Anthony Dias is the poster boy for why police and prosecutors hope Washington will join a growing number of states that require people to give DNA samples as soon as they're arrested for a serious crime, rather than waiting until they're convicted.

In 2005, Dias was released on bail while facing a felony hit-and-run charge in Pierce County. He went on to commit crimes against 19 more people before the year was up, including a half-dozen rapes. If he had given a DNA sample after his hit-and-run arrest, detectives could have caught him after the first rape – not the last.

“By the time he committed his next rape crime, he could have been identified, arrested and taken off the streets,” Charisa Nicholas, who was tied up and forced to watch as her roommate was raped, told lawmakers recently. “My case would have been the first case prevented.”

Nevertheless, the rush to expand DNA's use in criminal investigations worries privacy advocates, and courts around the country have disagreed about whether such laws violate the 4th Amendment to the U.S. Constitution, which protects people from unreasonable searches and seizures. Many judges have found that routinely collecting DNA from convicts is OK because, among other reasons, committing a serious crime reduces their expectation of privacy. It's not clear that reasoning would extend to people who have not been convicted and who are presumed innocent.

“The way judges come out depends in a sense on how much trust they have in the government,” says Penn State Law School professor DH Kaye, who tracks the issue. “Some judges say, `What's the big deal? It's like a fingerprint.' But DNA samples contain a lot of information, and other judges say that sooner or later somebody is going to abuse the system.”

Under bills before Washington's Legislature, the state would collect DNA from people when they're arrested for nearly all felonies or for violating a domestic violence protection order. Once a judicial officer finds that the arrest was supported by probable cause, the State Patrol crime lab could test the DNA to create a profile and enter that profile in a nationwide database used to help solve crimes. The cost of the measure – more than $400,000 a year – would be paid with money from traffic tickets.

If the person is exonerated or not charged, they could petition to have the crime lab destroy their sample and profile. The lab would be obligated to do so, but could run a check on the profile first.

About half the states and the federal government have similar laws.

The 3rd U.S. Circuit Court of Appeals in Philadelphia, the highest federal court to rule on the issue so far, closely upheld the federal law 8-6 last summer in a case that could be headed for the Supreme Court. The majority found that although crime labs typically maintain the actual DNA samples, the profiles entered into the national database comprise only a small portion of the information available in the sample. There's no indication that the government has any intent to use the full samples, judges said.

The judges reasoned that the government has a right to confirm the identities of the people it arrests, and there are two parts to someone's identity: who they are, and what they've done. Using the DNA profile to see if arrestees have committed other crimes is a part of the government's interest in their identities, the judges said.

The dissent argued that the government doesn't need the DNA profile to identify arrestees. Officials want to be able to conduct an intrusive search of a person's body – taking their DNA – without a warrant and without suspicion, in hopes of finding evidence unrelated to what the person has been arrested for.

“We do not view a finding of probable cause for one crime as sufficient justification to engage in warrantless searches of arrestees' or pretrial detainees' homes for evidence of other crimes,” the dissent noted.

That's one of the analyses offered by Doug Klunder, privacy counsel at the American Civil Liberties Union of Washington.

“It's collecting really sensitive information about an individual without there being reason to suspect that person of a crime,” he says. “There are many ways that law enforcement could collect information that would help solve crimes. They could rifle through my house every day and maybe they'll find it, but we don't allow that without a warrant. Certainly going into my body is as intrusive as going into my house.”

Virginia's Supreme Court has upheld that state's law, and an appeals court in Arizona has OK'd the law there. However, California and Minnesota appeals courts have rejected their laws, and a panel of the 9th U.S. Circuit Court of Appeals has yet to rule on a federal challenge to California's law, even though the arguments took place 18 months ago.

Washington's proposal could face an even tougher legal road if passed, because the state Constitution is even more protective of people's right to be free from intrusion by the government.

“There's not a definite answer on the constitutional questions,” says Pierce County Prosecutor Mark Lindquist. “But the merits of this are so obvious it's worth having it go up to the courts.”

