DNA links former cop to serial killings, rapesA DNA match ties a former police officer to some of the crimes committed by a California serial killer behind at least 12 homicides and 45 rapes throughout the state in the 1970s and ’80s, police officials announced Wednesday. (April 25)APWeeks after the San Francisco Police Department vowed to stop using victim DNA samples to identify suspects in crimes, the department’s internal records show officers can continue to do just that – but won’t be as transparent about how they found the DNA.The revelation comes as state officials, including the California Attorney General’s Office, said last week that no police departments should use victim DNA profiles to name them as suspects and that action could be taken against the San Francisco department if they continue to do so.San Francisco Police Department’s crime lab updated its protocols last month after the city’s District Attorney Chesa Boudin announced police had forwarded a criminal case for prosecution in which a retail burglary suspect’s DNA was matched to her 2016 rape kit DNA. Boudin said he dropped the case against the woman because it violated her Fourth Amendment rights, which protects “against unreasonable searches and seizures.”A USA TODAY report found the police department’s crime lab was not only storing sexual assault victim’s DNA through the last seven years, the department was also routinely searching suspect DNA for matches against DNA belonging to victims of other crimes, including children, as well as volunteers like consensual sexual partners who provided DNA to help isolate a suspect’s DNA in a rape case. All matches were reported to police investigators.At the time, San Francisco Police Chief Bill Scott told USA TODAY that the crime lab would immediately install “guardrails” and stop notifying investigators about hits of DNA belonging to a sexual assault victim – or any other victim – when running a suspect’s DNA through their local database.But the department’s updated procedures state that officials will continue to store and search victims’ DNA samples to solve unrelated criminal investigations but won’t identify matches to anyone outside the crime lab, except “on a case-to-case basis” if there’s no match with the FBI-maintained offender DNA database. The crime lab is run by the police department’s Bureau of Investigations.Scott told USA TODAY that he has emphasized to staff that victim DNA should not be shared with investigators.”It doesn’t matter what case it is, if it’s a serial killer,” Scott said. “No victim information will be shared with investigators. I’m not a scientist but I know what direction I gave. I know what confirmation I gave to my lab people, the chief of investigation is very clear, that it’s not to be done.”USA TODAY asked three leading experts in forensic science and DNA evidence to review the department’s updated Feb.18 procedures. They said they were appalled because it appeared the department was simply planning to continue the DNA match program with less transparency.The new details around the use of victim DNA in San Francisco has highlighted the lack of stringent standards and regulations of local DNA databases. It has also reignited discussion as to whether there’s an inherent conflict in a crime lab being run by law enforcement.In a statement, the California Attorney General’s Office told USA TODAY that it is “monitoring whether further action is necessary or appropriate” against the San Francisco Police Department. It added, “Bottom line: Victim DNA reference samples should never be used as criminal evidence.”The police department’s new protocols states it will strip out mentions of the database on their DNA reporting documents. Additionally, “no memos will be written and no emails will be kept in the case file,” but victim DNA will continue to be evaluated in case it contaminates other samples.In a statement to USA TODAY, Boudin said he was concerned the department’s new protocols “don’t actually stop this practice, but just attempt to hide it” and that it showed why legislation to address victim DNA was necessary.Mark Barash, an assistant professor and forensic science program coordinator at San Jose State University, said the simplest way for the police department to rectify the situation would be to stop retaining DNA profiles from victims and case-related volunteers.But telling staff “‘don’t report, don’t communicate’ – that’s literally a coverup,” Barash said. “They will most likely continue with this practice and that they’re trying to hide this.”The crime lab’s new guidance specifically goes against what law enforcement leaders called a first-of-its-kind memo released by the California Department of Justice on Tuesday that provides clarification on local law enforcement use of DNA databases. The state notes that its own crime labs use internal quality control databases, but that they do not include any samples from victim DNA.”The California Department of Justice has not found inclusion of victim reference samples in a QC database necessary for detecting contamination events,” the bulletin states. “Doing so, moreover, elevates the risk of violating the Fourth Amendment to the United States Constitution if those victim reference samples are utilized for any purpose that exceeds the scope of consent.”
