Jan Ransom and Ashley Southall

Although it did not match evidence found at a crime scene, his DNA was entered into the city’s genetic database. To have it removed, the child’s family had to petition a court and file an appeal, a process that took more than a year. The boy was 12.

The city’s DNA database has grown by nearly 29% during the past two years, and now has 82,473 genetic profiles, becoming a potentially potent tool for law enforcement but operating with little if any oversight.

The New York Police Department has taken DNA samples from people convicted of crimes, as well as from people who are only arrested or sometimes simply questioned. The practice has exposed the Police Department to scrutiny over how the genetic material is collected and whether privacy rights are being violated, civil liberties lawyers said.

A growing number of law enforcement agencies throughout the country — including police departments in Connecticut, California and Maryland — have amassed genetic databases that operate by their own rules, outside of state and federal guidelines, which tend to be far more strict.

According to a 2013 survey, 30 states and the federal government permitted the analysis of DNA samples collected from individuals who are arrested or charged, but not convicted, of certain crimes. These databases generally did not include low-level offenders.

New York state does require a conviction before someone’s DNA can be included in the state-operated DNA databank, but the city’s database is not subject to state regulation.

The rapidly expanding DNA database in New York, which the Office of the Chief Medical Examiner has maintained since it was established in 2009, provides another striking example of the Police Department’s ability to adopt advancing technology with little scrutiny. The department also has built a giant facial recognition database and has been loading thousands of arrest photographs of children and teenagers into it.

The Police Department’s chief of detectives, Dermot F. Shea, said that officers were engaging in legally permitted law enforcement tactics in building the database.

“We are not indiscriminately collecting DNA,” he said. “If we did, it would be a database of millions and millions.”

Police officials also point out the database has been used to capture scores of violent criminals and to exonerate the wrongly accused.

About half the profiles in the database are from evidence collected from crime scenes. “We use DNA as a truth-finding mechanism,” Deputy Chief Emanuel J. Katranakis said. “It’s unbiased.”

Still, the DNA database, known as the Local DNA Index System, has grown with the addition of DNA from cigarettes, coffee cups, water bottles and other objects touched by people during interviews, even if they are never arrested or the charges are later dismissed.

About 31,400 of the DNA profiles in the city’s database came from people who were arrested or merely questioned in connection with a crime, but may not have been convicted, according to the Legal Aid Society, which obtained details about the database through a Freedom of Information Act request.

One of those was the 12-year-old whose DNA was collected from a straw he used while talking to the police in March 2018. The felony charge against him was eventually dropped, but his DNA remained in the database for more than a year, his lawyer, Christine Bella, said.

The legal ordeal of getting it expunged has left his mother distraught with worry about how her son will view the police going forward. The boy himself has “moved on with his young life,” Bella said.

Some civil liberties lawyers assert that the methods used to add to the database can violate a core constitutional principle, enshrined in the Fourth Amendment, that the police cannot take someone’s DNA without probable cause to suspect that they did something illegal.

“It’s essentially saying, ‘Give us your entire genome, even though we don’t have any reason to believe you have committed a crime,’ ” said Erin E. Murphy, a New York University law professor who has written about DNA databases and DNA profiling.

Terri Rosenblatt, a staff lawyer with the Legal Aid Society, said the practice of taking DNA from water bottles and cigarettes that are offered during interviews, and then loading them into the database, also has undermined public confidence in the police.

“We talk about community policing and the idea that communities should trust their police departments, but all of these kinds of actions erode that trust,” she said.

Defense lawyers have said that the database’s rapid expansion stems, in part, from an aggressive push by the Police Department to collect DNA from every firearm police recover in order to strengthen prosecutions.

The role of the DNA database in investigations became a flashpoint in the trial of Chanel Lewis, a Brooklyn man convicted in April of murdering Karina Vetrano, a jogger in Queens.

Lewis’ defense lawyers had argued that DNA evidence collected from the crime scene was tainted and that detectives had conducted “a race-biased dragnet.”

Lewis was asked to give a DNA sample, based largely on a police lieutenant’s hunch. He was charged with murder after his profile matched DNA found on the victim’s body and cellphone.

But before his arrest, detectives had sought saliva samples from more than 360 black men who had been previously arrested or questioned in parts of Queens and Brooklyn.

Though the DNA of those men did not match a sample found on Vetrano’s body, it was still entered into the city’s database and can now be tested, indefinitely, against evidence found at crime scenes throughout the city, defense lawyers said.

The police said that, in most cases, they gained consent before taking DNA samples. But in interviews, several men contacted by the police during the Vetrano investigation said that detectives tried to cajole, bully and threaten them into giving a DNA sample. Some gave in.

Luis Ortiz, a public defender who represented one of the men, said the police arrested his client on a marijuana-related offense and kept him jailed for a day in a Queens precinct until he agreed to a saliva sample. The man, who requested that his name not be published to protect his privacy, said one detective told him, “We know it wasn’t you, but we want to make sure.”

“He felt powerless and like he didn’t have any choice,” Ortiz said.

