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October 19, 2017

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Crime victims’ families press for law on DNA collection in felony arrests

Two years ago, in the final hours of the legislative session, one lawmaker summarily killed a bill that would have required law enforcement to collect DNA samples from suspects arrested on a felony charge.

Former Senate Majority Leader Steven Horsford, D-North Las Vegas, refused to allow the measure to come to a vote on the Senate floor, where proponents think the measure would have passed.

“We still believe we had the votes on the floor,” said Jayann Sepich, whose daughter, Katie, was killed in New Mexico in 2003. Sepich had worked with other crime victims and law enforcement to move the bill through the Assembly.

“So it was heartbreaking it came to such a sudden and, to us, unexplainable end.”

Sepich was back at the Legislature today, along with the family of Brianna Denison, who was raped and killed in Reno in 2008; and Ed Smart, the father of Elizabeth Smart, who was kidnapped in Utah in 2002 and found alive nine months later.

They hope to convince lawmakers that collecting DNA at the time of a felony arrest, and adding that information to a national database, could help law enforcement catch criminals before they commit additional crimes.

“This week is the 10th anniversary of the day she was returned to us,” Smart said in an interview. “I remember the day she was found and how I felt so, almost, guilty, that we had Elizabeth back and so many others out there did not have their child or their parent or their relative back.

“This is really about miracles happening because people would be taken off the street and not allowed to commit crimes again.”

Sen. Debbie Smith, D-Sparks, is the sponsor of Senate Bill 243.

Two years ago, when Horsford killed a bill hours before the legislative session adjourned, he gave a short statement referring to “profound implications for privacy rights,” concerns he said hadn’t been resolved in prior hearings of the bill.

Allowing law enforcement to collect DNA samples on a simple felony arrest — not a conviction or a formal criminal charge — is opposed by both privacy advocates and equal rights advocates.

They note the difficulty of expunging an electronic record, which advocates of the bill said would happen to the DNA record of a suspect who was later exonerated. And they note the statistics on the disproportionate numbers of minorities who are arrested and incarcerated.

But the families of crime victims say privacy protections — both in the bill and in the way DNA information is collected and stored — are stringent enough to mitigate abuse.

With the protections in place, they argue the ability to prevent future crimes outweighs critics’ concerns.

Brianna Denison’s killer, James Biela, had raped two women prior to attacking her. Before that, in 2002, he had been arrested on felony assault charges. But no DNA swab was taken at that time — evidence that could have been used to identify him as the attacker in the 2008 rapes.

“Of course, this law had not been in place then,” Brianna’s mother, Bridgette Denison said. “If it had been in place, he most likely would’ve been caught after his first rape. There would have been a DNA match. There’s a huge chance Brianna would still be alive.”

Still, some lawmakers remained concerned about privacy and misuse of the DNA once it's collected.

Sen. Aaron Ford said it’s one thing to use DNA to exonerate those who have been convicted and another “to forcibly take it from someone who was arrested and may be innocent.

“What safeguards can you provide me that can keep us from being concerned about misuse, abuse, fishing expeditions?”

Steve Yeager, a lobbyist for the Clark County Public Defender's Office, said his organization opposes the bill as it’s written, saying DNA should be collected only from those arrested for a violent crime or sex offense.

“I’m here to sort of caution, that we really need to think about who we are taking these samples from,” Yeager said.

He also noted it may be difficult for those who are exonerated to remove their DNA from the database because of the way the bill is written.

Vanessa Spinazola of the ACLU also testified against the bill, arguing it would create a database of “mostly innocent people.” She said only 20 percent of those arrested are ultimately convicted of a felony.

Spinazola also cautioned that a case pending before the U.S. Supreme Court on the legality of DNA databases and collection laws could be problematic.

“Dozens of convictions could potentially be undone if any of the evidence used to convict these folks was obtained using this law,” Spinazola said.

Advocates of the law said the U.S. Supreme Court will likely decide the case well before SB 243 would go into effect.

In the past two years, Sepich noted that advocates persuaded Congress to pass a law providing grants to get arrestee DNA programs up and running — an endorsement the practice by both lawmakers and President Barack Obama, she argued.

She’s hopeful Nevada lawmakers will be persuaded to pass the law.

“We are cautiously optimistic,” she said. “There are those we spoke with last session who were unsure, who seem to have a lot more comfort this session.”

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