—(equals)

Johnson can be reached at https://twitter.com/GeneAPseattle

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Wash. considers collecting DNA upon arrest

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Saul Williams – DNA – Video

Posted: 4:40 pm PST February 3, 2012Updated: 6:37 pm PST February 3, 2012

SPOKANE, Wash. — Detectives say that DNA lab results are now driving the investigation into Deer Park resident Chanin Starbuck's killing forward.The results are helping to confirm who was – and wasn't – in the bedroom she was murdered in the night of her death. Spokane County Sheriff's detectives have long had their suspicions about who the killer is but have to eliminate other suspects before making an arrest.Whoever killed Starbuck managed to slip inside her home without breaking doors or windows and knew there would be no other witnesses to the murder. That's why detectives are relying heavily on DNA evidence left at the scene and on the victim. “We submitted a lot of evidence in this case,” Sergeant Bill Beeman with the Spokane County Sheriff's Office said. “We got some results back from the State Patrol crime lab on some of the DNA evidence we submitted.”Investigators want to compare those results against DNA samples provided by people close to Starbuck including her former husband and older children. Sheriff's deputies will not confirm who they've eliminated as a suspect. Several men Starbuck had met through online dating also submitted their DNA and have been interviewed by detectives.”From the results we have been able to eliminate people we have contacted and talked to about this homicide,” Beeman said.”We have to rely on the evidence and what the evidence tells us and just good interviews, talking with people and putting the case together.”Investigators have also reviewed records of Chanin and Clay Starbuck's contentious divorce. At the time of her death Clay owned his ex-wife more than $9,000 in back support and maintenance.”We're aware of how the pay out was supposed to go, we're aware of how much was supposed to be paid out. So yes we look at that as a possible motive,” SGT. Beeman said.Investigators are also looking at other motives including sexual assault.Major Crimes detectives don't have the luxury of speculation as to what happened the night of Starbuck's death.”I'm sure a lot of people have opinions about this case but we have to go into court with evidence and facts and prove that the person who was arrested for this case committed the crime,” Beeman said.The county's Major Crimes unit hasn't had an unsolved homicide since 2005 and detectives say they are confident they will find the answers Starbuck's friends and family are still waiting for. © 2012 KXLY.com. All rights reserved. This material may not be published, broadcast, rewritten or redistributed without prior permission.

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DNA evidence helping to catch Chanin Starbuck's killer

At a hastily called evening news conference, Orange County Dist. Atty. Tony Rackauckas said Eder Herrera, 24, would be released from Orange County Jail and that two additional murder charges would be filed against Ocampo on Monday.

However, he cautioned, “We're not saying that Mr. Herrera is not guilty.”

Ocampo, 23, is already accused of fatally stabbing four homeless men in northern Orange County, what authorities say was part of a weeks-long stabbing rampage that began days before Christmas and ended with his arrest Jan. 13. One victim was stabbed more than 60 times.

Rackauckas noted similarities between the deaths of the homeless men and the Oct. 25 slayings of Raquel Estrada, 53, and her older son, Juan Herrera, 34, at their Yorba Linda home. Estrada was stabbed more than 30 times while Herrera had more than 60 wounds.

He also said DNA found on items taken from Ocampo's Yorba Linda home matched a profile from the double homicide.

“This case has now expanded from murdering random vulnerable strangers to murdering people he knew,” Rackauckas said.

Eder Herrera and Ocampo were classmates, Rackauckas said, graduating together in 2006 from Esperanza High School in Anaheim.

In addition, Ocampo lived about a mile from the Herrera home.

According to a friend who has knowledge of the case, Ocampo visited the Herrera home days before the killings to spend time with his buddies.

The friend, who requested anonymity because the investigation is ongoing, said Ocampo's perplexing mental state was noted.

Rackauckas said Estrada's body was found in the kitchen. Prosecutors believe that Juan Herrera tried to escape out the front door, where police found a large amount of pooled blood.

His body was found in the hallway of the home. Investigators did not find evidence of forced entry.

At 11:30 p.m., Brea police responded to a 911 call from an unidentified person who said they heard strange noises coming from the home.

Eder Herrera, who owned a small business with his older brother, was arrested the next morning as he drove away from a friend's house. Last month, he pleaded not guilty to the crimes.

Rackauckas said Friday that there had been “significant evidence” resulting in charges against Herrera.

On that night, Herrera was driving randomly in the area with a friend. “His behavior was in general suspicious,” Rackauckas said.

