Hannah Graham – Another Unnecessary Victim

Support Data for Databank Expansion Notes

Historical Databank dates in Virginia

1988

In Virginia in 1988, Timothy Spencer became the first murderer in the United States whose conviction was based on DNA evidence. He was convicted as a serial rapist/murderer and executed in 1994. In one of his murders an innocent man, David Vasquez, had already been convicted .Vasquez became the first American exonerated on the basis of contradictory DNA evidence in 1989. It was reported that despite an agreement in his plea deal, Vasquez had not been assigned to a psychiatric unit in prison, and instead was placed in general population where for years he was raped and abused. Hundreds of exonerations have followed around the country. The Innocence Project alone has helped with over 300. In eighteen of those men had been on death row, all for crimes that DNA helped proved them to be innocent.

1989

Virginia establishes first DNA Databank in United States for certain violent convicted felons.

1990

Virginia expands to include all adults convicted of a felony

  • 19.2-310.2. Blood, saliva, or tissue sample required for DNA analysis upon conviction of certain crimes; fee.
  1. Every person convicted of a felony on or after July 1, 1990, every person convicted of a felony offense under Article 7 (§18.2-61et seq.) of Chapter 4 of Title 18.2 who was incarcerated on July 1, 1989, and every person convicted of a violation of (i) § 18.2-67.4, (ii) § 18.2-67.4:2, (iii) subsection C of § 18.2-67.5, (iv) § 18.2-130 or (v) § 18.2-370.6 shall have a sample of his blood, saliva or tissue taken for DNA (deoxyribonucleic acid) analysis to determine identification characteristics specific to the person

1996

Virginia expands to include Juveniles 14 and older.

16.1-299.1. Sample required for DNA analysis upon conviction or adjudication of felony.

A juvenile convicted of a felony or adjudicated delinquent on the basis of an act which would be a felony if committed by an adult shall have a sample of his blood, saliva or tissue taken for DNA analysis provided the juvenile was 14 years of age or older at the time of the commission of the offense.

1998

As the size of the offender databank increases, so does the number of “cold hits” from crime scenes. In 1998 Virginia was averaging only 2 to 3 hits a year. I formed a group called “Citizen’s for DNA” and successfully lobbied for funding to have 140,000 collected felon samples processed. These samples had been stored in refrigerators for years untouched. We bipartisan support Governor George Allen’s out going budget included money for the analysis. The database of known offenders grew and the “hit” rate has gone to 2 to 3 hits a day). Adding misdemeanor convictions would almost triple the intake of samples per year into the databank.

2002

Expanded to take DNA upon arrest for certain violent felonies

  • 19.2-310.2:1. Saliva or tissue sample required for DNA analysis after arrest for a violent felony.

Every person arrested for the commission or attempted commission of a violent felony as defined in § 19.2-297.1 or a violation or attempt to commit a violation of § 18.2-3118.2-8918.2-9018.2-91, or 18.2-92, shall have a sample of his saliva or tissue taken for DNA (deoxyribonucleic acid) analysis to determine identification characteristics specific to the person. After a determination by a magistrate or a grand jury that probable cause exists for the arrest, a sample shall be taken prior to the person’s release from custody. The analysis shall be performed by the Department of Forensic Science or other entity designated by the Department. The identification characteristics of the profile resulting from the DNA analysis shall be stored and maintained by the Department in a DNA data bank and shall be made available as provided in § 19.2-310.5.

The clerk of the court shall notify the Department of final disposition of the criminal proceedings. If the charge for which the sample was taken is dismissed or the defendant is acquitted at trial, the Department shall destroy the sample and all records thereof, provided there is no other pending qualifying warrant or capias for an arrest or felony conviction that would otherwise require that the sample remain in the data bank.

2007

While supervising a 10 year span serial rape case in Charlottesville I noticed that some of the “person’s of interest” had felony convictions but were not in the Databank. I researched the issue and forecast that we were missing 21% of the samples that should be in the system. I wrote Governor Kaine and a task force was created to go after the missing samples. Delegate Rob Bell sponsored legislation that received by partisan support resulting in Code changes. Virginia Code now specifies who is required to take the DNA and run checks to make sure it gets into the Databank.

Why expand to include serious misdemeanors?

