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Assistant Public Defender Dale Jones is a happy man. Five years ago, he asked the New Jersey Supreme Court’s Criminal Practice Committee to recommend that DNA samples be taken of anyone convicted of a violent crime for potential use as exculpatory evidence. The committee turned him down, after hearing county prosecutors’ protests that they didn’t have the storage facilities to hold that type of physical evidence nor the money to pay for laboratory storage. But this summer, the state legislature handed Jones exactly what he wanted. Now awaiting New Jersey Governor Christine Todd Whitman’s signature is a bill that would require a DNA sample to be taken from anyone convicted of a violent crime. The results will be placed in a massive database, presumably to help determine whether that convict committed another crime. Attorney General John Farmer Jr. is pushing Whitman to sign the bill, arguing that it will prove to be an invaluable crime-fighting tool and one that will help ensure that more convictions stand up on appeal. While Jones recognizes that DNA evidence can be a double-edged sword, he says he’s pleased with the result. “Whether this was an unintended consequence or not, this office is getting what it sought,” says Jones. “This is ultimately going to exonerate some folks.” The bill, S-439, sponsored by Sen. Nicholas Sacco, D-Hudson, and Sen. Jack Sinagra, R-Middlesex, overwhelmingly passed the Senate and the Assembly on June 8. But it has sat dormant since then. Jayne O’Connor, a spokeswoman for Whitman, says the governor’s counsel’s office is studying the bill’s potential constitutional implications, as well as other factors on which she would not elaborate. The American Civil Liberties Union of New Jersey plans to challenge the law in court if it is enacted. “We have a number of concerns regarding the collection of DNA evidence,” says Executive Director Deborah Jacobs. “We believe the government is continuing its attempt to expand the body of people it collects data on.” “There are all kinds of privacy issues surrounding this,” she says. “Keeping that much information about a person in a database makes the system very prone to abuse.” The law would amend the DNA Database and Databank Act of 1994, N.J.S.A. 53:1-20-17 et seq., by expanding the list of criminal offenses for which a conviction requires the taking of a blood sample for DNA testing and cataloging. As the statute stands now, samples are taken only from sex-crime convicts. The amended law would apply to those convicted of murder, manslaughter, aggravated assault or kidnapping. Defendants found not guilty by reason of insanity would also be subject to the law, as would juvenile defendants. If the bill is signed, New Jersey would join a growing number of states with similar laws based on the recommendations of the U.S. Department of Justice’s National Commission on the Future of DNA Evidence. At least two legal challenges to those laws have failed. Each was based on the argument that requiring convicts to submit blood samples violates constitutional guarantees against unreasonable searches and seizures and implicates due process rights and the right against self-incrimination. In the first ruling, Bolling v. Romer, 101 F.3d 1336 (10th Cir. 1996), the court rejected a challenge to a law requiring that sex offenders submit a saliva sample for use in establishing a DNA databank. The ACLU did have one preliminary victory in Massachusetts. It persuaded a Superior Court judge to issue a temporary injunction blocking the state from collecting blood samples without probable cause and a warrant. That order, however, was vacated by the Supreme Judicial Court of Massachusetts in Commonwealth v. Landry, 429 Mass. 336 (1999). The New Jersey bill, S-439, provides that people who are convicted of violent crimes and subject to testing are required to pay for their own tests. But the Office of Legislative Services notes that most inmates are indigent and will be unable to cover the cost. But co-sponsor Sacco says that in a state budget that now stands at $21.5 billion, the additional cost is minimal. The Assembly Appropriations Committee, working with data provided by the state police, said the average cost for a single DNA test is $41.60 — $1.60 to collect a blood sample and $40 to test it. If the state collects 5,000 samples a year, that amounts to a total cost of $208,000. The state Department of Corrections, which would be responsible for conducting the tests and then forwarding the results to the Attorney General’s Office and the federal database, has no problem with the legislation, says department spokesman Chris Carden. “If it becomes a law, we will comply with the law,” he says. Assistant Public Defender Jones calls the bill “a tool for justice.” For years, he says, defense lawyers have argued that, since reliable DNA mapping is readily available, the state should be required to provide the test if a defendant argues that he or she is innocent and that a DNA test would prove that. “It is a way to determine guilt,” he says, “but also a tool for exoneration. I’m all for it. “I guess I’ve been handed by the legislature what I couldn’t get from the supreme court.”

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