In addition, a witness saw a person he believed to be Eder Herrera dragging something from the front door threshold back inside.

Also, near the spot where the anonymous 911 call was placed, surveillance video showed a person who looked like Herrera walking, wearing shoes with a distinctive side pattern that looked like the shoes he was wearing when he was arrested.

Rackauckas said Herrera also made no effort to check on his mother and brother, despite driving by the crime scene with his friend and seeing police cars in front of the home.

That friend urged Herrera to call his family members on their cellphones. They didn't answer.

A task force continued to investigate the crimes, but Rackauckas said that as of Friday afternoon, that there was “no longer sufficient evidence to hold Mr. Herrera in custody.”

At 4:45 p.m., charges were dismissed against Herrera, who was facing 52 years to life in prison, but Rackauckas said that the “door is open” regarding new charges.

Randall Longwith, Ocampo's attorney, said he had not spoken with his client regarding the latest charges. “To me, it doesn't fit,” he said.

Ocampo will be arraigned Monday morning.

The homeless murders shot fear through the transient community and were the first serial killings to shock the region in more than two decades.

After Ocampo's arrest, family and friends recalled how he apparently had sympathy for the poor and, despite being unemployed and broke, donated to the homeless.

They also said after he was discharged from the Marines in June 2010, he seemed different.

nicole.santacruz@latimes.com

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DNA key in case against Ocampo, D.A. says

The legislation for a DNA databank was enacted in 1994 and ever since, DNA has been collected for specific crime convictions. Over the years, crimes in the New York Penal Law have been added to the legislation and expanded the offenses that require collection of DNA. Since 2006, all felony and several misdemeanor offenses have been added to the legislation, resulting in about 48 percent of all persons convicted of crimes having to submit a DNA sample, according to the New York State Division of Criminal Justice Services.

The DNA Databank Expansion Bill was passed by the state Senate on Tuesday and is currently being reviewed in the Assembly Codes Committee.

On Jan. 25, Columbia County Sheriff David Harrison Jr. and Greene County Sheriff Gregory Seeley attended the annual New York State Sheriff’s Association conference, where a news conference was held specifically to endorse the bill and inform the sheriff’s offices of the benefits of having an expanded DNA databank.

Harrison said that more DNA samples are being taken at crime scenes than in the past. Last year, he said, the Columbia County Sheriff’s Office was awarded a grant from the New York State Division of Criminal Justice Services so that first responders and front-line law enforcement, such as Sheriff’s Deputies, could be trained in how to take DNA samples from crime scenes.

The idea of having more individuals in the system will result in higher convictions of crimes that may not have been possible without DNA evidence, explained Harrison.

“Once samples from crime scenes go in … there will be more samples from more individuals and I feel that it will then solve many more crimes,” he said.

When asked about limitations on the law, Harrison said that the individual who is entered into the system must be convicted of a crime, whether misdemeanor or felony.

The benefit to victims and law enforcement will be positive if the DNA databank is expanded to all misdemeanors and felonies, said Seeley, while also resulting in more rightful convictions. In the past, many innocent individuals were convicted of crimes and incarcerated only to end up being exonerated due to the processing of DNA evidence, according to Seeley.

Robert Perry, the legislative director of the New York Civil Liberties Union, is skeptical about the expansion, due to the history of “scandals in recent years involving forensic crime labs in New York State.”

In 2010, said Perry, the New York State inspector general released a report that concluded a forensic analyst with the New York State Police crime lab had falsified reports over a 15-year-period and that last year, the police crime lab in Nassau County was shut down due to mistakes and dysfunction.

“Our lawmakers must establish quality assurance protocols to prevent mistakes and abuse, and protect basic constitutional rights,” said Perry. “It is also critical that access to  DNA evidence is not restricted to our state’s district attorneys so that innocent New Yorkers wrongly accused or convicted can clear their records.”

In contrast, Seeley said that there is no better identifying process than the utilization of DNA. “Once you have somebody’s DNA there is no disputing it. If we can link suspects to crime that will be better for everybody.”

* * *

To contact reporter Audra Jornov call (518) 828-1616 Ext. 2267, or e-mail ajornov@registerstar.com.

