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Proposition to take DNA at arrest stirs privacy fears

SF Chronicle
John Wildermuth, Chronicle Political Writer
Saturday, June 12, 2004

A man who lost his brother to an unknown serial killer has bankrolled a November ballot measure that would force everyone arrested for a felony in California to provide a DNA sample.

Although backers of the measure say such a greatly expanded DNA database could clear up thousands of unsolved crimes, civil rights activists argue it would give the government access to too much information about too many people.

"DNA is not like a fingerprint, since getting it is more invasive and it holds information beyond mere identification,'' said Tania Simoncelli, a science and technology fellow for the American Civil Liberties Union. "Storing it permanently for future criminal investigations doesn't comply with the Constitution.''

That's not the way Bruce Harrington, a Newport Beach attorney and developer, sees it. Harrington spent more than $1.3 million to qualify the initiative for the ballot and is confident he'll win the support of California voters in November.

"It's really a shame that California is so far behind when it comes to collecting DNA, when there's compelling information from other states about how effective it can be,'' Harrington said.

He said that under the ballot measure, "At the same time someone has a mug shot and fingerprints taken after an arrest, he'll have a mouth swab (for DNA) and that's it.''

California already requires DNA samples from everyone convicted of a serious felony. The initiative, which does not yet have a ballot number, would immediately require DNA samples from everyone convicted of any felony, as well as those arrested for murder or rape. The ballot measure requires that beginning in 2009, DNA samples would be collected from anyone arrested for a felony.

"Today, with a state DNA database of more than 220,000 samples, we have increased the number of 'hits' from one a year to an average of more than one a day,'' said state Attorney General Bill Lockyer, a co-chair of the initiative campaign. "By including DNA samples from all felons, we should have a database of more than 1 million DNA profiles that will help California law enforcement use this proven, high-tech tool to quickly solve even more criminal cases and prevent more crimes from being committed.''

The crime Harrington really wants solved is the 1980 slaying of his brother and his sister-in-law. Keith Harrington, a 24-year-old medical student at UC Irvine, and Patti, his wife of three months, were in bed when an intruder broke into their Orange County home, bound them both, raped Patti and beat the two young people to death.

In 2000, DNA from the murder scene was matched with evidence from eight other Southern California slayings. It also was linked to the never-identified East Area Rapist, who terrorized Northern California in the late 1970s, raping at least 40 women in a rampage that stretched from Sacramento to San Ramon.

The attacks stopped abruptly in 1986, leading police to conclude that the unknown killer, now dubbed the original "Night Stalker," had either died, moved or been sent to prison.

"I'm firmly convinced that the only way we can solve my family's crime is to find an inmate in for an unrelated conviction who hasn't given up his DNA," Harrington said.

Harrington's efforts haven't always won him friends. He's no fan of state Democratic Sen. John Burton of San Francisco, who he believes has tried to block efforts to expand DNA testing laws.

"All I see and hear from Senator Burton, his staff and his cronies is a buzz saw of opposition and obfuscation, focused more on the rights of prisoners than on the rights of their victims,'' Harrington said in an April 2002 appearance before Burton's Public Safety Committee. Burton denies those charges.

Harrington said it wasn't a hard decision to spend the $1.3 million it took to collect 660,000 signatures for the ballot initiative.

"I was convinced the DNA bills would be stalled forever by the Democratic leadership (of the state Senate),'' Harrington said. "This way I can bypass them, put it in front of the voters and let them decide.

"I don't see how you can put a price on the life of a brother.''

During the fall campaign, opponents of the initiative are likely to focus on privacy concerns and the multimillion dollar cost of the expanded DNA database. While the initiative would boost all criminal fines, including traffic tickets, by 10 percent to pay those costs, opponents argue that would not be enough. The privacy protections in the measure also aren't sufficient to protect the public, said Simoncelli of the ACLU.

"We feel this initiative is impractical, unworkable and unaffordable,'' she said. "The ACLU is not opposed to using DNA evidence, but it's a different question about whether that information should be stored permanently.''

Although the initiative allows people to have their DNA information pulled from the database and destroyed if they have been found innocent or released without charges, it requires a court order and a complicated stack of paperwork before it can be done.

Supporters argue that DNA samples are nothing more than high-tech fingerprints, which already are taken from everyone arrested and stored forever.

E-mail John Wildermuth at .

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