Dakota County moves forward with plans for pre-conviction DNA samples

People accused of violent crimes in Dakota County later this month will have to comply with a new procedure — a sheriff's deputy collecting a DNA sample with a swab on the inside of the cheek.

It's a return to a short-lived statewide practice from 2006, halted that year by the Minnesota Court of Appeals, which found it was unconstitutional. Dakota County is the first Minnesota county to revive the procedure following a 2013 U.S. Supreme Court ruling that it is legal to collect DNA before someone is convicted of a crime.

State forensic scientists who will analyze the DNA say they are ready to pick up the work. Yet critics who still call the practice an unreasonable search and seizure think it will eventually be disrupted again by further legal challenges — something even Dakota County Attorney James Backstrom said he expects to happen within the next six months.

"And that's fine," Backstrom said. "I believe the law is valid. I believe it's enforceable."

What happens with the Dakota County cases could influence whether other law enforcement agencies decide to collect DNA samples before someone is convicted. Officials in Hennepin and Ramsey counties have said they are still examining the issue in light of the Supreme Court ruling.

Based on 2014 arrests, Dakota County could send about 375 samples for analysis. The extra samples aren't expected to disrupt the Minnesota Bureau of Criminal Apprehension's turnaround time of processing DNA samples within 38 days, said laboratory director Catherine Knutson.

In the few months of 2006 when the BCA analyzed pre-conviction DNA samples, it turned out that 85 percent of them were from people who were ultimately convicted, Knutson said. The state would have collected DNA from those people anyway after conviction.

"It's not really an increase in volume," she said. "It's just that they're coming in a little bit sooner than they had before."

Backstrom attended the 2005 news conference that introduced the original legislation, where officials called it a useful tool to help solve cold cases and exonerate the wrongfully convicted. Supporters say the practice — swabbing skin cells from the inside of a person's cheek — is no more invasive than collecting fingerprints.

The BCA started collecting DNA samples from sex offenders in 1989 and all felons in 2002. It derives a DNA profile from the swabs at laboratories in St. Paul and Bemidji and enters the information into the FBI's Combined DNA Index System (CODIS) where it can be compared with DNA collected from crime scenes and victims nationwide.

Analysts target several areas of the human genome for which there are variations, Knutson said. She said the DNA profiles are uploaded anonymously into state and national databases. When a match is recorded, she said, a separate process traces the information to a specific person.

"Every time we're identifying somebody, we're excluding several other individuals and alleviating them of the scrutiny they may have been under," Knutson said.

When the U.S. Supreme Court heard a Maryland case in 2013 and decided the collection of DNA before conviction was legal, it said the only difference between DNA analysis and fingerprinting was the "unparalleled accuracy DNA provides."

That led Backstrom to recommend collecting DNA under such circumstances again. Should another legal challenge surface, the Minnesota law would likely be upheld because of its similarity to Maryland's law, said William McGeveran, an associate professor at the University of Minnesota Law School.

"Plenty of people don't like this system," he said. "They think it's not comparative to fingerprints. But as a legal matter, as a legal document, those people have lost the argument."

Families of missing people are optimistic that further advances in forensic science can help solve cases.

"It's very difficult living your life with so many questions and a lack of answers," said Patty Wetterling, chairwoman of the National Center for Missing and Exploited Children. Her son Jacob was abducted in St. Joseph in 1989 and is still missing.

"If this in some way helps heal some families and communities, it would be a great tool," she said. "And why not use the tools that we have?"

Others maintain concerns about the long-term storage of the DNA samples. Teresa Nelson, legal director for the American Civil Liberties Union of Minnesota, said that though an agency may insist it only looks at certain parts of the DNA, it can revisit the samples for further analysis.

"Technology for one purpose often morphs into another purpose when we find it useful," she said.

For now, Dakota County is the only jurisdiction to announce plans to collect DNA samples before conviction. Backstrom said he recently shared his legal analysis with other county attorneys and suspects more may adopt the same approach.

But Nelson questions expending resources to implement something that could be thrown out if it goes before another judge.

"If I was advising a county and Dakota County steps forward and says they're going to start doing this, I'd say, 'Why don't you hang back until we know what they're doing is legal,' " Nelson said. "Let Dakota County put their neck on the line."

Stephen Montemayor • 952-746-3282