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SACRAMENTO � A Colorado prosecutor says he may sue or even pursue a warrant to gain access to a DNA sample that the California Department of Justice doesn’t want him to have. Denver District Attorney Mitchell Morrissey said a California offender’s DNA, available to investigators through a federal database, partially matches biological evidence collected at the scene of an unsolved rape. The partial match suggests the unidentified California offender may be a blood relative of the rapist. Morrissey wants access to the DNA sample to perform another test that would either confirm or rule out that the felon is related to the rapist. But in his last days in office, outgoing Attorney General Bill Lockyer rejected Morrissey’s request. Weeks later, so did Lockyer’s successor, Jerry Brown. Both men said that handing over the sample would violate California’s constitutionally established privacy standards while inviting an unwanted fight in the Ninth Circuit U.S. Court of Appeals. Brown spokesman Gareth Lacy said that while Department of Justice officials frequently review their database-sharing policies, as it stands now “the only time we’ll reveal the information is if it’s an exact match.” That’s left Morrissey pondering his options, which he said include working with his local U.S. attorney’s office on a federal warrant. He also plans to pigeonhole Brown at a law enforcement convention this fall. “The attorney general’s office says there’s no statutory authority to do this,” Morrissey said. “I say there’s none to prohibit it.” At stake is access to the world’s third-largest DNA database, which includes almost 1 million samples taken from California felons and those charged with, though not necessarily convicted of, certain violent crimes. The collection provides between 150 and 200 links to cold cases each month, Lacy said. That number will only grow � in 2009 California starts taking DNA from every adult arrested for a felony offense. In the meantime, California and other states are wrestling with what to do with so-called familial DNA searches like the one Morrissey is requesting. Supporters say that positive tests can lead investigators to a sibling, a parent or a child who may yield new clues � or an arrest. Federal rules once blocked the sharing of DNA samples in partial matches. But Morrissey successfully lobbied the FBI last year to drop that restriction, giving states the ability to trade information. Morrissey took advantage of the rule change to further investigate two partial DNA matches linked to felons in Oregon and Arizona. Both states cooperated, although additional tests showed that neither offender was related to the suspect being sought. California, however, balked. A June 2007 policy memo to Brown from Deputy Attorney General Michael Chamberlain argues that expanding access to the state’s DNA database for partial matches would threaten “the delicate Fourth Amendment balance” between California’s crime-fighting interests and personal privacy protections. “The risk is real, especially in the Ninth Circuit,” Chamberlain wrote. “The Ninth Circuit Court of Appeals has demonstrated hostile skepticism of the constitutionality of DNA database programs even when operated in a ‘traditional’ manner.” Chamberlain cites Judge Stephen Reinhardt’s withering dissent in United States v. Kincade, 379 F.3d 813 � the case that ultimately upheld the federal government’s DNA database program � which warned of creating a slippery slope toward “suspicionless searches.” That argument makes Rockne Harmon furious. Harmon, a DNA specialist and senior prosecutor in the Alameda County district attorney’s office, has tried unsuccessfully to get more information from the state about a sample that partially matches evidence from a rape case in his jurisdiction. “The idea that prosecutors are trembling in their boots from a dissent in a Ninth Circuit case is pretty troubling to me,” Harmon said. “I thought we were supposed to do the right thing and prove [the court] wrong. We do have another place to go if they are wrong.” The American Civil Liberties Union and defense attorneys have raised other concerns about familial searches. They argue that such inquiries would unfairly identify innocent relatives, creating a sort of guilt by association. Critics also say expanded searches would subject African-Americans and Latinos, who constitute a large portion of the prison population, to greater police scrutiny. Harmon downplayed such criticism and said using familial searches would ultimately exonerate the wrongly accused in addition to finding the guilty. Back in Colorado, Morrissey said he has offered to send his suspect’s DNA to California so that officials here can perform additional tests without ever revealing the offender’s identity to him. So far, Morrissey said, California officials haven’t taken him up on his offer.

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