Eric Bellamy, 39, said four detectives arrived unannounced at his home in Brooklyn in late 2016 and explained that they wanted a sample of his DNA to eliminate him as a suspect in a murder investigation. Stunned, he refused because the detectives did not have a warrant.

Bellamy recalled one of the detectives said, “If you’re innocent, what’s the problem?”

Maurice Sylla, 55, said detectives came to his home in Brooklyn in August 2016 seeking his DNA. He was not home, but he said the police asked his niece intimidating questions about the family’s immigration status. The investigators “had no reason to invade my privacy,” he said.

Others questioned during the Vetrano investigation included Amaral Bordenave, 26, who agreed to give a urine sample after the police arrested him on an unrelated gun possession charge, and Justen Henderson, who consented to have his cheek swabbed for DNA after being arrested on a misdemeanor assault charge.

Henderson said he initially declined to provide the sample, but an officer threatened to lose the paperwork on his case so that he would be in custody longer and might be sent to Rikers Island.

“I didn’t feel like fighting,” Henderson said. “I wanted to go home.”

Law enforcement officials say the database has turned out to be a powerful tool. The Brooklyn district attorney’s office, for instance, said it had solved more than 270 cases using DNA from the database, including 10 homicides, 36 sexual assaults and 77 weapons offenses.

One example is the case of a 68-year-old woman who was raped and robbed at knife point in her home in 2016. DNA left by the woman’s attacker was uploaded to the city’s database, where it matched Willie Weathers, who had been convicted of a robbery. Weathers was convicted of the rape and sentenced to 25 years in prison in 2017.

In 2014, the database also helped Brooklyn prosecutors convict another accused rapist, Avery Bovell. Two years after the attack, Bovell was arrested and questioned in connection with a commercial burglary. The police obtained a sample of his DNA from an object he touched, and it matched the DNA of one of two men the victim said had raped her. In June, Bovell pleaded guilty to first-degree criminal sexual act.

“Without having that resource, we would never have been able to identify one of the attackers in that case,” said Rachel Singer, the chief of the forensic science unit in the Brooklyn district attorney’s office.

Once a person’s genetic information has been put in the database, it can be a struggle to get it removed, lawyers said. Last year, the medical examiner’s office removed only seven DNA profiles from the database.

Take, for example, the case of a Bronx man, Lamar, who asked that his last name be withheld to protect his privacy. In April 2018, detectives questioned him about a firearm they believed he had discarded and surreptitiously collected his DNA from a cigarette they had offered him, video of the interrogation shows.

When the charges against him were later dismissed, Lamar petitioned a judge to expunge his DNA from city records. He said he did not learn that detectives had collected his DNA from the cigarette until it was revealed at a court hearing. “I didn’t expect nothing like that,” he said.

This article originally appeared in <a href="https://www.nytimes.com/2019/08/15/nyregion/nypd-dna-database.html" id="090929cc-c6d0-3b33-a7e6-1fbf2ea9ff54">The New York Times</a>.

The NYPD Has 82,473 People in a DNA Database. Many Have No Idea.

NEW YORK — New York City detectives questioning a boy facing a felony charge last year offered him a McDonald’s soda. When the boy left, they took the straw and tested it for his DNA.

The Brooklyn district attorney’s office knew the detectives had pressured the witness but never informed the defense, court papers said. A federal judge later called the prosecutor’s conduct “shameful” and a “tragedy.”

The conviction was vacated and the city paid Collins a $10 million settlement in 2014. But the prosecutor was never called to account for how he handled the case.

Last week, Gov. Andrew M. Cuomo approved legislation to create a special commission to investigate local prosecutors for such allegations of misconduct. The commission would have the authority to sanction prosecutors and, in extreme cases, remove them from office.

The governor has said the panel is the first of its kind in the country. The state’s prosecutors have already vowed to challenge it in court as unconstitutional, setting the stage for a fierce legal battle that could land in the state’s highest court.

“The new bill is just another political stunt, with no hope of surviving judicial scrutiny,” said David Soares, Albany County’s district attorney and president of the state’s district attorney’s association. The commission “impermissibly intrudes on core law enforcement functions,” Soares, a Democrat, added.

But supporters of the legislation said cases like Collins’ show why the state needs an independent entity to investigate prosecutors. In that instance, the assistant district attorney, Michael F. Vecchione, was never publicly disciplined for withholding information.

The supporters point out that district attorneys, who are immune from civil suits for their official actions, are seldom penalized for acting unethically.

In recent years, people seeking to overhaul the state’s criminal justice system have increasingly focused on prosecutors, who wield enormous power through their discretion in charging decisions and plea bargaining with little or no oversight.

Nine of 10 cases are settled with a guilty plea and so usually evidence is never tested at trial. The steps an unscrupulous prosecutor might take to get a conviction, like hiding evidence favorable to the defense or coercing a witness to give certain testimony, seldom becomes public, legal scholars said.

“The cases where misconduct comes to light is often by serendipity,” said Barbara O’Brien, a law professor at Michigan State University and the editor of the National Registry of Exonerations. “We just have no idea how many times they don’t get caught.”

