By JODI SOKOLOWSKI
Buffalo Law Journal

Anthony Capozzi and Lynn DeJac spent 21 years and 13 years in prison, respectively, for crimes they didn't commit. Both were exonerated this year after DNA proved their innocence.

Since 1988, when DNA profiling was first used to prove a murderer's identity, DNA evidence is increasingly being used in crime-scene investigations and subsequent prosecutions.

Because DNA is a blueprint of genes unique to each person, its use as evidence in a criminal trial can be used to eliminate any doubt in a suspect's guilt or innocence.

"DNA evidence is not only used to convict the guilty, but is used on a regular basis to exonerate the innocent," said John Simich, acting director of the Erie County Central Police Services laboratory.

If suspects insist that they're innocent, he believes, "then it's (in) the defense attorney's best interest for his client to submit a sample."

Locally, out of four convicted criminals who later had their DNA tested, Capozzi and DeJac were found to be innocent, whereas two others had their convictions affirmed, Simich said.

The process

"The CSI effect," the label Simich and others use to refer to the heightened societal interest in forensics that's resulted from a spate of crime-related TV shows, has encouraged law-enforcement agencies to give their personnel more training in collecting evidence from crime scenes.

Blood on broken glass, a cigarette butt tossed in the bushes during a burglary or a swab of the steering wheel on a stolen car, to list a few examples, can be sent to the local lab for analysis. The result is used as an investigatory lead, but cannot itself be the basis of a conviction.

"Although everyone is afforded due process, it can help solve crimes. It's a scientific answer or explanation to some offenses," said New York State Division of Criminal Justice Services Commissioner Denise O'Donnell.

DNA testing can also be used to determine whom a gun or bag of drugs found in a car with multiple occupants belonged to.

Databank

Thanks to a statewide DNA database, DNA is also being used to link suspects to recent crimes and cold cases.

"We get databank matches on almost 30 percent (of submitted samples). That's how valuable it is," Simich said.

In 1996, New York state created a databank in Albany to house legally collected DNA samples from people convicted of homicide or certain sex-related crimes. The databank was expanded in 1999 and again in 2004.

In June 2006, the Legislature passed a law requiring DNA samples from people convicted of 46 percent of criminal offenses, including all felonies and 30 percent of misdemeanors. A 2007 bill that would have forced every person convicted of a penal-law crime to submit a sample failed to pass. It would have also included people on probation or under parole supervision, registered sex offenders and juvenile offenders.

"It would be huge. It would solve a significant greater number of crimes," Simich said.

O'Donnell said the expansion would enable the justice system to solve more crimes. Currently, 14 states collect DNA from some suspects at the time of arrest.

"We often see incidents where someone arrested for a minor offense turns out to be a perpetrator of a very serious crime," she said.

In addition, the state databank sends its samples to a federal databank that can match suspects to crimes nationwide.

"Criminals are mobile. Once they've served their term, they will relocate. It's a regular occurrence," Simich said.

Backlog

Because the state legislation expanding the requirements to submit a DNA sample was retroactive, the Albany databank faced a temporary backlog.

Today, law-enforcement agencies and parole and probation officers all need to collect DNA from offenders who previously were not required to submit a sample. The databank hit a peak of 55,709 samples in June 2007.

If the databank legislation is further expanded, a backlog of approximately 12 months would result. The local lab meets its goal of completing sample-processing requests within 30 days, Simich said.

More DNA samples means more work, but also means more crimes can be solved, O'Donnell said.

"It can really prevent serial crimes, when an offender strikes again and again before law enforcement can identify who that is," she said. "Very often, we're able to determine that and prevent other crimes from occurring."

 

 

What's in there: The state's DNA databank

As of Sept. 30, there were 318,883 offender profiles in the databank, 42 percent more than at the same time last year.

From the databank's inception through the end of August, there have been 5,039 "hits."

A total of 6,788 law-enforcement investigations have been aided by DNA evidence since August 2000.

Average DNA-sample processing time in September was 28 days, within the 67-day processing target. The high was 309 days in December 2007.

There are eight DNA labs in the state that send samples to the state databank.

SOURCE: NEW YORK STATE DIVISION OF CRIMINAL JUSTICE SERVICES