Archive for the ‘Legislation’ Category

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Raped again – by the system

Wed, Jun 8th, 2011

The article written by Chris Asplen has now been published in Gauteng (Saturday Star, 11 June 2011) , KZN (The Witness, 10 June 2011) and the Western Cape (Sunday Argus, 5 June 2011). The Editor of the Saturday Star took it one step further and commented on Chis Asplen’s article in his Editorial. This is what he had to say:

The editorial refers to the article which has appeared in all three major provinces in South Africa, which was originally written and published in an international Forensic Magazine. It is an opinion piece written by Chris Asplen, who was recently in South Africa, and which visit obviously drove him to write this article. It is uncomprisingly direct and honest and very hard hitting insofar as how the international forensic community view our MP’s. I wonder if any of the members of the portfolio committee for police who are ‘reviewing’ the DNA Bill, read this about themselves? And if so, how did it make them feel? I personally, would not like to have the blood of these and future victims on my hands. Perhaps, however they will prove Mr Asplen wrong, and actually get on with the job at hand this year? Well, we live in hope, as do all the rape survivors and future victims…

Forensic DNA Database legislation urgently needed amid rape epidemic

I am a former prosecutor in the United States where I was the advisor to two US Attorneys General on the use of forensic DNA technology and where I was the Executive Director of the US Department of Justice’s National Commission on the Future of DNA Evidence.  My specialty as a prosecutor was the prosecution of sex crimes committed against children. I left the Department of Justice about 10 years ago and began consulting internationally on the integration of forensic DNA evidence into criminal justice systems. I have been fortunate to help over 35 countries realize the potential of DNA technology to protect victims – mostly women and children – from the horrors of rape. I have spent equal time and energy to protect  the innocent – mostly men – from the tragedy of wrongful conviction with the very same technology.

When I first started working abroad, my presentations would often start with a rhetorical question that went something like this:  “What is the most important factor influencing the success of forensic DNA databasing?  Is it the quality of the laboratory performing the analysis? Is it the training and education of the police ensuring that they collect valuable evidence?  Or perhaps the skill with which prosecutors can leverage the probative value of DNA to support their victims’ testimony?” But of course it was a loaded question.  I had my own answer. “It’s actually none of these…” I would say. “The most important factor influencing the potential effect of DNA in any criminal justice system is what the law allows you to do with it.”

Now I am a little biased here.  I am a lawyer by training, by education and probably by nature. But I have a pretty good argument.  You can have the best, most advanced laboratory system in the world, the most rigorous quality assurance procedures, and send specialized crime scene analysts to every crime scene – but those factors mean little if the law does not allow you leverage the full potential of the technology and the evidence.

Nowhere is that dynamic more tragically clear than in South Africa.

I first traveled to South Africa 10 years ago. I left the Department of Justice less than a year earlier and had been invited to participate in a meeting of Interpol’s DNA Expert Monitoring Group in Pretoria.  It was my first trip to the continent so to say that I was excited is an understatement. I did not, in all honesty though, harbor great expectations regarding what I would see from the standpoint of South Africa’s use of DNA technology. But when I saw what the South African Police Service (SAPS) was doing, I was nothing short of astounded.  The SAPS had an automated system for DNA analysis that was unique in the world.  As we toured through the laboratory I realized that it was, at that time,  the most advanced forensic DNA testing robotics system I had ever seen.  I was so impressed that I literally walked out of the lab, got on my phone and called my former colleagues at DOJ trying to convince them to bring Johann and his colleagues to the US so that they could explain what they were doing.  South Africa was going to be a model, not only for Africa, but perhaps for the world.  They had crime statistics that proved South Africa to be one of the most sexually violent places on the planet and they had the capacity and technical sophistication to hit back hard.  South Africa was going to prove the power of DNA like nowhere else.

The automated DNA Robotics system at the Pretoria Forensics Lab

The automated DNA Robotics system at the Pretoria Forensics Lab

Boy was I wrong.

I have just returned from another trip to South Africa, a trip I have made many times since my first visit. And to be clear, it is not the police that have failed, nor is it the technology, nor is it the laboratory personnel.  Rather, ten years after South Africa created one of the most important laboratory infrastructures in the world, the politicians in the South African Parliament have still failed to give police the legal authority to save literally thousands upon thousands of lives with DNA.  Ten years later and South Africa, in contrast with more than 50 countries around the world, still has no legislation allowing for the establishment of a forensic DNA database.

South Africa is a strikingly beautiful country from its coast line at the Cape of Good Hope to Krugar National Park to the wine regions of Stellenbosch.  It is also the economic anchor for sub-Saharan Africa.   It has a technology portfolio that includes a nuclear weapons program (and the wisdom to subsequently dismantle it) a 2002 Noble Prize for work in microbiology and the first human to human heart transplant was performed in South Africa.   And most importantly, it is a country which engineered one of the most significant triumphs of human spirit and potential – the non-violent elimination of apartheid

But South Africa is also a country that, according to the United Nations, ranks second for murder and first for assaults and rapes per capita. 52 people are murdered every day there and the number of rapes reported in a year is around 55,000.  It is estimated that 500,000 rapes are committed annually in South Africa. In a 2009 survey, one in four South African men admitted to raping someone.  Even more insidiously, South Africa has one of the highest incidences of child and baby rape in the world.  It is a country where the belief exists that intercourse will cure or prevent HIV/AIDS and where child rape is used as a method of retaliation against someone else for a perceived wrong.  Children are murdered and body parts used for “traditional” medicinal remedies.  And in a country also cursed with epidemic rates of HIV/Aids, rape takes on an exponentially tragic dimension.

The world holds no shortage of human tragedies.  But most of those tragedies persist because there are no clear, identifiable fixes.  Feeding entire starving countries from overworked, infertile land or generating clean, lifesaving water from dry, parched earth are heavy lifts.  Wars and the conflicts that lead to catastrophic loss of human life have been with us since the beginning of time.  But when it comes to fighting back against serial rapists and pedophiles? I have examples from every corner of the planet of exactly what works and just how well.  There is nothing better at getting rapists off the street, at protecting little girls and, by the way, at protecting those who would be wrongly accused and convicted of those serious crimes than DNA databases.

