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                    Copyright 2002 Capital City Press
                     Sunday Advocate (Baton Rouge, LA.)

                  November 24, 2002, Sunday METRO EDITION

SECTION: News; Pg. 1-A Keywords Murder Filename dnaissues.grc Story Lead Use
of DNA tests in killings raises rights questions By MELISSA MOORE Advocate
staff writer The reve Editor pgg Art Photo

LENGTH: 1575 words

HEADLINE: Use of DNA tests in killings raises rights questions

BYLINE: MELISSA MOORE, Murder

DATELINE: dnaissues.grc

BODY:
The revelation that police have DNA-tested more than 600 men in their search
for the Baton Rouge serial killer - along with their methods for getting
those tests and uncertainty about what might happen to the results - raises
questions about how protecting innocent people's civil rights compares to
stopping the killer before he strikes again.

Early in the investigation into the DNA-linked slayings of Gina Wilson
Green, Charlotte Murray Pace and Pam Kinamore, detectives filed several
documents related to the investigation under seal in the Clerk of Court's
Office, an unusual step in a local murder investigation.

Officials said the sealing was necessary to avoid tipping off the killer to
their activities and to make sure innocent people didn't get publicly
smeared just because they fell under suspicion. But last week the warrant
used to force 44-year-old welder Shannon F. Kohler to provide a DNA sample
was filed in the clerk's office and not placed under seal.

The affidavit, or the part of the warrant in which investigators explain to
the judge why they think they should be allowed to get the DNA sample,
revealed the huge number of DNA tests that have been conducted during the
investigation. So far, none of them have turned out to be the DNA of the
killer.

The tests have created a pile DNA profiles of innocent men and a number of
unanswered questions about what might happen to those test results.

Capt. Brian Wynne, who runs the State Police Crime Lab, said the lab will
eventually give back to the Baton Rouge Police Department the swabs used to
sweep saliva and cells from the men's mouths.

The lab also will give the Police Department the paper records, or DNA
profiles, showing the results, Wynne said.

The DNA of innocent people cannot go into either state-level or
national-level DNA databases, which are restricted, depending on the
database, to either arrestees or people convicted of certain crimes, he
said.

Wynne said the crime lab will keep the DNA profiles in files that could be
hand-searched to locate the DNA profile of a particular person who had given
a voluntary test during the serial killer investigation.

The question is what use of the DNA profile would be permissible.

Wynne said he could find nothing in the law that limits what the crime lab
could do with the DNA test results, except that they can only be used for
law-enforcement purposes.

And a policy has not been developed yet to govern whether those DNA test
results could be used for comparison to samples obtained in future crimes,
or in other crimes currently under investigation, he said.

The State Police Crime Lab has been running DNA tests for less than two
years and is still working out policies as new issues arise, he said.

The serial killer investigation, with hundreds of samples collected from
innocent people who gave their DNA voluntarily, has raised several new
issues.

"I'm sure it is something we will have to address," Wynne said.

So far, much of the focus of the lab's policy work has been in issues
related to the lab's participation in the federal database of DNA samples
taken from people convicted of certain crimes. That process is ongoing, he
said.

Defense attorney Jim Boren said law enforcement should have considered the
long-term impact of these DNA tests before they began.

"I believe police should not operate under the 'ready, shoot, aim' theory,"
he said.

But he said people who have given voluntary samples may have little recourse
at this point.

"I think there's a very good argument that that evidence can be used for any
purpose," he said.

Defense attorney Mike Walsh said seven of his clients have been approached
for DNA tests. Four of them were clients with matters before the Family
Court.

Walsh said he wouldn't be surprised if someone eventually tried to make use
of those DNA test results to answer questions of paternity.

Police Chief Pat Englade said his office has not made a final decision about
what to do with the samples and records that will eventually be given to the
department.

He said he expects the department will destroy them, and may have to seek a
court order to do so.

'I don't know that I have a right to keep it,' he said.

Besides, the department has no interest in keeping the voluntary DNA tests
of innocent people who have been cleared in the serial-killer investigation.

Englade also said he will protect the identities of those tested.