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Sheriffs: Expand DNA databank

Advances in DNA technology are helping police catch criminals and prosecutors see that justice is served, an Abilene Police Department official says.

A state combined DNA index system, or CODIS, is helping police solve crimes with DNA evidence left behind at crime scenes.

DNA is traced through blood evidence, fibers and touch DNA, such as latent fingerprints said Abilene Police Department Sgt. Mike Moschetto, who works in the criminal investigation division.

Blood, he said, usually is left behind at burglary crime scenes, often when broken glass is involved in the entry of homes or vehicles.

“Criminals are shedding skin and leaving it behind on the scene, and we're using science to piece it together,” Moschetto said. “It's catching our criminals. All of this is done outside Abilene and it's not the quickest process, but it has helped us solve cases tremendously.”

Whenever DNA is collected, the evidence is sent to a Texas Department of Public Safety lab in Austin that is responsible for keeping a computerized database of DNA.

If a DNA match occurs, the results then are sent back to the agency that requested the evidence. As of December 2011, the lab has aided in 9,413 investigations in Texas and holds offender profiles on 591,816 people since its program launch in 1998.

Although statewide statistics are accessible through the programs website, local numbers are not available, said Rebecca Vieh, CODIS program liaison.

The latest match, Moschetto said, might lead to a man already in prison being charged in an unsolved Abilene burglary. All leads in the case had been exhausted until this year when Moschetto was told blood left at the scene of the crime returned a hit against a man now behind bars in Arizona.

“It initially didn't hit because he had never been arrested before,” Moschetto said. “He's now locked up in Arizona and when they updated the database, it flagged that there was a possible match.”

The next step, said Moschetto, is to secure a warrant against the man to run a subsequent DNA test for verification.

“It always depends on the circumstance, but it's always right,” he said. “I haven't seen an instance where the DNA was wrong if it points to the individual. … It's an interesting process. This technology will continue to grow as time goes on.”

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DNA advances aiding Abilene police in cases

A “significant DNA link” has led prosecutors to drop charges against a Yorba Linda man suspected of fatally stabbing his mother and older brother and instead connect suspected serial killer Itzcoatl Ocampo to the Oct. 25 crimes.

Orange County Dist. Atty. Tony Rackauckas said that Eder Herrera, 24, was expected to be released from Orange County Jail on Friday night and that two additional charges would be filed against Ocampo in the murders of Raquel Estrada, 53, and Juan Herrera, 34.

Ocampo, 23, has already been charged in the deaths of four homeless men, one of whom was stabbed more than 60 times. The slayings occurred between Dec. 20 and Jan. 13 in northern Orange County.

In the Herrera case, DNA found on items taken from Ocampo’s Yorba Linda home matched a profile from the October slayings of Estrada and Juan Herrera.

“This case has now expanded from murdering random vulnerable strangers to murdering people he knew,” Rackauckas said at a news conference Friday.

The younger Herrera, who had been a classmate of Ocampo's at Esperanza High School in Anaheim, was accused of stabbing his mother more than 30 times and leaving her body in the kitchen. His brother was stabbed more than 60 times and the body left in a hallway until police responded to a tip at 11:30 p.m. The person believed they heard strange noises coming from the home.

Rackauckas said there was “significant evidence” that led to the filing of charges against Herrera, including a witness who saw a person he believed was Herrera dragging something from the front door of the house back inside.

“Based on blood evidence at the scene, it appeared that victim Juan Herrera had attempted to escape out the front door before being dragged back inside,” Rackauckas said.

Eder “Herrera spent the evening driving around randomly with a friend,” he said. “His behavior was suspicious.”

Rackauckas said the investigation is ongoing.

RELATED:

Suspected O.C. serial killer kept knife sharpener in bedroom

Serial killer suspect said, 'I did something terrible,' uncle says

Ex-Marine accused in homeless killings often gave money to needy

— Nicole Santa Cruz

Photo: Itzcoatl Ocampo at his arraignment last month. At right is Dist. Atty. Tony Rackauckas. Credit: Irfan Khan / Los Angeles Times

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O.C. homeless slayings: DNA links Ocampo to double homicide

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DNA results in on missing Columbia toddler's mom's car

STAMFORD — A top state DNA analyst testified Friday that a blood sample found at the 2002 homicide of Anna Lisa Raymundo contained the genetic profile of the woman accused in her murder, Sheila Davalloo.