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Victims ‘didn’t volunteer to be in a database’
The newly-updated department protocols note that “any casework specific information for these hits must be coded or redacted prior to discovery.”Scott said the department must reveal the local database exists and a match occurred in any legal discovery request, but the information under the policy ensures it is redacted so that no details about the victim leave the crime lab. Scott said the department is discussing whether it’s necessary to have DNA donors sign waivers for inclusion in the local database. They do not right now.The department’s crime lab’s director, Mark Powell, said the new procedures were a “stop-gap measure” and meant to remain in place as the department looks at creating a policy that would require them to get rid of DNA held after a certain period of time.Powell said the updated guidance emailed to staff was “very clear” that there is to be no reporting out of victim DNA. He also said the department can point to specific incidents where it found it helpful to store and search victim DNA to identify contamination of another unrelated DNA sample.”We’re all speaking different languages,” said Powell, when asked why the new policy didn’t simply tell people to stop in more simple language. “The lab staff understands when they get that email, what this means.”But Barlow noted that the new procedures simply require that any details referring back to the original case or origins of a local DNA database hit would be removed before attorneys received the evidence in a trial”The problem doesn’t go away simply because you hide it,” Barlow said. “They’re still doing the thing that they’re not allowed or shouldn’t be doing.”Searching rape kit DNA for matches in criminal cases is especially problematic, victims advocates say, because sexual assaults are already chronically underreported. Less than 23% of sexual assaults are reported to police, according to the Justice Department’s 2020 Criminal Victimization report.Robin Cotton, a top forensic DNA expert who is a member of the Massachusetts Forensic Science Oversight Board, said she was shocked when she read the updated procedures at USA TODAY’s request.”What? This sounds like they’re going to keep doing it, but they’re going to hide it,” Cotton said. She added that “as far as I know if you do it in the lab, you need to have a record of it in your file.”The new rules are “not OK,” Cotton said. “They still have a database of regular normal people that don’t know they’re in a database and don’t know how to get out of the database. And they didn’t volunteer to be in a database. They volunteered to give their sample to help solve one thing.”Bicka Barlow, a San Francisco-based defense attorney and former molecular biologist who specializes in DNA evidence, said the way the new protocols were written was “breathtakingly problematic.” “They basically say we will continue to do the thing we shouldn’t be doing, but we just won’t tell anybody about it,” Barlow said.She added that “looking at peoples’ DNA for various purposes is only permissible if there’s a compelling reason to do it” and requires probable cause for suspects in criminal cases. Barlow said any evidence gained would likely be illegal: “It’d be like getting a confession from someone illegally and then using that information to go out and find the murder weapon.”
Victims’ DNA samples stored for years in police database
San Francisco Police Department has launched its own internal investigation into the scope of its use of DNA belonging to victims and consensual partners. So far it has identified at least 17 other cases in which there has been suspect DNA matched to its local database – 11 of those matching rape kit DNA, San Francisco police Capt. Sean Perdomo told police commissioners Wednesday.Department officials said their database, which includes all DNA the department touches, is a “quality assurance” database. The term refers to a well-known best practice in forensic science for ensuring there is no contamination of DNA evidence with, for example, DNA belonging to lab staff, crime scene investigators or lab visitors. These individuals provide samples of their DNA to ensure their DNA can be ruled out if a suspect sample is contaminated.Powell told police commissioners that the department’s DNA database includes thousands of profiles collected since 2015. There is no way to remove a person’s DNA from the database, he said, but the department is looking at perhaps limiting its retention to two months.”The reason there’s so many samples in there, and from such a long period of time, is because when the database began, some of our cases could literally take 10 years,” Powell said.Multiple law enforcement and forensic experts told USA TODAY that what San Francisco Police Department’s crime lab has been doing by including all DNA gathered by the department in a database to run against suspect samples collected even many years later after the original victim’s case was closed is nontraditional and unusual.A 2016 civil grand jury review of San Francisco’s crime lab concluded that it must be made independent of the police department to reduce bias and errors and improve the lab’s credibility.Barash, who worked in law enforcement for nine years and was a quality assurance officer in a lab, said the department’s description is not how quality assurance work is done.Instead, it reads like an internal workaround. If in the future, police have a match through the local database involving a victim’s profile and a suspect in a separate case, the crime lab can “let law enforcement know about this, they can do their tricks and get to the person and get their DNA” in another manner, Barash said.”They’ve got this investigative lead from a database, but no one would know about that. It won’t be in the case or the report,” Barash said.
Lawmakers call for more protections for victim DNA
Jennifer Lynch, surveillance litigation director for the digital rights group, the Electronic Frontier Foundation, said equipment is so sensitive today that there doesn’t need to be blood to collect DNA from crime scenes, and without proper regulation, investigators can surreptitiously gather DNA from anyone, suspect or not, for upload and addition into a local database. “It’s really unclear to me why they’re calling something a quality assurance database, and that database is just a database,” she said.Boudin’s office has worked with California state Sen. Scott Wiener and a broad coalition of sexual assault survivor and criminal justice advocates to create legislation that ensures victim DNA won’t be used against them by law enforcement. Wiener, who introduced the legislation Monday, told USA TODAY the proposed legislation has already received significant support.What San Francisco’s crime lab has done shows “there is a significant loophole in state law that allows law enforcement to use victim DNA against the victim in the future,” Wiener said. “Our legislation will make clear that you can’t do that. If a victim is providing DNA in an investigation, that DNA cannot be used against that victim for unrelated crime in the future.”Jennifer Freyd, a professor emeritus at the University of Oregon who studies the impact of institutional betrayal on health, behavior and society, said using victim DNA to solve crimes can create deep psychological betrayal because people depend on the police and criminal justice system.”It feels like a police state and sting operation all wrapped up,” Freyd said. “There’s a sense of betrayal – people haven’t given their consent, they haven’t even been told how this information might get used. It feels like they’ve been tricked into something.”Tami Abdollah is a USA TODAY national correspondent covering inequities in the criminal justice system. Send tips via direct message @latams or email tami(at)usatoday.com