Wednesday, December 19, 2018 Elyria 27°
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Use of familial DNA raises privacy concerns

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    A BCI employee stands next to a photo of Justin A. Christian, the suspect in an attempted kidnapping in Elyria and an abduction in Cleveland.

    BRUCE BISHOP / CHRONICLE

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Legal experts say the DNA process that led authorities to accused child abductor Justin A. Christian raises privacy and other concerns.

Christian, 29, was indicted by a Cuyahoga County grand jury Monday on three counts of rape, eight counts of kidnapping, two counts of aggravated burglary and a single count of tampering with evidence stemming from an attempted abduction of a 10-year-old girl in Elyria and the kidnapping and rape of a 6-year-old girl in Cleveland.

The charges against Christian include sexual motivation and sexually violent predator specifications that could add years to any prison sentence he receives if convicted.

After the Cleveland kidnapping in May, investigators were able to link the two crimes using DNA taken from a stepladder Christian touched in Elyria with DNA recovered in Cleveland.

Although that DNA wasn’t a match for anything in the state database, the Ohio Bureau of Criminal Investigation conducted a familial DNA search. That testing led to a link to a relative of Christian in the system and from there, additional testing and investigation led police and FBI agents to Christian.

Once Christian was arrested, Elyria police Capt. Chris Costantino said, a DNA sample was taken from him and sent for comparison to the DNA taken from the stepladder in February and from the 6-year-old victim in Cleveland.

Costantino said that Christian’s DNA was a match to the DNA collected as evidence in the Elyria and Cleveland cases.

Law enforcement has hailed the use of familial DNA testing as an effective investigative tool that has the ability to aid police in the search for criminal suspects whose DNA isn’t listed in state databases.

Ohio Attorney General Mike DeWine authorized the BCI to start researching familial DNA searches in 2012. The state purchased the required software and had it validated. BCI then developed a 12-page protocol to outline the cases that would be used for familial DNA searches.

Yet some Cleveland-area attorneys and legal scholars say familial DNA, while useful, raises concerns.

Ian Friedman, a criminal defense attorney and adjunct professor of law at Cleveland-Marshall College of Law, said familial DNA testing is a backdoor method allowing government to ascertain the most private information about an innocent person without their consent.

In Ohio those arrested on felony-level charges must provide DNA, even though they are presumed innocent until proven guilty, Friedman said. DNA profiles, whether of those arrested on felony charges or those tested in investigations of criminal suspects, stay in databases, Friedman said.

“Each person looked at will have their name generated in police investigative reports subject to public records laws,” Friedman said. “People’s names will be shown as suspects in heinous matters. That’s out there for good, and the problem is, once someone is cleared, we don’t have a system of purging.”

Jonathan Witmer-Rich, a professor of law at Cleveland-Marshall College of Law, said use of familial DNA expands the database.

“You’re expanding the reach of the database by scooping in a bunch of presumptively innocent people,” Witmer-Rich said. “If we think we can throw them in, why not throw everyone in?”

Friedman said familial DNA testing also could lead to an even greater proportion of minorities and poor in the justice system than which already exists.

“Any time you see unfairness, you’ll see race and economic hardship, and that’s what you’ll see with familial DNA testing,” he said.

Witmer-Rich said law enforcement might also inadvertently reveal family relationships people were otherwise unaware of.

But despite concerns with familial DNA testing, Friedman said people will likely find it hard to see any downsides when the process is effectively used to apprehend criminals, even though familial DNA testing means anyone can be brought into the system by being related to someone.

“It’s difficult to raise these issues in the face of the most recent prospect that a serial abductor has been taken off the streets,” Friedman said. “A lot of people will say, ‘Who cares?’ because people don’t care about the criminal justice system unless they have been touched by it.”

Friedman said such people should ask themselves if they are OK with everyone nationwide providing DNA samples to make the system fair.

Most people would likely oppose handing over their genetic profiles to the government for a universal database, he said, seeing it as an intrusion.

“We know perfectly well that if police came to people’s houses to swab for DNA, people would be up in arms,” Friedman said. “That’s how they need to think about this. Not just, ‘Oh, it’s those people.’ ”

Both Friedman and Witmer-Rich said they expect to see familial DNA testing being used more in criminal investigations now that it has been used in a high-profile case. Both also said they expect the testing process to be examined in courts for years to come.

Reporter Brad Dicken contributed to this story.

Contact Jon Wysochanski at 329-7123 or jwysochanski@chroniclet.com. Follow him on Twitter @JonWysochanski.



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