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Man Sues for Return of DNA Sample Taken in Louisiana Serial Killer Hunt

Aired May 29, 2003 - 20:14   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

ANDERSON COOPER, CNN ANCHOR: According to "USA Today," more than 600 men gave DNA samples to Louisiana police in an attempt to identify the killer before Lee was arrested. Now one man is suing to get his sample. But authorities say they are keeping all of them. It raises questions of privacy, including whether the samples should have been collected in the first place.
We're joined by two guests. Paul Rosenzweig is a senior legal research fellow for the Heritage foundation Center for Legal and Judicial Studies. He is in Washington.

And Barry Steinhardt is the Director of the ACLU Technology and Liberty Program. He is here in New York.

Gentlemen, thanks for being with us. Barry, I want to start off with you. What is the problem in your opinion with the police just keeping these samples?

BARRY STEINHARDT, DIR., ACLU'S TECH. & LIBERTY PROGRAM: Well, you know these are horrible, unspeakable crimes. And what's so frustrating is the police use this DNA roundup with no obvious purpose, not only to deprive people of their rights but waste police resources.

COOPER: But they said it was voluntary.

STEINHARDT: Well, you know, it's really not very voluntary when police come to you and say, give us a sample or we're going to consider you a suspect and we're going to take additional action. It's really a mistake to call this voluntary. Sort of an illusion to call it voluntary.

COOPER: So you're against the original gathering of this, but you say it should -- the DNA samples at this point at least should be given back?

STEINHARDT: The police should have done what they actually did with this arrest. And I'm assuming this man is innocent, he's entitled to his day in court. But they had evidence that they presented to a court, they got a warrant, they did the tests, they say they got a match. That's the proper way to do these things.

COOPER: Paul, you oppose giving samples back. Why? PAUL ROSENZWEIG, THE HERITAGE FDN. CTR. FOR LEGAL & JUDICIAL STUDIES: Well, first of all, let's go back to the idea of consent. It's a fiction to say it's not consent because the police tell you truthfully what is going to happen as a result of refusal. The law has been that since the 1960s. The Supreme Court case called Schnecloft (ph) v. Bustamante (ph) says that consent is voluntary in that sort of situation.

So part of the reason for not giving it back or at least thinking about not giving it back is the nature of the consent that went into the first instance...

COOPER: But with these people who are suing, this gentleman in particular, but a lot of people out who had their samples taken, are saying is why should the police if -- you know (UNINTELLIGIBLE) they haven't done anything, the police allegedly have the suspect in custody -- why shouldn't I get my sample back? Why not?

ROSENZWEIG: Well we've never had any provisions for that in the law. We have -- we can build those in. We can change the laws now to understand what DNA is about. And it's true that the law hasn't caught up with the reality of the situation as it is.

But throughout history, when the police take evidence or voluntarily given evidence in their pursuit of a criminal case, there's no right of return unless that's the condition of the consent that is part of the voluntary disclosure in the first instance.

STEINHARDT: Well to begin with, of course this consent is illusory and I think Paul knows that. But you know to have...

COOPER: Because you're saying there's an element of coercion involved?

STEINHARDT: There's absolutely an element of coercion.

COOPER: Because in some of these cases, even when the people said they weren't going to give the sample, court orders were issued to force them to give the sample.

STEINHARDT: That's right. People knew quite well what would happen to them if they didn't cooperate here, if they didn't provide a sample. They would become suspects, they'd be interrogated, they'd be subjected to much worse treatment than if they simply gave the sample. So I think it's an illusion to call this voluntary.

But you know there was a case in Ann Arbor, Michigan where the same fact pattern arose. And what the court said there was that there was a law, it's called the Constitution of the United States, and that the individual who, quote, "voluntarily" gave a sample under these situations, which can only be described as duress, was entitled to the sample back.

COOPER: Paul, if your DNA had been taken, wouldn't you want it back? Or would you want it back? Would you be concerned about how it might be used floating around in some police station somewhere? ROSENZWEIG: Well first off I wouldn't have given it voluntarily in the first instance. At least not without conditioning its return.

But if our concern is misuse of the DNA by the police, then the right answer of course is not to deprive the police of any opportunity that they have to conduct investigative inquiries like this but it is to put limits on what they can do afterwards. It is to say through law or regulation or police provision that they can only use it for the purposes, for the initial purpose for which it is taken by law or regulation.

I know the Michigan case relied upon the Constitution, but I think even Barry would acknowledge that that's a strained interpretation. That had it been appealed to any superior court probably wouldn't have withstood scrutiny. It's not..

COOPER: We're going to have to leave it there. Paul Rosenzweig and Barry Steinhardt, appreciate both of you joining us tonight. Thank you very much.

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