And what exacerbates the tragedy tenfold is the fact that, unlike many countries with the wisdom to implement DNA databases fully, South Africa already has all the other components necessary to leverage the power DNA technology -the laboratory system, the finances, the education and the commitment by police. There are no other excuses, nowhere  else to place responsibility.

As someone who works regularly in other peoples’ countries, I don’t “call out” or criticize foreign  officials easily or often.  But on a scale unequaled anywhere else on earth, hundreds of thousands of children’s lives are sacrificed because of the failure to act by politicians in South Africa.  The Parliamentary Portfolio Committee responsible for the legislation that would give police the ability to immediately begin taking rapists off the street has avoided acting on the law for years.  The legislation sits in Committee while the worst sexual violence statistics in the world continue to pile up.   Except they are not really statistics. They are terrified woman and little girls staring into the face of horrific violence and evil while they are likely infected with HIV – three more of them just in the time it took you to read this article.

Chris Asplen

Executive Director, DNA 4 Africa

Casplen@DNA4Africa.org

Posted in DNA Detective, DNA Project, Forensic Career, Latest News, Legislation, Links, Newsletter | 9 Comments »

A Disappointing Debate – what do you think?

Mon, May 16th, 2011

For those of you who may have attended the debate at UCT last week Wednesday, you may share my frustration and disappointment insofar as my adversary failed, in my opinion, to address the issues at hand which were: the societal and ethical implications of a National DNA Database in South Africa. Whilst I commend Ms Naidoo for standing up against police brutality and corruption, this was not the topic of debate for that evening, nor was it in any way relevant to the question of which types of profiles should be held on a DNA database and why.

Poonitha Naidoo, Vanessa Lynch & Carolyn Hancock

Poonitha Naidoo, Vanessa Lynch & Carolyn Hancock

As such,  I believe we lost a valuable opportunity for serious, logical and rational debate over an issue which may have far reaching consequences in South Africa . The problem is, to date, no-one seems to be able to come forward and present an argument against the implementation of a criminal intelligence DNA database, which makes any sense at all.

Whilst I admit that I may be biased in favour of the value of a DNA Database for crime resolution (in conjunction with the vast majority of countries in the world with developed DNA Databases!), I am not unfamiliar nor insensitive to some of the privacy concerns of human rights groups. It must also be noted that the DNA Project concedes that the actual DNA reference sample (as opposed to the DNA profile) should be destroyed once a full DNA profile has been obtained and, that there should be an exit mechanism in place to expunge profiles which have not resulted in a conviction following arrest.

As I see it, there are five areas of concern amongst civil rights activists, which I raised for argument in the debate, namely:
1. WHETHER A DNA SAMPLE AND ITS PROFILE SHOULD BE KEPT ON A DATABASE,
2. AND FOR HOW LONG;
3. HOW THESE SAMPLES SHOULD BE OBTAINED FROM INDIVIDUALS;
4. WHETHER THE PRESENCE OF A DNA PROFILE ON A DATABASE REPRESENTS AN INVASION OF PRIVACY;  AND
5. HOW WE SHOULD BALANCE THESE CONFLICTING INTERESTS WITHIN THE FRAMEWORK OF OUR CONSTITUTIONAL RIGHTS IN SA.

In the first place we must ensure that we differentiate between a DNA sample and a DNA profile. 
The physical sample consists of the bodily substance collected from a crime scene or person; the DNA profile is the digitized information that is stored electronically on the Database. Whilst the sample holds the genetic profile, once a DNA profile has been obtained, the DNA sample can be destroyed, provided that it is not a crime scene sample which is evidence and must be kept in the same way as other crime scene evidence.
Of note is that the DNA markers which make up the digital profile in South Africa, are specifically chosen for forensic use because they do not reveal any details about age, ethnicity, race, appearance or medical conditions. You therefore cannot link a DNA profile to an individual’s medical history nor does it point to genetic disorders or susceptibilities. In fact a mughsot tells you more about the person than a DNA profile; as too does your id number. If then we concede that the physical sample is not retained, but only the digital profile, and if access and use to it is strictly confined, then the intrusion into privacy is not particularly grave, while the societal gains in solving and deterring appalling crimes in South Africa through a criminal intelligence database, are very significant.

Vanessa Lynch debating at UCT last week

Vanessa Lynch debating at UCT last week

My second point was in relation to the way in which a sample is collected. Currently, due to the interpretation of the 1977 Criminal Procedures Act, a registered nurse or medical practitioner has to take a full vial blood to generate a sample for DNA analysis. The draft DNA bill calls for the collection of a simple cheek swab/pin prick by a police officer.  No country in the world mandates that samples be taken by blood or medical personnel – Why? It is exceedingly expensive, dangerous and scientifically unnecessary and it has certainly never been challenged as unconstitutional or invasive. Ms Naidoo perceives this act however as a grave invasion of privacy. But, I argue that the mere act of taking of samples from suspects is a reasonable and  proportionate response to serious crime.

Given that this technology is here to stay, as a crucial means of solving crimes, the question is… who should be on the database and why? It is generally agreed, that convicted offenders and crime scene profiles should be retained. The main argument is then around the retention of such material in cases where a suspect is subsequently acquitted or the charge is discontinued….. which leads us to the next point…

Our contention is that there should exist a retention framework for profiles which do not result in a conviction. In the pivotal case of S vs Marper – The European Courts of Human Right forced a change of policy in England that the holding of a DNA profiles from persons regardless of outcome of arrest was disproportionate – a retention framework was proposed which is still being debated.
 Whilst the value of retained profiles from suspects who were subsequently acquitted has been shown to be considerable, there is no other country which allows a blanket retention policy of such profiles, but a retention framework makes sense.
Significantly, in South Africa, a recently passed law allows searching across all the fingerprint databases – HANIS, E-NATIS and AFIS. If we accept that the fingerprint is a unique identifier, just as the DNA profile is, then we are currently already allowing supposedly ‘innocent’ fingerprints to be searched for the purpose of generating a hit or match. We must remember that the presence of a fingerprint on a database does not constitute a criminal record – it is for reference and comparative purposes only. If a hit is generated then it is considered a LEAD in the investigation – it is not an automatic guilty verdict as many seem to suggest. With the high rate of recidivism in SA, it may be proportionate to consider a retention framework whereby a profile is kept for a specified period (in the draft Bill, 5 years has been proposed) after which, if there is no further arrest during that time, it is automatically expunged.