  • In many cases the DNA Databank is more important than the fingerprint database. My first “cold hit” in an investigative case in Charlottesville was a UVA student who was robbed and raped at gun point in complete darkness. We found DNA at the scene and got the “hit”. The partial fingerprints recovered had NOT hit. Later we had them compared by experts directly to the suspect and got a positive match of a partial print taken from our victim’s door frame.
  • VA DNA Section Chief Brad Jenkins, reports there are 7,700 DNA profiles from crime scenes in Virginia’s Databank of unsolved crimes. How many unsolved notorious cases might clear if we expanded the Databank?
  • Many offenders charged with felonies for the first time actually end up pleading to misdemeanors. One of Charlottesville’s most notorious serial rapists in the past 30 years is Shannon Malnowski. Malnowski had a felony assault reduced to a misdemeanor in 1992 and a felony breaking and entering reduced to a trespass charge in 1994. In 1996 he raped a UVA student who was out jogging and in 1997 a 78 yr old professor’s wife in broad daylight in some bushes near the Culbreath Theater. In 2000 a student was raped on the Charlottesville High School track. Malnowski became a suspect and we obtained his DNA. It “hit” in all three cases. He was sentenced to life plus 50 years. If a DNA sample had been taken for the misdemeanors, he would have been caught after the first rape and the latter two rapes would have never occurred.
  • There is an assumption that a significant number of felons are first convicted of misdemeanor crimes prior to gradually evolving into more serious criminal activity. One of the briefing points used in the New York State Databank Expansion effort stated: In the 5 ½ years since petit larceny-the pettiest of crimes-has been a DNA eligible offense in N.Y. State , convicted offender samples have helped solve 965 crimes, including 51 murders, 222 sexual assaults, 177 robberies and 407 burglaries. On average, offenders linked to crimes in N.Y. State had three prior non-qualifying convictions before finally being convicted of an offense that required a DNA sample to be taken. This has been my observation over the past 40 years while working as a juvenile probation officer, police officer, serving as Chairman of the Virginia State Board of Juvenile Justice and as Sheriff. Ask any probation/law enforcement officer or prosecutor and most will tell you the same.
  • Most criminologists agree that the “crime prone years” are from ages 13 to 24. The sooner you get DNA profiles into databanks the quicker you have a chance at a “cold hit” from a crime scene of a budding career criminal.

 

  • Virginia’s databank research shows approximately 85% of hits would have been missed if the Databank was limited to only violent offenders. Approximately 39% of violent crimes solved were perpetrated by individuals with previous property crime convictions.

 

  • In many cases the DNA Databank is more important than the fingerprint database. My first “cold hit” in an investigative case in Charlottesville was a UVA student who was robbed and raped at gun point in complete darkness. We found DNA at the scene and got the “hit”. The partial fingerprints recovered had NOT hit. Later we had them compared by experts directly to the suspect and got a positive match of a partial print taken from our victim’s door frame.

 

  • Most misdemeanor offenders in Virginia are in a databank called the Central Criminal Records Exchange (CCRE). It currently contains the names, photographs and finger prints of adults that are convicted of serious misdemeanors/felonies. There are felony crime level records captured on Juveniles 14 years of age and older.

 

  • Virginia’s databank research shows approximately 85% of hits would have been missed if the Databank was limited to only violent offenders. Approximately 39% of violent crimes solved were perpetrated by individuals with previous property crime convictions

 

Data that Refutes Arguments against Expansion

How much will it Cost and how can we pay for it?

 

  • Data I received from the Virginia State Police (Central Criminal Records Exchange) would forecast approximately 46,000 new histories opened/added for misdemeanor arrest per year

2012- 45,778

2011- 45,169

2010- 44,172

In talking to various Commonwealths’ Attorneys I estimate 85% to 90% make it to court and result in a conviction. This leaves approximately 40,000 convictions a year. It should be noted that in the first few years you will have two other factors to consider. There will be people who have never had their DNA taken that will be convicted of a misdemeanor yet it will not be a new file opened because they have pre-existing convictions. Also we  are currently adding around 21,000 new felony cases a year to the databank and that number will go down as more defendants will already be in the databank on misdemeanor convictions so there will be no need to take it on the felony conviction.

 

 

Linda Jackson, Director of the Virginia Department of Forensic Science, told me this week that the 2014 average total Data Dank operational cost per DNA sample is $50.23.  The number quoted earlier ($35) was an estimate to process the sample once and place the sample in the Data Bank.  The $50.23 figure includes additional expenses associated with removing samples, performing quality assurance testing on reagents and instruments, as well as re-processing the samples to confirm DNA Data Bank “hits.”  This also includes the salary, with state benefits, for the lab staff. DFS is testing new instruments and DNA chemistries for the DNA Data Bank to be implemented in 2015.  The Data Bank operational cost per DNA sample is expected to increase once the new instrumentation and chemistries are in use.

 

  • John Jones indicated the Sheriff’s might require additional funding. I do not know how that would be determined however I would guess they would not need more funding based on adding an additional 40,000 samples a year. —if you divided that by just 100 agencies (not 123 sheriffs and jails and some police departments) you would get 400  samples a year per agency or 8 on average per week. If you figured 4to 5 minutes to take sample and fill out paper work you are looking at a little over 30 minimum additional a week which most offices should be able to handle –I am not speaking for them or even say I am figuring right. I spoke with Sheriff Lippa (who is on the Forensic Board) and he agrees this should not pose a problem.

