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An FBI-chartered jet flew into Baton Rouge, La., airport on May 28, bearing accused serial killer Derrick Todd Lee from Atlanta. Not quite coincidentally, state legislators a few miles away were reviewing what could become the nation’s most intrusive laws to make possible the DNA testing of suspects. Lee, a father of two, is being held in a string of rapes and murders that terrorized Baton Rouge for months. He was charged on May 26 after police linked his DNA, taken during the investigation of another crime, with that found on one of the murder victims. More than 1,000 Baton Rouge-area men had been tested since the police discovered that one person was likely responsible for murdering five women during the past year. The arrest of Lee, a 34-year-old truck driver, came as lawmakers in Louisiana were deciding to expand the scope of DNA seizure from those who run afoul of the law. Louisiana is among 32 states considering bills this year to require more people to submit DNA profiles for future comparison with samples from crime scenes. NATIONAL PUSH The movement, controversial because of civil liberties worries, is the latest phase in the rapid growth of the use of the genetic code in U.S. law enforcement as not just a prosecutor’s tool but also a police investigative one. All 50 states have enacted laws to force the collection of DNA samples from inmates convicted of sex crimes. In 1998, only five states had passed laws requiring that some or all convicted felons be tested. That number had grown to only seven by 2000. In the 2 1/2 years since, 28 states have passed such legislation. Bills under wide consideration would expand the DNA sampling list to include all convicted felons. The idea is backed by the FBI, police chiefs, district attorneys, crime labs and victims’ groups. Louisiana, going even further, has given preliminary approval to DNA sampling of everyone arrested. Fewer than half of 13.7 million people a year arrested in the United States are convicted of a crime, Justice Department statistics say. Proponents of the idea say the identification and arrest of Lee will help persuade lawmakers in other states for the need to start collecting DNA at the time of arrest. Had an “arrestee testing” law been in place 10 years ago, Lee might have been caught quickly. He has a long list of peeping Tom, stalking and battery arrests. “They had the knowledge to prevent this serial killer’s evolution back in the ’90s. But they didn’t have the law or the funding,” said Lauren Waits of Alpharetta, Ga., acting executive director of the National Rape Evidence Project, which raises private money to fund DNA analysis of untested “rape kits.” “That’s more of a statement about human frailty,” she said. “Often it is the horrific episodes that teach us what educated people told us we should have known all along.” A number of states are thinking of going beyond the model law, or have done so. Some are considering getting samples from juveniles adjudicated as delinquent. Virginia has passed a law to require swabbing at the time of indictment for certain crimes. Colorado and New York, like Louisiana, are looking at “arrestee testing” legislation. A Vermont bill would require genetic “fingerprinting” of convicted pornographers and possessors of child pornography. Utah has enacted legislation to swab those convicted of immigration violations. Attorney General John Ashcroft on March 11 proposed spending $1 billion over five years to analyze 350,000 unexamined DNA samples taken from crime scenes, to pay for the testing of a backlog of specimens drawn from convicted sex offenders and inmates and to develop technologies that compare samples in a fraction of the time it now takes. “It works. That’s why it’s explosive,” Philadelphia Deputy District Attorney Ronald Eisenberg said of DNA testing. “It’s like a snowball rolling downhill.” In Great Britain, where DNA profiling was developed, police have built a database from about 445,000 arrestees. They have made about 38,000 matches since 1995. U.S. police have been slower to use DNA technology. Now, however, the FBI is building a national DNA database and offering cash grants to states that collected samples from sex offenders. Typically, the DNA is taken in a mouth swab. Processing a sample to create a profile costs about $50. It’s stored locally, but a written version of parts of the genetic code is sent to the FBI for storage. If a crime scene yields a trace of, for example, blood, semen, vaginal secretions, sweat stains on T-shirts or saliva on a cigarette butt, a technician can code the DNA and look for a match. If a match with an individual is found, the authorities have ground for getting a court order requiring the individual to surrender a blood sample for a full test. The DNA Identification Act of 1994 formalized the FBI’s authority to establish a national index. Called CODIS, the database has about 250,000 DNA profiles. The chief of the FBI’s Forensic Sciences Unit, Dawn Herkenham, drafted