Perhaps then Civil liberties activists seem mostly opposed to the development of a national database on the grounds that state officials might somehow be able to abuse ordinary citizens by using the data that would be contained in it? The argument that information can be abused pre-supposes that the DNA profiles reveal genetic information which is commercially valuable. This is untrue. It is simply a unique identifier. There is no realistic way I can think of in which a government can abuse a Database nor has any case ever been reported of this occurring. But perhaps some reader out there has different views on this, and if so, I would be interested in hearing them. Moreover, the draft Bill provides for strict safeguards and penalties to ensure that DNA profiles are used only for the purpose related to the detection of crime, the investigation of an offence or the conduct of a prosecution.

If a Database is assiduously maintained and strictly controlled in order to strengthen our Criminal Justice System (CJS) and help our forces of law apprehend and prosecute habitual offenders, then we should support the expansion and development of this crime fighting tool in a country which is being held to ransom by a small minority of criminals.

The last point brings me to duty of the State to protect the public from crime. However, it is recognised that in doing so, the State also needs to protect certain ethical values such as liberty, autonomy, privacy, informed consent and equality. Sometimes these obligations conflict and then a balance must be struck between the right to privacy and the right to safety and security. In appropriate circumstances, some of these rights need to be restricted in the public interest and to protect the rights of others.  Legislation should therefore seek to find an adequate balance between the interests of society and the interests of the individual. If we agree that the purpose of the CJS is to permit everyone to go about their daily lives without fear of harm to person or property, then surely it is in everyone’s interest that serious crime should be properly investigated and prosecuted.  As one of the most important obligations of the state is to protect the rights of its citizens, a DNA Database does this and this more than makes up for any minor privacy rights violated by mandatory DNA databasing. In other words, freedom of action has to be restricted in appropriate circumstances – i.e. the response of the state to take action to prevent people from killing or harming one another will inevitably involve some restriction of freedom of action. Laws by their very nature do this (restrict freedom of action) but are in place to ensure that the greater good is achieved.

My final point on the issue is a Utilitarian  one – in other words, what is the VALUE of the science? 
In a country which has one of the highest crime rates,  lowest conviction rates and highest rate of recidivism in the world- the value of the science, in this case, the DNA database,  is very, very high.
So, let us not sacrifice the good for the perfect – if we put proper safeguards in place and maximise the full potential of this powerful investigative tool, we will be doing a good thing – which surely is an aim worthy of pursuit?

What do you think?

Vanessa



Posted in Crime Scenes, DNA Detective, DNA Project, Forensic Career, Latest News, Legislation, Newsletter | 1 Comment »

Meet some of our team

Tue, May 3rd, 2011

We recently appointed another trainer and assistant in the KZN area, Grant Godsmark, a  young and dynamic Genetic Hons graduate from UCT, with a passion for DNA. This weeks blog entry has been written by Grant and looks at the reasons why he thinks we urgently need DNA

Grant Godsmark at a Training Workshop

Grant Godsmark at a Training Workshop

legislation in this country. As it stands, the latest information indicates that the Portfolio Committee’s “study tour” of the UK and Canadian DNA labs  is scheduled for the 24th of June 2011 to the 10th of July 2011. That is a total of 15 days. Wow. Is that not a long time to spend viewing two labs? How do you feel about this? Read how we feel! Let us know what you think, by posting a comment or writing on our Facebook page.

This is what one reader had to say:

“I am working for a Rape Centre, every day I see the people these ministers are suppose to protect. Small children are raped by serial rapist who roam the streets and cannot be arrested or sentenced because the DNA project does not get the urgent attention it needs!!! Why is everything in this great country of us backwards, is money and freedom to do as they wish so important to our leaders. PLEASE wake up and start looking after the innocent!!!!”

Here is what Grant has to say:

Is South Africa missing out on the benefits of using DNA to help apprehend criminals?

We have all watched an episode of CSI, or other detective programs, and so we know how important evidence left at the crime scene can be. In every episode the criminal is caught with the help of evidence (often DNA) left at the scene of the crime. Although things happen really fast on TV….. all the forensic techniques that are shown are actually used by police to help solve crime. In reality DNA profiling is successfully used every day by police forces all over the world to apprehend and convict criminals. So you may be wondering: What are we doing in South Africa?

Well, you will be pleased to know that we have state of the art equipment that is used to analyze DNA evidence found at crime scenes. This equipment includes the world’s first fully automated system that can be used for high volume forensic DNA analysis.  But despite access to this amazing technology, South Africa is not maximizing the use of DNA as a forensic tool. One reason for this is that we do not have the necessary legislation to allow our police force to use the technology to its full potential. In South Africa current legislation does not allow for all people arrested, or convicted of a crime to have their DNA profile placed on the National DNA Database of South Africa (NDDSA). If this was to happen then when police do not have a suspect, and the perpetrator is been previously arrested or convicted, a comparison between the crime scene profile and profiles on the database may provide police with a suspect. Amendments to the current legislation have been proposed which will allow for all evidence collected at crime scenes to be compared to the database and possible suspects to be identified. Click here for more details.

This system is currently being used in USA, UK and Europe with great results. In the UK, in 70% of cases where DNA profiles from crime scene evidence are loaded onto the database, there is a match with someone already on the database. This means that when police have no suspect they are given a lead in the case just by searching the database. Imagine how effective this would be in South Africa where most of our criminals have committed many crimes – we just need to get them on the database once!

