear them to the people they’re supposed to be serving.

DNA evidence is considered the gold standard. It isn’t. But it’s considered to be. And now cops are using all the DNA they can to move investigations forward. Cops running DNA samples from crime scenes against samples taken from suspects who have been detained and informed of their rights? Fine.

Running samples against private DNA databases with sock puppet accounts in order to avoid scrutiny of their actions? Not cool. Running rape victims’ DNA through criminal databases? Definitely not cool.

And now there’s this: one more example of how little the law enforcement community cares about public perception. Here’s Corin Faife with the details for The Verge.

New Jersey police may have used blood samples taken from babies to investigate crimes, according to public defenders in the state.

According to a lawsuit filed by the New Jersey Office of the Public Defender (OPD), the practice came to light after a case in which New Jersey State Police successfully subpoenaed a testing lab for a blood sample drawn from a child. Police then performed DNA analysis on the blood sample that reportedly linked the child’s father to a crime committed more than 25 years ago.

The suspect then became a client of the OPD, which alerted the office to the techniques used to identify the man. The lawsuit, filed jointly by the OPD and the New Jersey Monitor, now seeks to compel the state of New Jersey to disclose information on the full extent of the practice.

There’s no opting out of this collection, as Faife points out. State law mandates blood collection from infants to screen them for 60 different disorders. These samples are processed by the state and data is passed on to parents and the state health system.

Supposedly, cops are not supposed to have access to these samples, at least not directly. But it does appear law enforcement is accessing these records indirectly, possibly by issuing subpoenas to the state health agency.

That’s what the New Jersey Office of the Public Defender and its co-plaintiff, the New Jersey Monitor, allege in their lawsuit [PDF] against the New Jersey Department of Health and the lab that processes these mandated samples. Both entities are seeking public records related to law enforcement’s access to this testing data — records the state has previously denied them access to.

Alarmed by this practice it strongly believes constitutes an illegal search, OPD seeks to learn how often State agencies are utilizing the Newborn Screening Laboratory as an investigatory tool for its prosecutions in order to sidestep the constitutional rights of defendants to be free from warrantless searches and seizures.

[…]

Defendants refused produce any redacted records, nor would they produce a Vaughn Index. Thus, they have deprived OPD of any information whatsoever regarding how widespread the forensic practice of utilizing newborn blood samples from the Newborn Screening Laboratory is. OPD needs this information to effectively defend their indigent criminal defendant clients from warrantless searches and seizures.

There’s definitely no informed consent before blood draws are taken. Nor are parents made aware these samples will be retained for an extended period of time. While the blood may be disposed of after testing, a “residual dried blood spot” (from which DNA can be obtained) remains in the hands of the Department of Health for 23 years. Parents are not informed of this extended storage period either.

As the lawsuit points out, the investigation of a 1996 “cold case” had generated a small list of suspects. But since the investigators did not have probable cause to obtain DNA from the suspects, it chose to approach the Dept. of Health to see what DNA it could obtain from samples still being stored by the agency. Working backwards from the newborn’s DNA, investigators honed in on one suspect. At no point did anyone appear to consider the Fourth Amendment implications of utilizing non-consensual blood draws from infants to work around warrant requirements for DNA samples from much older suspects.

Whether or not this was a one-off abridgment of rights is unknown. But the state’s refusal to turn over records suggests this isn’t an anomaly. If it was a single case, it could be brushed away as an ill-advised move by one investigator. But if it’s common practice — and there’s no reason to believe it isn’t, at least not at this point — there’s a whole bag full of “pattern and practice” litigation headed in the state’s direction.

If this litigation ultimately reveals this is common practice, it will again prove law enforcement’s highest calling remains “can,” rather than “should.”

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Comments on “New Jersey Cops Are Using DNA Drawn From Newborns In Criminal Investigations”

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16 Comments
That One Guy (profile) says:

Even newborns are targets of police exploitation, charming

Whether or not this was a one-off abridgment of rights is unknown. But the state’s refusal to turn over records suggests this isn’t an anomaly. If it was a single case, it could be brushed away as an ill-advised move by one investigator. But if it’s common practice — and there’s no reason to believe it isn’t, at least not at this point — there’s a whole bag full of “pattern and practice” litigation headed in the state’s direction.

With their utter stonewalling of requests for information relating to the practice the question is not have they done this before but how often, and the answer to that is almost certainly ‘a lot’.

As rightly pointed out were this a one time thing they would have said so to cover their backsides, by going completely silent they’ve strongly indicated that they’ve been doing it a good amount before this and likely will continue to do it as long as they can get away with it.

btr1701 (profile) says:

Re:

Alarmed by this practice it strongly believes constitutes
an illegal search, OPD seeks to learn how often State
agencies are utilizing the Newborn Screening Laboratory
as an investigatory tool for its prosecutions in order to
sidestep the constitutional rights of defendants to be
free from warrantless searches and seizures.

Except they’re not using the defendants’ DNA. They’re using someone else’s DNA. Even if doing so is ultimately held to be a 4th Amendment violation, it’s a violation of the baby’s rights, not the criminal defendants’ rights.

It’s well established law that one person can’t claim a violation of someone else’s rights as a defense.

If the cops bust into Bill’s house without a warrant and find evidence that Bob murdered someone, they’ve violated Bill’s rights, not Bob’s. Bill would have a legal cause of action against the government for their actions, but the evidence against Bob would be completely admissible against him at his murder trial.

Same thing here. The police might face some sanction for using the DNA of children but the evidence is nevertheless constitutionally admissible against third parties in their criminal trials.

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Jeroen Hellingman (profile) says:

Not only illegal, but potentially dangerous

By using these blood samples in this way, you not only violate rights, but you also undermine the willingness of parents to partake in such tests, which can have very dangerous results for the infants or mothers concerned (Rhesus antibodies, etc.), and for health monitoring. Not only should a total access ban to this information be in place, but police officers and others abusing it should be fired and imprisoned for endangering public health.

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Cowardly and Anonymous says:

Re:

Not only that – servers with such potentially useful information are a fantastic target for a hacker.

Given the stated purposes, I don’t see any reason for the program to perform any long-term storage of blood, let alone for over 20 years!

Truly a dystopian series of events. Even Kafka would be amazed.

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Coyne Tibbets (profile) says:

Perfect defemse

Let me get this straight: you got a match on the baby’s DNA, to DNA from the crime scene? Well, it’s obvious: the baby did it, not me.

Certainly there is a resonable doubt. You got two matches to the crime scene, me and the baby. It’s obvious that when you said the chances of s omeone else matching were 1 in 13 million, you were lying.

Even if the baby didn’t do it, how many more matches are there in this city? Two out of 13 million is twice as many matches as you claimed. How many is it really? Twenty in 13 million? More?

Cattress (profile) says:

The public health risks cannot be understated here, this is incredibly reckless and it probably is happening in other states, and with other tests.
Because of welfare reform in the 90s, unmarried mothers must undergo invasive questioning and provide all information she has on the father in order to request government assistance. Even though the father is listed on the birth certificate and contributing/ed to raising the child, if the parents weren’t married, a paternity test is required in most states. Who knows how much of that data is maintained in government databases and accessible to law enforcement. And I don’t think HIPAA covers this, or any of the circumstances mentioned in the article.
This creates a deterrent to seeking needed medical care and welfare assistance for children. And it deters good Samaritans from making living donations, like blood, plasma, bone marrow, and organs. All of this sort of data should be entirely walled off from all law enforcement, no exceptions. No justice can come from creating more innocent victims.

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