Quietly and without fanfare, the state of Ohio for three years has collected DNA profiles from people cleared of crimes.

        Supporters hail it as an invaluable tool to fight unsolved crimes.

        Critics see Big Brother intruding on innocent people.

        The uncommon practice is so unsettling that the Hamilton County coroner refuses to contribute DNA samples to the database.

William Harry, a serologist in the Hamilton County Coroner's Office, works in the DNA lab. (Gary Landers photo) | ZOOM |

        And an Enquirer investigation indicates that some people who willingly gave up their DNA samples were never told their profiles would be kept and compared against evidence in future crimes.

        “What gives government the right to take people's DNA and do with it as they damn well please? Frankly, it should be unconstitutional,” says Peter Neufeld, a New York criminal defense lawyer who co-founded with Barry Scheck the Innocence Project, and who helped set state and federal standards for use of DNA testing.

        The Ohio Bureau of Criminal Identification and Investigation keeps the DNA profiles at its London, Ohio, headquarters. A database there includes DNA analysis collected from more than 1,020 people who were excluded as suspects in offenses such as homicide, rape and burglary.

        The agency is building the database and comparing information stored there indefinitely against evidence collected in unsolved crimes in Ohio.

        Bureau Superintendent Ted Almay, who directs the database's use, hails it as a tool that gives his agency a greater edge in fighting crime — even though the effort has resulted in only one match, involving evidence in a Cleveland rape case last year.

        His boss, Ohio Attorney General Betty Montgomery, said: “It's a broad net that's going to bring in probably folks that are not going to be suspects in any crimes. But at the same time, it may very well be bringing in very legitimate samples of people who will be suspects in future crimes.”

        One Hamilton County man who was questioned in a rape case says he was alarmed to hear that the database even existed.

        “To me, this is so black-and white,” says the 40-year-old married government worker from Anderson Township. “If you're not doing anything, you are innocent until proven guilty. If this person has been cleared, why would you keep their sample? Why would you want to?”

        The man, who asked the Enquirer for anonymity, was questioned by Cincinnati police in Novemberabout the unsolved rape of a 15-year-old girl in Mount Washington. He gave police a saliva sample.

DNA EVIDENCE

For more than a decade, police have used DNA to identify suspects in criminal cases and now keep a national database that contains genetic profiles of nearly 1 million inmates who have been convicted of certain offenses from every state.    Some highlights:    1985: DNA developed as an identification technique by British Scientist Alex Jeffries at University of Leicester, Leicester, U.K.    1987: DNA testing first used to catch a criminal when Scotland Yard used mass testing of 4,000 men to arrest Colin Pitchfork, a 25-year-old baker, in the sexual assaults and strangulations of two 15-year-old girls in Narborough, Leicestershire.    1989: Virginia became the first state to pass a felon databank law that required DNA samples from convicted sex offenders. David Vasquez, a mentally impaired man convicted in the 1984 rape and murder of an Arlington, Va., woman, is pardoned and released from prison after DNA proves his innocence.    1994: Timothy Spencer, the first American suspect to be identified and convicted as a result of DNA evidence (1988), became the first person executed because of it on April 27. The serial rapist and murderer was linked to three slayings in Virginia in the 1980s, including the case for which Mr. Vasquez was exonerated.    1998: The FBI's national DNA database became operational in October, allowing police agencies with unsolved cases to compare their evidence with convicted offenders in 42 states. As of May 2002, CODIS has produced more than 4,400 hits assisting in more than 4,900 investigations, according to the FBI.    1999: The rapes of two teenage girls and a woman in Mason, Ohio, are linked to one man through the use of DNA testing. The man, yet uncaught, later broke into homes and sexually assaulted two more children.    The FBI's national database lands its first match, linking six sexual assaults in Washington, D.C., to three others under investigation in Florida.    2001: Ohio's DNA database, created in 1997, produces a first-time match, resulting in the March indictment of convicted burglar Sean B. Price, of St. Bernard, to the rapes of two women in Warren and Hamilton counties.    2002: Larry Johnson, a St. Louis man who spent nearly 18 years in prison for a rape he didn't commit, was freed in July after the Innocence Project pushed for DNA tests that cleared him in the 1984 attack of a female college student. - Sheila McLaughlin

        He eventually was excluded through DNA analysis at the Hamilton County coroner's lab, then convinced police to return the sample to him. His DNA profile was not sent to the state's database because of the coroner's policy against it.

        “I believe that DNA can be a useful tool, but it can also be a destructive tool,” the man says.

Started in 1995

        When Ohio legislators passed a law in 1995 to collect, analyze and create a statewide database of DNA samples from inmates convicted of certain crimes, it was part of a move to build and feed the FBI's national database. Ohio has more than 32,000 convicted offenders in that database.

        The federal agencies Combined DNA Index System was created to help law enforcement across the nation share information to solve criminal cases.