Unfortunately, the parliamentary committee tasked with considering the changes in legislation has been dragging their heels since 2009. In July they plan on going on a fact finding mission to the UK and Canada before considering implementing this legislation. This despite the fact that DNA databases have been effectively used by these countries since 1995. So…..why should South Africans, who live with some of the highest crime rates in the world, not be able to benefit from this incredible technology? The reason is simply that a small piece of legislation is the final hurdle keeping us from convicting the people responsible for crimes like murder and rape in South Africa. We all need to fight for this legislation to be passed as soon as possible so that we can make criminals accountable for their actions. We need everyone to support the proposed changes in legislation and to put pressure onto the committee to pass the amendment. All South Africans will then be able to breathe a little easier knowing that if something happens to our loved ones, the SAPS will finally be able to do the best they can to apprehend these criminals.

Written by Grant Godsmark

Posted in DNA Project, Forensic Career, Latest News, Legislation, Links | Comments Off on Meet some of our team

Database for DNA key to full sex crime law

Wed, Apr 13th, 2011

The below article makes for interesting reading insofar as demonstrating the power of a DNA database as well as the implications of not having proper legislation in place – it illustrates that an expanded DNA Database strengthens criminal investigations which in turn provides a safer environment, safeguards the rights of law-abiding citizens and improves trial efficiency. This not only brings comfort to victims and their families, and promotes fairness and justice but also clears innocent suspects and reduces miscarriages of justice.. . What is most poignant is the writer’s observation that long documentation processes, poor administrative efficiency and bureaucracy which have prevented the enactment of proper DNA legislation, are tantamount to being “accomplices” to the murder of the young girl in this story, and many more to come.

How tragic too, that as I write this, I feel that I am preaching to the converted (ie the people who read this blog), when the real ‘accomplices’ in South Africa hold us and future victims to ransom by their lack of efficiency, bureaucracy and ignorance in failing to pass the DNA legislation so desperately needed in SA.

Database for DNA key to full sex crime law
By Sandy Yeh

A junior-high school girl in Yunlin County was recently raped and murdered. A repeat sex offender who had just been released on parole is suspected of committing these acts. As a result of the ensuing public anger, we may finally have a chance to break through the blockade of so-called “human rights groups” that are opposed to amending the Sexual Assault Crime Prevention Act. If approved, judges will be able to follow the example of Megan’s Law in the US and decide to publish the names and photos of repeat sexual offenders as well as the nature of their crime in order to avoid similar tragedies.

Following several child assault crimes that have highlighted the flaws of the act and the rise of the “White Rose” movement in September last year, the legislature is now expected to pass the amendment. Still, the information and monitoring of sex offenders alone will not be enough to prevent them from committing crimes again. Nor will they put an end to sex assault crimes. Just as the “protection order” in the Domestic Violence Prevention Act will not prevent victims of domestic violence from being abused, complementary measures are required. In this case, the most important measure is building a DNA database on sex offenders.

A US newspaper recently reported a similar sexual assault case that happened in Maryland in July 2003, though the suspect was only arrested in Wisconsin years later. Just like the Taiwanese girl, the victim was 13 years old at the time of the crime. The difference is that she survived and the police could take complete samples of the suspect’s DNA. It took some time, but they were able to make a breakthrough seven years later thanks to the strengthening of the DNA database as a result of legislative amendments. When a suspect was arrested for selling marijuana and ordered to submit a DNA sample, a match was found.

In 1994, the US passed the DNA Identification Act to provide legal grounds for DNA collection. In 2000, it passed the DNA Analysis Backlog Elimination Act, authorizing the FBI to integrate DNA databases in different US states and organizations, including a DNA database of officially convicted criminals, missing people and their families, and unidentified corpses. In 2005, it passed the DNA Fingerprint Act, integrating criminals’ DNA and fingerprint data. Last year, it passed the Katie Sepich Enhanced DNA Collection Act to impose DNA collection on all suspects except in the case of a few misdemeanors. By gradually enhancing the laws, the US’ DNA database grew from 460,000 items in 2000 to 2.03 million in 2004 and 8.64 million last year. The number of cases solved as a result has increased more than 100-fold.

Katie Sepich, at the age of 22 was raped and murdered

Katie Sepich, at the age of 22 was raped and murdered

These results were achieved thanks to the US’ employment of modern technology. By strengthening its criminal investigation with the help of the expanded database, the US can now provide a safer environment, safeguard the rights of law-abiding citizens and improve trial efficiency. This brings comfort to victims and their families, and promotes fairness and justice. Furthermore, the strengthened DNA database and improved matching could clear innocent suspects and reduce miscarriages of justice.

Just like the obstacles to the amendment of Taiwan’s Sexual Assault Crime Prevention Act, the amendment of the DNA Sampling Regulations has been delayed since passing its first reading in the legislature in 2008. When the public says the long documentation process, poor administrative efficiency and bureaucracy were “accomplices” to the murder of the girl in Yunlin, one wonders if anyone has looked into whether the legislature is the reason why the law remains stalled.

Posted in Crime Scenes, DNA Detective, DNA Project, Latest News, Legislation, Links, Newsletter | Comments Off on Database for DNA key to full sex crime law

‘Familial Searching’ – an explanation

Tue, Mar 1st, 2011

“While the sins of the father should not be visited on the son, the sins of the son should not go unpunished because the sins of the father are ignored….”

We posted a poll on the website last week asking whether Familial DNA searching should be allowed in SA? [Familial Searching .i.e. a process by which an unidentified DNA profile is run through the state’s DNA data-bank looking not for an exact match but for a close match that would identify a family member of an unidentified perpetrator and could point in the direction of potential suspects.]

Notwithstanding the fact that only 2 people have voted so far, it has caused quite a lot of debate on Facebook! As such, I though that I should use this opportunity to open the debate further, as Familial Searching for criminal intelligence as well as the identification of unidentified bodies is being used in more and more countries throughout the world. It is however not without controversy, and whilst in some cases has been used to identify a previously unknown suspect of a violent crime, it has sparked some debate. This is not to say that the information presented here represents the views of The DNA Project – I am simply going to try and present the facts as objectively as possible and hopefully receive some constructive comment on the subject from some of you who read this blog.