While district attorneys contend that such misconduct by prosecutors is rare, defense lawyers have pointed to the role prosecutors have played in the growing number of wrongful convictions that have been uncovered because of advances in DNA evidence. Also, a greater understanding about the prevalence of false confessions has emerged, defense lawyers said.

The prosecutors, who are elected officials in the executive branch, argue that the 11-member commission violates the separation of powers rule because members are appointed by the judiciary and the Legislature.

If it survives the challenge, the State Commission on Prosecutorial Conduct will have the power to investigate the state’s 62 district attorneys to determine whether their conduct is unethical, unprofessional or unlawful. The commission would be able to conduct hearings, compel witness testimony, issue subpoenas and request any records or materials deemed relevant to its investigation.

It was Cuomo’s second time signing the bill into law. The first time, in August, Cuomo had urged legislators to amend the legislation to address his concerns about its constitutionality, particularly the separation of power rule. But he said the new bill was returned with few changes.

“Despite my desire for a bill strong-suited for the legal challenges that it will surely confront,” Mr. Cuomo, a Democrat, said in his approval memo, “my commitment to the creation of this commission and the promise that it brings for a more transparent, and just criminal justice system remains unshaken.”

The governor’s office and the Legislature will each appoint four members, while the chief judge will appoint three. No members have yet been named to the commission.

Lawyers for the prosecutors asked a judge this week to block the formation of the panel, arguing the law illegally expands the role of the chief judge and blurs the lines between powers of the executive, the judiciary and the Legislature.

Jacob Gardener, a lawyer representing the district attorneys, said the prosecutors did not oppose oversight or criticism, but believed the law was “marred by constitutional defects.”

Public defenders applauded the creation of the panel as a critical step toward reducing the number of wrongful convictions and for holding prosecutors accountable for unethical practices. About 300 people have been exonerated in New York, dating back to the 1980s, and official misconduct was listed as a contributing factor in many of the cases, according to data in the National Registry of Exonerations.

“We have a responsibility to our client and prosecutors have a responsibility to justice,” said Tina M. Luongo, the chief criminal defender for the Legal Aid Society. “Someone needs to be held responsible when it goes wrong.”

In Queens, for instance, defense lawyers said prosecutors there never faced meaningful sanctions for the wrongful conviction of Shih-Wei Su, who was convicted in 1992 of attempted murder for a shooting at a pool hall. He served 13 years in prison before a federal appeals court judge ordered a new trial, after discovering that a prosecutor, Linda Rosero, “knowingly elicited false testimony from a crucial witness” to get the conviction.

Ms. Rosero maintained that she was unaware the Queens district attorney’s office had made a deal with the key witness, promising him he could go free on an unrelated case if he testified. Rosero said she had been “naïve, inexperienced and, possibly, stupid.” A grievance committee later issued Rosero an admonition, which amounts to a warning, but took no other action.

In a letter to the grievance committee, Su said, “Is 13 years worth of my life worth only an admonition?”

The new law prevents the commission from looking into a prosecutor’s conduct in investigations in which no charges have been filed, or from examining cases still being tried. Still, the state’s prosecutors have said the panel will create a chilling effect and could make the state’s lawyers reluctant to pursue difficult cases out of concern that their work would be subject to public scrutiny.

“One reason prosecutors have immunity in civil lawsuits is because they’re supposed to seek justice and not worry, ‘Hey, what is this going to mean for me?’” said Daniel R. Alonso, a former chief assistant district attorney in Manhattan.

Some current and former prosecutors have also argued the commission is unnecessary. Grievance committees in New York’s four appellate divisions already review complaints about lawyers in the state, including prosecutors.

One recent and egregious example was the case of Mary E. Rain, the district attorney of St. Lawrence County, a rural territory on the Canadian border in northern New York. In 2018, Rain was disbarred from practicing law for two years, after complaints emerged that her office had used an inmate to improperly obtain jailhouse confessions and for using questionable tactics in a high-profile murder case.

Still, lawmakers who support the new commission say Rain’s case is an exception; in practice, grievance committees rarely punish prosecutors for unethical behavior. Alphonso B. David, counsel to Cuomo, said that, in effect, “there are currently no mechanisms in New York to challenge prosecutorial misconduct.”

In Collins’ case, the prosecutor, Vecchione, denied wrongdoing and continued to work until 2013. He resigned after his longtime boss, the Brooklyn district attorney, Charles J. Hynes, lost a bid for re-election.

“If prosecutors, either through negligence or recklessness, cause someone to suffer the death penalty or life in prison — should there be no consequence at all?” Collins’ lawyer, Joel B. Rudin, said.

Prosecutors Sometimes Behave Badly. Now They May Be Held to Account

Jabbar Collins spent 16 years in prison before it was discovered that detectives had pressured the main witness against him to lie about Collins’ role in the 1994 murder of a rabbi.

Prosecutors sometimes behave badly. Now they may be held to account

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Jan Ransom and Ashley Southall

Articles written by the author

The NYPD Has 82,473 People in a DNA Database. Many Have No Idea.

Prosecutors sometimes behave badly. Now they may be held to account