The sample, which came from a bathroom sink handle adjacent to the foyer where Raymundo was found bludgeoned and stabbed to death in her Shippan condo, served as the prosecution's only piece of physical evidence tying Davalloo to the crime scene. Michael T. Bourke, a supervisor at the state's DNA lab, testified that the sample contained a mixture of genetic profiles belonging to Davalloo and Raymundo.

Prosecutors accuse Davalloo of killing Raymundo in order to be with her boyfriend, a co-worker with whom she had an affair in 2001. She faces 25 to 60 years in prison if convicted of murder following her trial at state Superior Court in Stamford.

Davalloo is currently serving a 25 year sentence for the attempted murder of her husband in 2003 as part of the alleged plot to remove obstacles in a fatal love triangle.

Bourke said the probability of finding someone at random with the same genetic profile as Davalloo would be 1 in 8.5 million within the Caucasian population. Bourke said that people of North African and Middle Eastern descent such as Davalloo, an Iranian-American, fall into the Caucasian category when it comes to genetic profiles.

Davalloo, who is representing herself in the case, cross-examined Bourke about the state crime lab losing its national accreditation last year, which left it unable to access the FBI's national DNA data bank.

Bourke said the lab's suspension from the national data bank did not affect cases before it lost accreditation. That means analysts entered samples from the 2002 Raymundo homicide into the data bank, which opened the samples up to comparisons from a national pool of DNA profiles.

Bourke denied seeing any errors with the crime lab's DNA analysis. Davalloo stumbled over questions about the state crime lab's recent troubles, allowing Bourke to evade queries about the lab losing its FBI certification and other problems.

“Isn't it true that the DNA lab flunked it's peer review?” Davalloo asked.

“I'm not sure I understand your question,” Bourke replied.

Davalloo's cross-examination of Bourke continues Friday afternoon. The state may rest its case following his testimony.

Staff Writer Jeff Morganteen can be reached at (203) 964-2215 or jeff.morganteen@scni.com.

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DNA expert testifies in Stamford murder trial

When Robert Blainey was determined to be the suspect in the rape and murder of a North Utica motel owner, Manlius resident Nancy Green was in shock.

In 1988, she had been walking in her neighborhood when she was abducted, dragged into a wooded area and raped by Blainey.

She couldn’t believe it had happened again.

“I was left with the gray matter of my memory, but I got it wrong,” Green said to the crowd at a news conference announcing the governor’s proposed legislation to expand the DNA databank.

She had attempted to identify the perpetrator, but she’d gotten it wrong, and the DNA that was left from the rape wasn’t in the system. So instead of a strong case — which she’d have now — Oneida County District Attorney Scott McNamara said her case ran as a plea bargain, concurrent with another rape case.

“Today, Mr. Blainey’s DNA could’ve been on file,” McNamara said.

Local officials, law enforcement and members of the community gathered Thursday at the Child Advocacy Center to support Gov. Andrew Cuomo’s proposed legislation.

If passed, the legislation would require that those convicted of all misdemeanors and felonies, including those not within the penal law, submit their DNA.

Lt. Gov. Robert J. Duffy said many of those arrested for a serious offense have prior convictions on lesser offenses.

“DNA proves guilt with certainty,” Duffy said. “DNA proves innocence with certainty.”

The sampling would be taken post-conviction and would be done either through state prison or the district attorney’s office by a law enforcement official, he said.

Oneida County District Attorney Scott McNamara said currently 52 percent of misdemeanors do not require DNA submission, and neither do felony DWI or felony animal abuse convictions.

Animal abuse often is a precursor to other violent behavior, he added.

Richard Ferrucci, Child Advocacy Center acting director, posed the question of who would want to tell a victim that their suspect still is out there because their DNA wasn’t collected from the last incident.

“DNA is now what the forensic science of fingerprinting once was,” Ferrucci said.

After sharing her story, Green reminded everyone the importance of DNA in sexual assault cases.

“There’s an easy fix here, and how often can we say that.” Green said.

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Governor wants DNA databank expanded

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DNA Activation

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Sage Science Introduces the BluePippinTM DNA Size Selection System