In those countries where Familial Searching is allowed, it is important to remember that searches are only conducted on the National DNA Databanks which hold the profiles of previously convicted offenders, crime scene profiles and arrestees who have not yet been convicted.  Furthermore, a ‘hit’ when conducting a familial search,  does not mean that that person is the suspect – it is simply an investigative lead which may lead the police to the actual suspect who committed the crime. A DNA  Database for Criminal Intelligence is NOT a population database – in other words it is a database containing profiles of crime scene samples and convicted offenders & arrestees and not the general population. A familial search on a National DNA Database will therefore extend the size and reach of the DNA database to effectively include the parents, children and siblings of the offenders and arrestees whose DNA profiles are already stored in databases.

“Familial searching” is being used in some countries for efficient identification of possible crime suspects when traditional investigative efforts fail. Crime laboratories benefit from searching not just for perfect matches, but also for close ones, when trying to connect DNA from unsolved crimes to the DNA of known offenders whose DNA profiles are held in a national database. Because relatives share common DNA profiles, close matches can implicate family members as possible crime suspects.

As experience with familial searching increases, more and more countries will probably embrace the technique. And as they do, so does the need to create policies that will ensure both efficiency and accuracy in case selection, statistical thresholds and follow-up testing and investigation.

For those of you who would like to read more on the subject, the following report compiled by Sophie Rushton (July 2010) for the Australian & New Zealand Policing Advisory Agency looks at both the positive and negative aspect of Familial Searching and Predictive DNA Testing for Forensic Purposes: Report Familial Searching and Predictive DNA Testing 2010.

Case Solved – The Bloody Brick: Craig Harman

This was the first familial search in Great Britain in which the suspect was apprehended and convicted of the crime. In the early morning hours on March 21, 2003, Mr. Michael Little, a 53-year-old truck driver, was driving his truck on a highway in Surrey, when he drove beneath an overpass. A brick was thrown from the overpass and crashed through his windshield. It hit Mr. Little in his chest and caused fatal damage to the heart. Before Mr. Little died, he was able to bring his truck to a stop on the side of the road.

Michael Little

Law enforcement analyzed the blood on the brick and found two DNA profiles, one of Mr. Little and one of another unknown individual. That evening, before the brick was thrown from the overpass, a car had been burglarized in the same town. The burglar could not get the car started and he left his blood at the scene.

The police were able to extract a full DNA profile and it matched the DNA profile on the brick which killed Mr. Little. The profile was run through the DNA Database, but no match was found.

However, the DNA analysis established that the offender was caucasian. A police profiler looked at the details of the crime, and suggested that he was under the age of 35. Also, Surrey police believed the killer lived locally and so authorities performed a DNA dragnet screen involving 350 people from the surrounding area who volunteered to give samples. But still no match was found.

Law enforcement then decided to perform a familial search of white males under the age of 35 living in Surrey or Hampshire. Twenty five people with similar DNA were located including a relative of the suspect whose DNA matched 16 of 20 DNA markers. They interviewed the relative and discovered that he had a 19-year-old brother, Craig Harman, who lived where the crime had occurred. Harman gave his DNA voluntarily and confessed. In April, 2004, Craig Harman pleaded guilty to manslaughter and was sentenced to 6 years.

Case where Familial Searching was used in the USA: It was an unfinished slice of pizza that led to the identification of Lonnie David Franklin Jr. as the prime suspect in the Grim Sleeper murder investigation. But the pizza was just the final clue leading to his arrest. The key break in the investigation, intermittently conducted over 25 years, came when investigators found a close — but not perfect — match between the DNA recovered at multiple crime scenes and a man being held in a California prison. Such a near-match strongly indicated that the person wanted by police was a close relative of the man in prison, and police soon focused on the man’s father, Lonnie Franklin. They put him under surveillance, obtained his discarded pizza and found that his DNA matched that recovered at a Grim Sleeper crime scene.

Click here for more stories on cases solved by Familial Searching.

Vanessa

Posted in Crime Scenes, DNA Project, Forensic Career, Latest News, Legislation, Links | 1 Comment »

The best Valentine’s Day Invite

Fri, Feb 18th, 2011

A strange topic you may think? Especially, if like me, you are not a fan of Valentine’s Day and all that it encompasses. However, having just landed in Cape Town from a trip to JHB last week, I received a call from General Phahlane, the Divisional Commissioner of the Forensic Lab, requesting that I please come and present at a Strategic Planning and Management Session in Mpumalanga on Monday, 14 Feb 2011. Now you can understand why it was the best Valentine’s Day invitation I have ever received!

Gen Phahlane & Col. Lindie Traut from the FSL with Willie Scholtz from the CJS

The purpose of the work session was to review the progress made with revamping the CJS and to plan the way forward with regard to the CJS within the FSL for the 2011/2012 fiscal Year. The work session formed part of the ongoing strategic planning processes currently underway in the Forensic Science Division, which is being spearheaded by its new head, Gen. Phahlane. My brief was to present to the Planning Team, The DNA Project’s overview of where we believe funds allocated to the FSL by the CJSR (Criminal Justice System Review – which you will recall was given R3bn over 3yrs) would be best spent in the forthcoming fiscal year, with a view to expanding the National DNA Database.  What a brief! The Planning Team consisted not only of the Divisional Head of the FSL, but the head of the FSL and the LCRC and all of its top management staff. It was an honour to be invited to be part of this Session and an opportunity finally to be able to present all of our hard work and research over the last few years to such a focused group of people. In addition, the new management team of the FSL are one of the most hard working and dynamic group of people I have come across and they view the work of The DNA Project as an integral part of the review process, as opposed to an opposition group with a hidden agenda. For the first time in many years, Carolyn (who accompanied me to the session) and I felt that the tides had changed insofar as the FSL recognising the critical role it plays in the resolution of crime in South Africa.