        Ohio's law allowed a statewide database only from criminals convicted of one or more of 14 specific crimes, another of DNA evidence collected from crime scenes, and a separate database to keep the analysis of genetic material from missing people or their relatives in the hope of identifying human remains.

        But in 1999, the state took that mission a step further.

        Even though the 1995 law does not address the suspect database, Mr. Almay says it did not prohibit him from doing it.

        “We keep all kinds of things that the law doesn't address,” Mr. Almay says. “We're serious about solving crime. We have been blessed by a tremendous amount of technology. If we have a legitimate legal tool to solve crimes — if it's legitimate, legal and ethical, I think we have an obligation to do that.”

        Ms. Montgomery says she doesn't want to waste evidence that may prove beneficial in later investigations.

        “Oftentimes we are dealing with people who are criminal types, who may not have committed this crime but they are hanging out at the crime scene, and they will many times have a high predictability of committing crimes themselves,” she says.

        U.S. Rep. Patrick Tiberi, R-Columbus, sponsored the 1995 DNA law while a state representative. He wasn't aware of the suspect database, but isn't bothered by its use.

        “I'll come down on the side of that if you are innocent of committing any type of physical crime, you need not worry about your DNA going into a database,” Mr. Tiberi says.

        “If you realized how much Big Brother had in Washington, D.C., you wouldn't think this was a big deal.”

        Mr. Neufeld, part of the 1994 O.J. Simpson murder trial defense team, finds that view troublesome.

        He says the practice of keeping what he calls “usual suspect” or “gray” databases is not widespread, but has surfaced in large cities such as Chicago, New York and Miami, and in other parts of Florida. The Enquirer also found that state police in Kentucky and Indiana, the agencies that run the DNA labs in those states, don't mirror the Ohio practice. Indiana police officials cited privacy issues; Kentucky police said they just don't have the time.

Some protections

        Mr. Almay says there are protections because profiles are identified only by case number and the agency that submitted the sample.

        He says the confidential database cannot be used for genetic research because the system does not contain enough genetic markers, or loci, to make that possible.

        The suspect database is not linked to the national system because state law does not allow it. The information is compared only on a statewide level, and is fed by the state's London crime lab, as well as 11 county or regional labs that are authorized and funded to do DNA testing in criminal cases, he says.

        However, Ms. Montgomery told the Enquirer that Mr. Almay's agency runs out-of-state crime scene evidence against the suspect database if an outside agency requests it.

        Hamilton County Coroner Carl Parrott refuses to participate in the suspect database, even though he says he has a local prosecutor's opinion that says he can. He wants more direction from the state — a law that says it's OK for Ohio to keep such a database and that his lab, which handles DNA analysis for 42 police agencies, can contribute to it.

        “We do the things we are specifically permitted to do by law rather than doing the things we are not precluded from doing,” Dr. Parrott says.

        “I'm not sure that the process is sufficiently advanced for me to be confident that we are not in the position of infringing on people's civil liberties in our zeal to fight crime.”

        Mr. Almay, however, contends that numerous court cases around the country, including in North Carolina, New York and Florida, support his actions. Ms. Montgomery says the state's research shows that similar databases are kept in Florida, Illinois, Washington, Nevada, Missouri and New York.

        “The courts have talked about things along the lines that once we take your (DNA), the individual no longer has an interest in it. It's no longer yours as far as possession,” Mr. Almay says, adding that Ohio's DNA databases have not yet faced a court challenge.

        In addition, people whose DNA profiles are included in the suspect database either had their genetic sample collected by court order or they gave their consent, he says.

Consent questioned

        However, the Enquirer's investigation indicates that some donors may not have known where their profiles would end up, raising questions about whether they were acquired with proper consent.

        By law, for consent to be valid, it must be givenvoluntarily and with knowledge of how the evidence is to be used.

        For instance, the Enquirer found that 18 profiles in the database were gleaned from saliva samples sent by the Mason Police Department in the investigation of a serial rapist.

        Mason Detective Sgt. Todd Carter says his investigators in the Warren County agency obtained only verbal consent for the saliva samples and told the donors their DNA would be used only for the serial rape investigation. The swabs were returned to the department and destroyed, but he says he had no idea what happened to the DNA profiles.

        In recent months, the state agency has suggested that police agencies use a model consent form that instructs the DNA donor that their sample would be entered into a database to be used for “any other investigation or any legitimate law enforcement purpose.”

        Bureau spokesman Bret Crow says he does not know how widespread use of the form is, but agencies were not required to adopt it.

        Several local departments say they do not use the state form for various reasons, including civil liberties concerns and fears its use would make their job more difficult.

        “We find that it works easier, and we get better cooperation if you tell somebody you're looking at it for a specific thing — if they don't think it's going anywhere else,” says Cincinnati personal crimes Detective Linda Day.

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