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.”