The hour long presentation I gave was received with enthusiasm and most importantly, support. In a nutshell, The DNA Project believe the 3 key areas which need to be addressed are (1) Legislation (2) Capacity and (3) Awareness. The below slide, which come out of my presentation, captures the “How” we believe this can be achieved in SA:

Re: Legislation – despite the PC dragging their heels and insisting on embarking upon their overseas trip, the FSL are two steps ahead and have already implemented extensive strategies to increase their capacity by commencing on the building of two more National Labs in KZN and the Eastern cape – by de-centralising the Pretroia Lab, it will mean that provincial cases do not clog up the Pretoria process lines and obviously will result in an increase in samples loaded. Hand in hand with this development, they believe fully in training and awareness at the crime scene. As such, we have their support in promoting the Forensic Hons degree they have helped us develop and they will be participating in lectures at the tertiary institutions offering this course. As the FSL capacity increases, they envisage employing at least another 750 analysts and as such, the more skilled analysts they can employ the better. These strategies will ensure that the FSL’s implementation plan which they will need to prepare for Parliament, will have substance and vision, two elements key to the successful execution of the DNA Bill, when passed.

But mot importantly, where The DNAP and the FSL can work together in the most critical way, is through awareness at the crime scene – I spoke of a chain being as strong as its weakest link – and this means that with all of the above strategies in place, all will fail if we cannot collect the DNA evidence left at the crime scene by the perpetrator/s. We only have one chance to do this, and this is where the public/private partnership comes into play. If we can continue to create DNA Awareness and the importance of crime scene preservation amongst the general public and sectors of the community such as within private security companies, paramedics, trauma centres, justice and schools, then they can implement training and awareness amongst Crime Scene Examiners and first responding police officers.

This leads me to my final point which is that the expansion of the National DNA Database in South Africa, and its use as a crime intelligence tool (i.e. investigations driven by DNA, rather than DNA being considered simply a piece of evidence) requires the interplay between Justice, SAPS and the FSL and….the public – which is us, The DNA Project and YOU!

All of the above points made sense to the Planning Team and even more encouraging is that they were excited about some of the ideas I presented. We left the following day with renewed hope and energy and trust in our hearts, that the new management team are going to get it right and not just right, but they are willing and able to take DNA and its potential as an evidentiary tool, to a new level in SA. The Planning Session continued over the next couple of days, and we look forward to hearing how the 2011/2012 fiscal year is going to unfold. I have no doubt that it will be a space worth watching out for….

It was indeed a “Happy Valentine’s Day” – let’s hope in this case, all our dreams come true!

Vanessa

Posted in Crime Scenes, DNA Project, Forensic Career, Latest News, Legislation, Newsletter, Press | 1 Comment »

Envisioning the future of DNA in SA – someone has to do it!

Thu, Jan 27th, 2011

We all know that DNA technologies have radically reshaped the role of forensics in police work throughout the world – well, that is everywhere perhaps but here in SA, where we unarguably need it the most. Even small amounts of blood, saliva, or other biological materials left at a crime scene can now lead to the identification or elimination of a suspect. Genetic evidence is being used both to convict perpetrators and to exonerate people who were wrongfully convicted on less reliable evidence, including scores of people on death row in the USA. We all know this. It is a fact. It is the future of successful police work, and that is why I am not ready nor willing to take off my gloves in our fight to make our Government recognise this all important fact.

Every now and again, I wake up and think – what is the point? All those nay-sayers who previously told me and still tell me – you will never get anywhere with our Government would love to prove me wrong and say, ‘I told you so’…  But the point is, this is inevitable – just as the cell phone has become an indispensable instrument in every SA’s life, so too will the power of DNA and its use in resolving crime, become an indispensable tool in SA’s fight against crime. So when I heard this week that the Portfolio Committee have yet again postponed their overseas tour of the UK and Canada to , and I quote, “our winter”, ie July 2011, my initial reaction was despondency – but then I realised that they are simply delaying the inevitable – whilst they manipulate dates to ensure that their overseas trip at least falls within the European and Canadian summer (a much more pleasant time to journey, you will agree), we need to ensure that all the groundwork must continue to ensure that once that legislation is in place, we are ready for it:

1. DNA AWARENESS – this is critical, because unless we are aware that DNA is all prevalent on a crime scene, that crucial evidence will be lost, and of no further use. This applies to every officer, (be it police or security guard) paramedic or member of the public and as such, we will continue to embark upon our National DNA Awareness Campaign which offers free workshops to all these sectors as well as schools, community centres and trauma centres. The more people who know about the power of DNA, how to preserve it and how it can be used to link serial offenders to their crimes and ultimately prosecute them, the better.

2. DNA CAPACITY – we need to support our Forensic Labs, as the new legislation, when passed, will require a large amount of samples to be processed if our DNA Database is to be used as an intelligent database. To this end, more Universities need to take up our offer of hosting a Forensic DNA course at their institution (we have developed a Forensic Hons course which we provide to Universities free of charge), so that we have more qualified Forensic Analysts entering the labs. We also need to support the idea of allowing private DNA labs to assist the state forensic labs, certainly in the beginning, to process more samples to enter onto the DNA Database. This is an accepted practice all over the world, and in a country which is plagued by backlogs, there is no reason not to implement this system in SA.

3. GENETIC JUSTICE & THE LAW! – without proper legislation in place, convicted offenders remain free to leave prison without having had their DNA profile entered onto the DNA Database; the current DNA Database remains unregulated due to inadequate and outdated legislation attempting to define this area of the law; serial rapists and murderers remain at large and undetected because our Database cannot be utilised as an intelligent Database without proper legislation allowing it to be used as such. We need to put pressure on the Portfolio Committee to get a move on and review the DNA Bill, because one more delay will render their stated intentions to pass the Bill untruthful, without substance and against the will of the SA people.

Our plan for 2011 therefore is to rigourously promote DNA Awareness in the first part of the year. To this end we have a media plan and funding to help us spread this crucial awareness (remember DNA CSI!?) on a national basis. When the PC return from their overseas trip, ready, we trust to finally concentrate on actually reviewing the legislation, we hope that there will be a groundswell of South African’s fully aware of why DNA and its use in Forensics needs to form part of this country’s crime fighting strategy.

