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In one of several recent DNA dragnet cases that pit civil rights against crimefighting, prosecutors and a defense attorney in Nebraska are battling over whether police crossed the legal line when they tested a group of black men in connection with a series of rapes. The dispute stems from a warrant that officers obtained to get the names of as many as 30 black men from their employer, the Omaha Public Power District. After police questioned some of the men, they obtained DNA samples taken from saliva swabs to see if they matched DNA retrieved from the crime scenes. None of the samples matched. The situation in Omaha highlights a growing tension between the right to privacy and advances in DNA technology used to catch criminals. The Omaha investigation involves four rapes in the area during the last two years. Police obtained a warrant, which remains sealed, requiring the Omaha Public Power District to turn over the men’s names. Police reportedly sought the warrant based on a tip that the rapist was a black male working at the power district, which is a subdivision of the Nebraska state government. According to Omaha City Prosecutor Martin Conboy, police then questioned about 15 of those men, many at their homes, and requested DNA samples from them. The police conducted the DNA tests using equipment paid for with a recent $197,000 federal grant. Defense attorney J. William Gallup, with Gallup & Schaefer in Omaha, filed a motion to unseal the warrant, which prosecutors argue should remain sealed during the ongoing criminal investigation. Gallup represents a man who also was questioned by police and was required under a separate warrant to submit to a DNA test, which did not match the crime scene samples, he said. Some of the Omaha Public Power District employees have contacted him, Gallup said, and he wants the warrants unsealed to determine their scope and legality. They are concerned that their privacy rights may have been violated, he said. Warrants still sealed Although Douglas County Court Judge Jeffrey Marcuzzo ordered the warrants unsealed in August, city of Omaha attorneys have appealed that decision. The warrants are sealed while the appeal is pending. Conboy, the city prosecutor, said race was a factor in selecting the men “as a part of the characteristics of suspects based on numerous reports.” He compared the police’s conduct “to relying on eye color or shoe size.” However, he said that Gallup’s concerns about the DNA tests “are healthy ones.” “You can see how [DNA testing] is attractive and expedient,” he said. “But there is an element of uncertainty about how it works.” Part of Gallup’s concerns are the consequences for people who refuse to submit voluntarily to DNA tests. They may be pegged as suspects simply for asserting their privacy rights, he said. The same concerns were raised in Oklahoma after investigators sought DNA samples from more than 200 people in connection with the rape and murder of a dance student at the University of Oklahoma in 1996. As in the Omaha case, most of the DNA samples were voluntarily given. Still other criticism of DNA dragnets relate to the fate of the sample once it is in police custody. Some worry that the genetic information may be passed on or misused. Last spring, police in Charlottesville, Va., announced that they were scaling back on a dragnet in which they had asked hundreds of black men to submit saliva swabs to help solve a serial rape case. Police said that any further DNA samples obtained would be returned to the person or destroyed. “What happens to the information needs to be carefully addressed,” Conboy said. Duke Law School Professor Erwin Chemerinsky said that although he is more troubled about DNA dragnets where potential suspects are forced to provide samples, voluntary-submission cases also have their problems. “It is completely inappropriate to use the refusal to give a sample as the basis for probable cause,” he said. He added that the Omaha case was particularly thorny because of the race-based selection. “Whenever law enforcement uses race, it’s troubling,” he said.

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