ParfumGigi@aol.com

By Vesna Jaksic
The National Law Journal
01-18-2007

As state DNA databases expand, a growing number of "cold cases" are getting solved, but that's leading to a new problem: Local jurisdictions can't keep up with their burgeoning caseloads.

"I see it nationally as becoming a major problem," said Ted Hunt, chief trial assistant in the Jackson County Prosecutor's Office in Kansas City, Mo. "We're lucky to have a cold case homicide unit and a branch of sex crimes that works on cold cases, but many jurisdictions lack those resources."

And DNA databases are certain to grow even more in several states.

While all states now require that samples be collected from convicted felons, a growing number of states -- including Texas and Virginia -- collect samples from certain arrestees, such as those picked up for violent crimes. Kansas and New Mexico are scheduled to expand their databases to include arrestees this month. California is expected to do the same in 2009.

As of October 2006, the FBI's national database contained profiles for more than 3.7 million convicted offenders, which helped with more than 40,000 investigations. Florida topped the list with 4,907 investigations aided, followed by Illinois, New York and Virginia, according to the FBI.

The state of Virginia illustrates how fast databases have grown. When the state's cold case program started in 1993, the Virginia Department of Forensic Science's database contained 2,184 samples. It currently holds 253,156 samples. Since 2001, Virginia's database has grown by 50 percent.

Virginia's database has resulted in 3,600 "hits," which refers to cases for which DNA samples from the crime scene match DNA samples stored in felon databases. Those hits have helped 3,518 investigations, according to the department. But like many other states, it has been struggling to keep up with its growing workload.

"It's hard to think of cases these days where there isn't the possibility of DNA evidence," said Paul Ferrara, the department's director. "With cold cases, the ones they haven't solved from 20 years ago, all of a sudden you see the light bulbs going off and say, 'Wait a minute, I have this case and the DNA might be good.' That's fine but I think the largest challenge we do have is capacity and turnaround time."

VIRGINIA INVESTIGATIONS

The growth of DNA databases has triggered other problems. Virginia authorities have been investigating why thousands of felons' samples have been left out of the database.

And some civil rights groups, including the American Civil Liberties Union, have challenged states' efforts to expand databases to include people without convictions, saying that doing so contradicts the presumption of innocence until proven guilty and violates privacy.

California has more than 662,000 DNA samples in its database, which has led to 3,346 offender matches, including some for cold cases, said Nathan Barankin, a spokesman for California's former attorney general, Bill Lockyer.

But Rockne Harmon, senior deputy district attorney in Alameda County, Calif., said many cold hits don't lead to anything, often because of limited resources.

"It's a great tool but you have to be careful because what we've seen in California, and I know it's a problem elsewhere too, is an unknown number of these cold hits gets stuck in the police departments and nothing happens," he said. Harmon added that there is no way to determine how many hits fail to lead to charges and cases being filed. "While there have been great success stories, no one can really tell you what has happened to all of their cold hits."

Federal funds are helping states with their cold case programs. In fiscal year 2005, the National Institute of Justice distributed more than $14 million in grants to 38 state and local programs for solving cold cases with DNA.

The Denver District Attorney's Office credits federal money for making its program one of the most aggressive in the nation. More than 4,000 cases have been reviewed and 20 new cases have been filed as a result of cold hits, said Mitchell Morrissey, Denver's district attorney. Grant money has allowed the DNA laboratory to double its capacity by hiring two full-time DNA analysts, improve its instruments and fund detective overtime, according to Morrissey's office. Future goals include investigation of cases dating back as far as the 1950s.

OLD CRIMES, NEW CHALLENGES

But Morrissey stressed that old crimes carry their challenges, such as statutes of limitations and difficulties with finding everyone involved." A lot of people just think, 'OK, you get a DNA match and now you've got a case,'" he said. "That's not true. You still have to do a lot of investigating. Sometimes you still have to find the victim. Sometimes you still have to find the suspect."

Defense attorneys are finding challenges of their own. David Bell, an assistant public defender in Kansas City, Mo., who represented a defendant successfully prosecuted by Hunt for a crime committed 20 years ago, said there are plenty of obstacles for the defense.

"One of the problems with these cold-hit cases is that it truly shifts the burden to the defendant," said Bell, who plans to appeal the case. "Prosecutors get blinded by the DNA. DNA is a powerful tool, there is no doubt, but it must be placed in the context of everything else."

In the Kansas City case, Bell argued that his client had consensual sex with the victim but did not remember it because it was a casual, one-time encounter that occurred 20 years ago. Bell also presented DNA evidence in the trial, trying to shift blame to the victim's husband, whose DNA also was found at the crime scene.