Let us know if you want us to host a free DNA Awareness workshop or lecture at your organisation, school, community centre, trauma centre or security company – simply email Maya at maya@dnaproject.co.za or call (021) 418-0647.

with thanks

Vanessa

Posted in Crime Scenes, DNA Detective, DNA Project, Forensic Career, Latest News, Legislation, Newsletter | 1 Comment »

Meeting the new General of the FSL

Thu, Dec 2nd, 2010

I was in Johannesburg and Pretoria today where I met with two very interesting and influential people – one government, one private.

The first, General Phahlane, is the newly appointed head of the Forensic Science Lab [which, remember, consists of 6 different forensic divisions, only one of which is Biology (DNA)]. The General has taken over from the former Div. Commissioner, Piet du Toit and has a very different managerial style to his predecessor. For one, he promotes opens lines of communications, and whilst I sense that he is definitely not a man to be crossed, he encourages support and input so long as it is constructive. The General acknowledges that the current system is far from perfect, however, he is tackling the issues head on and apparently, transparently, and from all accounts runs a very tight ship too. His random appearance within the lab at any given time, certainly ensures that the people working there are on the ball at all times, and I believe this approach has enabled him to boast substantial inroads into the DNA backlog,  that is constantly being raised as an issue. The General believes that NGO’s have a critical role to play in making fundamental changes in SA – more importantly, he supports our objectives and has a particular interest in the DNA Awareness campaign we have embarked upon throughout South Africa as he too understands how vital a part the preservation of crime scene evidence plays. His passion to eradicate crime  in SA is palpable, and I truly look forward to watching the changes I believe he is going to make in developing a strategy to expand the DNA Database in SA. It is abundantly clear that he comprehends and embraces the significant role a criminal intelligence database plays in SA as opposed to simply a DNA Database, and that more profiles = a more powerful database for crime detection and resolution, but ultimately prevention.

Vanessa Lynch with General Phahlane and Colonel Shezi at the Pretoria FSL

Vanessa Lynch with General Phahlane and Colonel Shezi at the Pretoria FSL

I was also greatly relieved to hear that Colonel Shezi, who attended the meeting, will be accompanying the Portfolio Committee on their overseas study tour to the UK and Canada next year. The General confirmed that at least her trip had been approved, so I am assuming from that information, that the remainder of the Committee members must too have a final agenda. This reinforces the statement made by MP, Annelize van Wyk on SABC1 (“It’s your Right”) last week, that the tour has been scheduled for late January 2011 and that deliberations on the DNA Bill would commence in February on their return; and… that she anticipated that it would be finalised by mid 2011. We won’t of course be holding our breath that they will stick to those timelines, as reviewing legislation is not a cut and dry affair, BUT, at least it is finally being publicly spoken about and is now openly on the agenda.

The other person I met was the CEO of the Security Industry Alliance. The concept of introducing DNA Awareness Training as an industry standard amongst all private security personnel was discussed. In other words, we host “Train the Trainer” workshops so that all security companies are enabled to incorporate DNA Awareness Training as part of their standard crime scene management training. I am putting together a proposal this week which will formulate a plan to incorporate this type of awareness from the top down. This is very exciting, as it may well mean, that DNA Awareness becomes part and parcel of all first responding officers’ training — again, it underlies the objective we are very passionate about — and that is that you only have a limited opportunity to preserve crime scene evidence, without which all the laws in the land and fancy labs are rendered meaningless.

Let’s hope that our simple acronym DNA CSI becomes as well known in SA as Coca Cola!

Vanessa

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Links to News Articles published on the New Fingerprint/DNA Bill

Fri, Oct 1st, 2010
News articles:

Posted in DNA Project, Legislation | Comments Off on Links to News Articles published on the New Fingerprint/DNA Bill

Feedback from Interpol DNA User’s Conference

Wed, Sep 29th, 2010

This time last week I was sitting at the Interpol Headquarters in Lyon, France listening to the Chief of the USA FBI CODIS Unit talk about International DNA Exchange methods. This was only one of approximately 35 fascinating presentations delivered by representatives from over 50 countries. As you may well imagine, participating in a conference of this magnitude was extraordinary, and the value of being able to interact with the other representatives: priceless. A special mention of thanks needs to go to our generous sponsor, The Open Society Foundation for South Africa, which enabled us to attend this incredible conference.

Members of the Interpol DNA Monitoring Expert Group at the Conference

The keynote speaker was a highly respected Australian Forensic Scientist by the name of Dr Simon Walsh. Dr Walsh is the Co-ordinator of the Australian DNA Database who spoke about, amongst other topics, ‘New Technologies & Techniques in the 21st Century use of DNA‘. We heard about what he termed “the triumvirate of interests” which is the critical interplay between the police,  forensic scientists and the justice system. If you absent one of these 3 critical components when trying to implement a DNA Criminal Intelligence Database, the success of any DNA Database will fail to reach its expected outcome. This needs to be considered in great detail in a country such as South Africa where both our justice system and SAPS are fraught with problems. These challenges however are not unique to South Africa, and the way in which other countries have dealt with this, is by the implementation of a DNA Expansion Board or body of people, represented by the various departments as well as ethicists and parliamentarians and any other group relevant to that administration who collectively oversee the development of the DNA Database. I have spoken about this type of overseeing body on many occasions in the past and still believe that this approach would work well in South Africa, which in fact has the benefit of an already established DNA database as well as a functional forensic laboratory. Whether the Portfolio Committee reviewing our current legislation recognises this critical requirement however, is yet to be seen….

Carolyn and I arriving at Interpol Headquarters on the first day of the Conference

On a more complex level, and probably more relevant to countries such as the UK, Australia and the USA who have developed and utilised their DNA Databases successfully as criminal intelligence tools, Dr Walsh’s presentation went further to explore an inferential model for DNA database performance using data from major national DNA database programs. The parameters that optimise desirable database outputs (matches) were isolated and discussed, as was his approach for maximizing financial efficiency and minimizing ethical impact brought about by the successful implementation of DNA databases. Dr Walsh’s research takes important steps toward identifying measures of performance for forensic DNA database operations and should you wish to know more about his formulas he has developed to measure DNA Database outcomes, feel free to email me at info@dnaproject.co.za and I will send you the paper he has recently written on this subject.