the proposed legislation that states, including Louisiana, have used as a template. Herkenham said that she has traveled the country testifying before legislative committees trying to persuade states to start by swabbing convicted sex offenders, then move to include other classes of criminals. “We have always advocated for the expansion to all felonies,” said Herkenham, who now works for the FBI’s chief contractor handling CODIS. Officials say the FBI chose 13 identifiers for use in its profiles because they do not reveal intimate details, such as vulnerability to cancer or other medical conditions. The FBI requires states to limit access to the DNA database before it makes grants or accepts the information. However, critics including the American Civil Liberties Union (ACLU) note that the police keep at least half of the biological material from the swab, not just the limited amount stored in written form by the FBI, and say it could be analyzed to reveal private information. “While the FBI would like us to believe that the samples will never be used for anything besides catching criminals, the sad truth is that unless the samples are destroyed at some point they will be used improperly,” ACLU Associate Director Barry Steinhardt told Congress in 2000. The organization says protections are weak in Massachusetts, Louisiana, South Carolina, Nevada, New Jersey, Mississippi, Utah and North Dakota. POSSIBLE MISUSE Arthur Caplan, a specialist in bioethics at the University of Pennsylvania, noted that the architects of the DNA database are police officers and district attorneys whose objective is to catch and convict criminals and so overlook the possible misuse of data. “They don’t run managed-care facilities or insurance companies,” which conceivably could use DNA material to identify high-risk patients, he said. Such issues are being overlooked in the push to DNA profiling, Caplan said. “Criminal law probably more than any other area of law tends to develop as a result of crisis and public fear,” said Stuart Green, an assistant professor of law at Louisiana State University. “The serial killer is as good an example as any.” The southern Louisiana serial killings have been widely cited as the Louisiana Legislature discussed 27 DNA bills. One would require sampling of police officers, and another would test university employees — groups first seen as possible sources of suspects in the murders. “I didn’t have a single conversation about this bill that didn’t include the serial killer,” said Jay Dardenne, the chairman of the Senate Finance Committee, whose district includes the home of one of the victims. Dardenne sponsored the main bill at the request of the Louisiana State Police Crime Lab. He said the primary motivation was to qualify for a federal grant that would help pay for clearing a backlog of about 3,000 untested DNA samples. Dardenne compared the environment surrounding the murders to that after Sept. 11, 2001, which produced the USA Patriot Act and other legislation aimed at fighting terrorism. “We are … taking these actions in light of this very real threat to women in south Louisiana,” he said. For a decade, Baton Rouge had not noticed that the murders of about 30 women remained unsolved and that nearly a dozen more had disappeared. On July 9, 2002, the police announced that DNA showed that the same man had murdered two victims. Three days later, a middle-aged mother was abducted from her home. Her body was found in a nearby swamp and was linked to the other murders by DNA testing. PUBLIC FEAR Women filled self-defense classes. Stores sold out of pistols and pepper spray. The television show “America’s Most Wanted” featured the city twice. Gruff and lacking media savvy, Police Chief Pat Englade was pummeled with criticism about his handling of the investigation. Police put up roving roadblocks on paths the victims frequented in order to question motorists. They began asking “volunteers” for DNA samples, including all the male employees of a car dealership. The identity of several of those who proved reluctant to submit samples when asked to volunteer slipped out of the otherwise tight hold on information. On May 5, police officers in suburban Zachary, La., who were investigating the disappearance of a nurse secured a court order to take a DNA sample from Lee. He lived a few miles away in St. Francisville and was a suspect because of his criminal history and because he had been seen in the nurse’s neighborhood. The state police crime lab on May 25 matched Lee’s DNA “fingerprint” to that found on the body of Carrie Yoder, a Louisiana State graduate student from Dade City, Fla., according to Lee’s arrest warrant. Yoder was the fifth identified victim of the serial killer. She was killed during the Mardi Gras holiday in early March. Lee had gone to Atlanta, a fact authorities discovered from records of phone calls to his girlfriend. He was arrested by the Atlanta police at a tire store on March 27.

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