On December 4, 2014 Mr. Jones writes:

“I am not sure if sheriffs would need funding but the consideration should not be    ignored.  I would need to know exactly what is going to be done and then send it out for a review by the VSA policy committee.”  –John Jones, Executive Director, Virginia Sheriff’s Association.

 

  • The estimate of cost for now would be $50.23 x 40,000 or to be safe (considering potential additional samples) 45,000 or a cost of $ 2,260,350.00. I recommend assessing the defendant at point of conviction a DNA fee of $60.00 to fully cover the expansion effort (unless the Sheriffs produce evidence that they need additional funding and adjust accordingly).
  • Cost savings from having to have less Investigative Task Forces on serial offenders is hard to measure but should be in the millions each year.

Government over reach? Big Brother? Civil Rights trampled?

  • June 3, 2013 –The United States Supreme Court Okay’s DNA testing “DNA identification of arrestees is a reasonable search that can be considered part of a routine booking

procedure,” Kennedy said. “Taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is  reasonable under the Fourth Amendment.

  • New York State is the first state to expand their databank to include almost all misdemeanors and did so last year. Wisconsin has approved expansion and will begin taking misdemeanor samples in 2015.
  • Our DNA Databank has been in place for over a quarter of a century.. It has never been abused. There are laws in place to govern abuse. How much longer must we wait to prove that your DNA is safe from abuse and will only be used for legitimate identification purposes?
  • 19.2-310.6. Unauthorized uses of DNA data bank; forensic samples; penalties.

Any person who, without authority, disseminates information contained in the data bank shall be guilty of a Class 3 misdemeanor. Any person who disseminates, receives, or otherwise uses or attempts to so use information in the data bank, knowing that such dissemination, receipt, or use is for a purpose other than as authorized by law, shall be guilty of a Class 1 misdemeanor.

Except as authorized by law, any person who, for purposes of having DNA analysis performed, obtains or attempts to obtain any sample submitted to the Department of Forensic Science for analysis shall be guilty of a Class 5 felony. (1990, c. 669; 2005, cc. 868881.)

  • In 99% of serious misdemeanor convictions we already have your photograph and fingerprints –why not add your “bio-metric fingerprint”?

 

  • DNA and Databanks have done more in the past few years to free the innocent than any law enforcement tool in history. The Innocence Project alone has used DNA to help exonerate 325 wrongly convicted citizens, 20 who had been sentenced to death. In my last few years with the Charlottesville Police Department we arrested two different African American men on two separate cases where the victims picked out an innocent person from a photo lineup or show up identification. In the last case the victim was a UVA Law student who said she was 100% sure when she identified her assailant 25 minutes after being attacked. Within one week the Department of Forensics notified us that not only did we have an innocent man in jail but the databank had identified John Henry Agee as having left his DNA on the victim. Agee was picked up. He confessed in detail and is serving a lengthy sentence. Where would original suspect be today if we were still in the pre-DNA years?

2010 RAND STUDY –reports it is more important to place heavy emphasis on processing crime scenes and the DNA material collected. Many states have large back logs.

  • Brad Jenkins, VA DNA Section Chief, reports that Virginia is completely up to speed on analyzing convicted felon samples and there is no back log in processing violent crimes. The RAND Study may apply to other states but not Virginia.

 

Why should we move to add all Class One and Two Misdemeanors at once?

  • New York State started off adding just a few misdemeanors at a time and the evidence became so over whelming that even crimes like petty larceny and criminal trespass were solving so much violent crime they realized they needed to go all in to be most effective. (VA would add Class 1 and 2 Misdemeanors to do the same)

Virginia –Class 1 Misdemeanors

Class 1 misdemeanors are the most serious misdemeanors in Virginia. A Class 1 misdemeanor is punishable by:

  • up to 12 months in jail
  • a fine of up to $2,500, or
  • both

If lawmakers fail to designate a misdemeanor or set forth a particular punishment, then a crime is punishable as a Class 1 misdemeanor.

(Va. Ann. Code §§ 18.2-11, 18.2-12.)

Domestic violence is an example of a Class 1 misdemeanor. For more information on the penalties for domestic violence, see Virginia Domestic Violence Laws.

Virginia –Class 2 Misdemeanors

Class 2 misdemeanors are punishable by:

  • up to six months in jail
  • a fine of up to $1,000, or
  • both

(Va. Ann. Code § 18.2-11.)

 

For example, possession of drug paraphernalia in Virginia is a Class 2 misdemeanor. For more information on crimes involving marijuana, see Virginia Marijuana Laws.

Virginia –Class 3 and 4 Misdemeanors

Class 3 and 4 misdemeanors, the least serious misdemeanors, are punishable by fines, but no jail time. A Class 3 misdemeanor is punishable by a fine of up to $500. A Class 4 misdemeanor is punishable by a fine of up to $250. (Va. Ann. Code § 18.2-11.)

A first conviction for public intoxication is an example of a Class 4 misdemeanor. For more information on this crime, see Virginia Public Intoxication Laws.