What struck me most at the conference was the extent to which the majority of the countries government’s represented at the conference, were willing to put in whatever resources were required to establish and maximise the effectiveness of their respective DNA databases. It was also sobering to see how seriously they took crime and in some countries a stolen car was considered to be headline news and worthy of 24/7 resources to catch the perpetrator. You can just imagine the reaction that followed my presentation where I described the current situation in South Africa, spoke about my experience when my father was murdered and ended off the presentation with the VUKA ad which highlights the severity of crime in our country. To say that the audience was left in stunned silence at the end of my presentation, is perhaps an

Vanessa Lynch presenting at the Interpol DNA Conference

understatement. I think we all know how de-sensitized we are to crime in South Africa, but when people came up to me afterwards and told me they had literally choked-up during my presentation, I realised how far removed we really are and how dangerous this can be as it moves us into a place of acceptance of an absolutely, unequivocally unacceptable situation. And people kept asking me – but WHY doesn’t your government do something about this and WHY is it taking so long to pass this legislation which will convert all those unprocessed rape kits I had shown them, into a DNA profile which may lead the CSI’s to the perpetrator to STOP them from re-offending. And the best question: but WHY doesn’t your government or your parliamentarians RESPECT these victims and future victims of crime enough in your country to do something about this? Yes, WHY indeed?

Carolyn and Vanessa in the Interpol Headquarter's Garden

On the other end of the scale we heard from the United Arab Emirates (UAE) how they  have been given 1 BILLION US$ to implement a population database in their region – their crime rate, I recall, is something in the region of 950 reported crimes over 10 years?! The reason – to prevent future crime from occurring! Whilst this is not a realistic option in most parts of the world, it sparked serious debate amongst the audience in respect of the value and ethical considerations a population database would bring about. For those not familiar with the term ‘population database’, it simply means that instead of focusing on putting the criminal population on the DNA database, it puts the entire country’s DNA profiles on the database which creates a larger reference pool for matching purposes when a crime occurs and a DNA profile is uplifted from a crime scene. Theirs is going to be the first population database in the world, and what I found most significant was that legislation was not listed as a ‘requirement’ for its implementation! This is because, and I quote, “Legislation will be taken care of by the Minister of Interior”! No questions asked.

We thoroughly enjoyed listening to some fascinating case studies presented by different countries over the course of the 3 days, all of which obviously showed how DNA was used to track the perpetrator of the crime, and in some cases, from as far back as the early 1970’s and throughout the world using Interpol’s International DNA Database.

We were also shown a very exciting new website called the  “Forensic DNA World Map Project “. The World Map Project provides forensic scientists, criminal justice professionals and lawmakers with access to the policy, legislative, legal and technical knowledge-base of the countries throughout the world that have operational DNA database programs.  It is a free service but is limited to those individuals pursuing the information for the purpose of developing and refining forensic DNA policy.  One can apply for a password and if given, those Users may request additional country-specific information, such as enabling legislation, DNA database reports, presentations, statistical data, technical standards and media.  The WMP can also connect users with forensic DNA databasing leaders throughout the world.  I am going to suggest to our Parliamentary Researcher that she apply for a password to access this database and that she disseminate same to members of our Portfolio Committee – this is probably what they really need to look at to inform themselves of  International Best Practice (IBP) – in other words, an armchair tour of the World’s DNA Policies may be all they need to learn the most about how this technology is being implemented internationally and the issues and challenges each of those countries has had to deal with!! I have looked at the site and it is arguably one of the most informative portals when it comes to looking at IBP in this arena.

There was also a lot of discussion around familial searching, which is used mostly for DVI (Disaster Victim Identification) but in a more regulated way, to establish a link to the perpetrator when they pick up a familial link on the DNA database between a crime stain and a profile which already exists on the database. Judge Arthur Tompkins presented some very sound and objective arguments on both the legal and ethical issues surrounding the use of familial searching. Having listened to these discussions I think it would be prudent for South Africa to consider inserting a provision in our new DNA legislation to regulate this area of the database.

Judge Tompkins also provided us with very valuable insight into the lessons learned from the outcome of the contentious S & Marper cases which reached the European Human Rights Courts. I so wished even ONE member of our Portfolio Committee could have been there to participate in these discussions, as they have stated on more than one occasion that they are considering the outcome of this case in the review of our legislation.  This case you may recall, centres around the retention of ‘innocent’ profiles on the database where the person is subsequently acquitted or the case is dropped. What you may find interesting, is that “S” is a person named Smith who was a minor at the time of his DNA profile being loaded onto the database. Smith was not subsequently convicted. But how ironic is this: Smith was recently linked to a crime he was found guilty of committing – how? Because his DNA profile found on the crime scene matched his ‘innocent’ profile on the database….

Carolyn and I left the Interpol Headquarters last Friday with our heads full of new information and new ideas; new friends and allies and more importantly renewed motivation. We received such wonderful support for the work we are doing in South Africa – everyone found it completely unique (and not surprisingly, somewhat strange!) that a non-government organisation was necessary in a country like South Africa where we provide DNA awareness, grass roots training, skills development and most importantly a public voice to try and convince the relevant governmental powers of the value of a criminal intelligence DNA database. Be that as it may, we will continue with our mission to ‘fight crime with science’, and whilst we are not advocating that this is the ‘silver bullet’ to resolve crime, it certainly remains a mystery as to why South Africa has not leapt at the opportunity to more fully use this phenomenal technology where accountability for crime has not yet been achieved.

Should you wish to know anything further about the conference, feel free to email me on info@dnaproject.co.za

Vanessa

Posted in Crime Scenes, DNA Project, Forensic Career, Legislation, Links, Newsletter | 1 Comment »

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