OKLAHOMA CITY — An Oklahoma lawmaker who has unsuccessfully worked to require persons accused of crimes to provide samples of their DNA plans to conduct a legislative study on the issue.
Defendants convicted of certain crimes in the state are already required to provide DNA samples to law enforcement authorities to determine if they can be linked to unsolved crimes. But Rep. Lee Denney, R-Cushing, said she wants authorities to be able to secure DNA samples earlier in the criminal justice process.
"It sure would be a good tool in solving crime in Oklahoma," Denney said. "It implicates the guilty and it exonerates the innocent."
But previous attempts to expand the state's DNA database to include those merely accused of crimes have been defeated after lawmakers expressed concern about the constitutionality of targeting suspects who have not been found guilty.
"I think the concerns in the Legislature are valid," said Brady Henderson, legal director for the American Civil Liberties Union of Oklahoma. "It's likely that many defendants in that situation would have a viable illegal search-and-seizure claim. It could have a lot of collateral consequences."
Persons convicted of violent felony offenses in the state are required to provide blood or saliva samples to law enforcement authorities. Those samples containing the person's DNA are stored at the Oklahoma State Bureau of Investigations' Forensic Science Center in Edmond and analyzed to determine if the individual's unique biological characteristics can be found in forensic evidence recovered from earlier crime scenes.
In 2009, Gov. Brad Henry signed legislation requiring people convicted of certain misdemeanors to be included in the OSBI's DNA database. Henry said at the time the measure would be a powerful tool law enforcement authorities can use to solve cold cases for crimes such as rape and murder.
Misdemeanors covered by the bill include assault and battery, domestic abuse, stalking, resisting arrest, pointing a firearm, negligent homicide and burglary of a home.
Denney's attempts to expand the state's DNA database have been inspired by the case of Jewel "Juli" Busken, a University of Oklahoma ballet student from Benton, Arkansas, who was raped and murdered Dec. 20, 1996. Busken disappeared from her Norman apartment complex and was later found dead on the shore of Lake Stanley Draper in far southeast Oklahoma City.
Busken's case went unsolved until 2004, when forensic examiners matched DNA from semen stains found on Busken's clothing to Anthony Castillo Sanchez, who was then in prison on a burglary conviction. Sanchez was convicted of first-degree murder, rape and sodomy and sentenced to death in 2006.
"It took eight years to find the killer of Juli Buskin," Denney said. "If we could shorten that window, we could prevent crimes against other people."
But legislation authored by Denney to take DNA samples from suspects prior to conviction, including at the time of their arrest, have been soundly defeated. All states require DNA from persons convicted of a felony, but 28 states and the federal government take DNA samples from at least some arrestees.
Lawmakers in Arkansas passed a similar law named in Busken's honor in 2009. It requires law enforcement to collect DNA samples from people arrested on suspicion of capital murder, first-degree murder, kidnapping and sexual assault in the first and second degree.
Last year, the U.S. Supreme Court upheld a Maryland law that allows officials to take DNA samples without a warrant from those who have been arrested but not convicted of a serious crime. The law only allows police to take DNA from those arrested for serious offenses, similar to the Arkansas law.
Denney's legislative study before members of the House Public Safety Committee, tentatively set for mid-October, will explore whether there is consensus for obtaining DNA samples at any point prior to conviction. Witnesses will include OSBI Director Stan Florence.
Denney said she favors obtaining DNA samples after a judge rules there is probable cause that a defendant committed a crime and binds him over for trial.
"They might be repeat offenders," she said. The DNA requirement would apply only to persons accused of serious felonies for which convicted offenders must serve at least 85 percent of their sentence before they are eligible for parole.
But Henderson said the proposal may violate provisions of the Fourth Amendment to the U.S. Constitution, which prohibits unreasonable searches and seizures.
"At the time that you're doing this you're an innocent person," he said. Under the law, anyone accused of a crime is presumed innocent until convicted by a judge or jury.
If a person is linked to an unsolved crime through a DNA sample that is later determined to have been unlawfully obtained, it could prevent that person from being prosecuted, Henderson said.
The proposal could also present problems for suspects who are found innocent but whose DNA has already been placed in the state database. Denney said the DNA of persons found innocent should not be kept in the database, but Henderson said that could be time-consuming and difficult.
"It's very hard to put that genie back in the bottle," he said.