Minnesota felons' DNA samples slip through the cracks

When prosecutors learned that Minnesota authorities weren't always getting DNA from convicted felons, Ramsey County Attorney John Choi asked the chief of his criminal division, Richard Dusterhoft, to double-check their files.

At first skeptical, Dusterhoft grew alarmed when he discovered that dozens of felons were slipping through the cracks each year, despite a state law that requires samples from them.

"Eighty-five in 2010, that was a big surprise to me, that it was as many as it was," he said.

Whether those felons are in prison, freed or on probation, it's proven a daunting challenge to track down 61 of them, so far, to get the samples they should have given in 2010 -- plus more felons who should have given samples in earlier years, too. With DNA an increasingly important tool for solving crimes, criminal justice officials are calling for more vigilant collection efforts.

"This potentially could solve past crimes and could lead to solving future crimes," said Choi. "That's one reason why we've spent a lot of energy and focus on this -- because we can see the value to the public's safety."

Exhaustive search

Choi decided to have Dusterhoft check the state Bureau of Criminal Apprehension (BCA) Convicted Offender Database after hearing Hennepin County's senior prosecutor, Steve Redding, sound the alarm at a Minnesota county attorneys' meeting in September 2011.

It's not only a statewide problem, but one that must be addressed across the nation, said Redding, a national expert in prosecutions of "cold-hit" cases. That's where DNA from crime scenes is compared to databases to identify unknown suspects, sometimes many years later.

DNA is changing the way police and courts work, with more "hits" as databases grow and with DNA analysis used in investigations of more kinds of crimes, such as burglaries, rather than just murders and rapes, Redding said. Prosecutions are more certain and sentences often longer thanks to DNA evidence, he said.

He pointed to the case of Alfred L. Moen, a repeat drunken driver who in 2009 was sentenced to 25 years for the 1989 murder of Brenda Pikala in Minneapolis. In another DNA case, in July a Hennepin County jury convicted a man of raping a 12-year-old in 1995.

In Ramsey County, Dusterhoft and a law clerk have spent hundreds of hours during the last 15 months checking the BCA database against court records to verify that all felons gave DNA samples in recent years.

In 2010, DNA was missing from 85 felons out of 1,639 ordered to give samples. Of those 85, 61 have recently submitted to DNA testing. Of the remaining 24, some felons are on warrant, some out of state, or are unavailable for other reasons.

At sentencings, felons are ordered to give DNA. Judges check a box saying where the cheek swab should be collected: the county workhouse or Law Enforcement Center, public health department, probation office or prison.

But in 2010, Dusterhoft said, there were 22 cases in which a judge didn't know where the defendant was going to be, so he or she didn't check any box.

"It turned out that in 22 of the cases, if a box wasn't checked, then everybody just figured somebody else was going to do it and it just didn't get done," he said.

Some felons were taken into custody by U.S. immigration officials before DNA samples were taken. Others were released without being on probation or absconded from probation. Sometimes, a misstep came in court or behind bars.

"Sometimes they get to the BCA, and there's no DNA on the sample," Dusterhoft said. "There's no way to communicate that back and say, 'Hey, you need to send these guys back,' unless you do like I did and go through every one of these."

"Enforcement of the order is really what we have to look for right now," she said.

John Menke, assistant director for Ramsey County Corrections, said probation officers are working hard to get samples, despite the challenges.

"People don't always go where DNA can be collected in Minnesota," he said. "Sometimes other states or federal officials have detainers on them and they go to those places. Sometimes the sample's collected but it's not in good enough shape when it hits the BCA to get into the system."

Crucial evidence

Pointing to a stack of files on his desk, Dusterhoft said tracking down felons for their DNA is challenging: "Some have been deported, some are homeless, some have left the state, some are in federal prison or another state's prison for new offenses. Some died."

"There needs to be some sort of system," he said, "where somebody in the state, who has better access than us to both of these databases, is looking at this, and saying, 'OK, in 2010, we had say, 15,000 felony convictions, and here are their names. Are all of them in the DNA database?'"

Meanwhile, Ramsey County prosecutors and deputy sheriffs are working together so DNA is collected from illegal immigrants before they're released to federal custody. And Choi said prosecutors are now filing "futuristic warrants" that use DNA, such as from blood left at a burglary, to charge unnamed suspects.

The warrants charge a "John Doe" by using his DNA profile as an identifier until a name is known. That stops the clock on the statute of limitations.

In one such warrant filed Nov. 16, authorities linked two cases through DNA. Some came from items, including a toothbrush, left by a burglar at a garage burglary in White Bear Township last April. More DNA came from cigarette butts found in a car stolen in Little Canada last January.

"Doing all this is so important because it allows us to maximize the use of the technology that we have," Choi said. "And we can't use it properly if we have people falling through the cracks."