"Our objective right now is to catch this serial killer," Englade said.

Police spokeswoman Cpl. Mary Ann Godawa left little doubt about the value of
DNA testing to the investigation when she was asked Thursday if detectives
could say they are any closer to catching the killer now than they were in
August when the task force began.

Godawa said they had DNA-tested more than 600 people.

"We feel that makes us a little bit closer," she said.

But the affidavit filed in court for Kohler's DNA-test warrant raises
concerns, at least among some attorneys, about whether the DNA elimination
method of finding the killer is the most effective way to close the case,
particularly given the text of the warrant.

Boren said the affidavit police wrote to persuade a judge that he should
order Kohler to provide a DNA sample does not meet the proper standard of
probable cause required in such cases.

Such an affidavit should demonstrate that a crime has been committed and
that detectives have sufficient facts "to believe there is evidence of the
crime in that location," he said. In this case, the location is Kohler's
body.

To that end, detectives cited a two-decade-old burglary conviction, two tips
from unnamed people saying Kohler needed to be checked out and that Kohler
had once worked at a business that had a shop on Choctaw Drive.

Green's cell phone was found behind a Choctaw Drive business several days
after she was killed. The affidavit does not say where Kohler worked or how
close it is to where Green's phone was found.

Boren said he's reviewed the affidavit and shown it to others, including
prosecutors in other jurisdictions.

"They all say they don't believe that warrant is a valid warrant," he said.

The affidavit also says that of the more than 600 people DNA-tested so far,
fewer than 15 have refused to take the test voluntarily.

Boren said this is not relevant to whether there is enough evidence for a
judge to force Kohler to take the test. Exercising one's rights cannot cast
suspicion on them.

"Otherwise, it's not a right," he said.

Walsh said he, too, is not impressed with the facts cited in the Kohler
affidavit as being evidence enough for the warrant.

"In my opinion, the probable cause is not sufficient and it's not a good
application for a warrant to get the DNA," he said.

However, he said, the public seems to associate refusal to take the test
with likely guilt.

"I believe the courts are under a lot of pressure to sign the warrants," he
said.

That could prove troublesome later.

Prosecutor Prem Burns said the danger is that if investigators obtain a DNA
sample through an invalid warrant, they may find the killer, but a judge
might throw out the test and not allow it to be used against him in court.

Boren said there also is the more amorphous, but just as important, erosion
of the right of Baton Rougeans to exercise their constitutional protections,
he said.

Even in cases where the public is so frightened that they would gladly bend
the rules in favor of police, it's critical to make sure police follow the
rules that exist, he said.

"You have to ask people to take a deep breath and remember why we have these
rules in the first place," he said. "The rules are there because we value
our privacy."Anyone who can't see why an innocent person wouldn't
voluntarily give a sample for DNA testing must also willing to let police
come into their home and root around in their bedroom drawers just in case
there's evidence of a crime in there, Boren said. It's essentially the same
thing.

Kohler has said that he felt threatened by police with public disclosure of
his test if they were forced to seek the warrant.

Walsh said similar suggestions have been made to some of his clients.

He did have two clients who managed to avoid taking the tests. One was in a
half-body cast at the time of one of the murders. The other was verifiably
out of town when one of the crimes was committed, he said. But police did
ask both of them for samples.

In some cases, Walsh said he believes police have told people they can get
the DNA results "expunged."This is similar to the logic police cited for
filing Kohler's warrant in the clerk's office.

Police officials said investigators believed they could not give Kohler a
copy of the affidavit unless they filed it in court and made it a public
record.

Englade said detectives also believed filing it would help Kohler get it
expunged.

Burns agreed with police on the issue of showing Kohler the affidavit.

That affidavit gets filed and becomes available to a defendant during the
court process, she said.

However, she said she knows of no mechanism in the law that allows for
search warrants to be expunged.

"I've never heard of it being done," she said.

Pam Laborde of the state Attorney General's Office said there appears to be
no such thing as expungement of a search warrant.

"I can't find any reference to it," she said.

GRAPHIC: B.W. photos of: Prem Burns; Pat Englade; Mike Walsh

LOAD-DATE: November 26, 2002