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When silence is met with skepticism

Published October 30, 2005

A Fifth Amendment Communist was condemned by his silence. When a witness refused to deny being a Communist before the House Un-American Activities Committee, everyone presumed he must be one. His refusal to cooperate was as damning as a spill-your-guts confession. Privacy is just so suspicious.

But then there are people like Shannon Kohler, who remind us of why the founders took pains to give us all a zone of privacy that can't be breached by government without good cause.

Kohler is described by his attorney as "as close as I've seen to a true libertarian." When hysteria over a serial rapist and killer in Baton Rouge, La., was reaching its apex in 2002, Kohler refused to participate in the DNA dragnet that followed. More than 1,000 white males were asked to "volunteer" to prove their innocence by providing a buccal swab for DNA testing; 15 or so refused. Kohler, a middle-aged welder, was one of them.

Kohler claims that detectives from a task force of state and local law enforcement told him that if he refused, they would get a court order to force him to give up his DNA and his name might be revealed as a result. Kohler stuck to his guns, and the police made good on their threat.

They got a court order based on the flimsiest of evidence, and Kohler's name was broadcast worldwide as a suspect in the killings. Dennis Whalen, Kohler's attorney, says after the publicity, Kohler "was turned down on a bunch of employment." Kohler's lawsuit for rights violations is now in a federal appeals court.

But Kohler was innocent, as were the other men who refused, as were the 1,000 white men who gave up their genetic blueprint. The DNA found at the crime scenes ended up matching Derrick Todd Lee, an African-American.

In the past 10 years, DNA sweeps have become increasingly popular as a law enforcement tool of convenience. According to a 2004 study done by Sam Walker, a professor of criminal justice at the University of Nebraska at Omaha, they are remarkably inefficient uses of police resources. But they make good headlines and create the illusion that the police are actively investigating a particularly heinous crime.

Of the 18 cases Walker studied, only one resulted in identifying the criminal suspect. That case involved the sexual assault of a nursing home resident in Massachusetts. The police tested men who worked there and had access to the victim. It was a small and exacting sample, a procedure far different from how DNA dragnets usually operate.

Typically, sweeps involve populations of hundreds, chosen based on general characteristics such as sex, race and approximate age. In such cases, police have come up empty with no viable suspect, but they leave behind magnified racial and ethnic resentment and people who feel they were intimidated into cooperating.

I can see why DNA is such a compelling tool. It is a forensic home run, almost like having a Polaroid of the guy in the act. Law enforcement must dream of the day when everyone's DNA is collected in a database and solving crime is merely a matter of matching up double helixes from the world's population.

But I dread that day. Remember that scene in the movie Gattaca? Ethan Hawke's character fastidiously vacuums his computer keyboard to make sure every errant skin cell is sucked off so he couldn't be identified.

We are inching closer to that dystopia. To my mind, convicted felons and certain categories of misdemeanants are the only ones who have forfeited their privacy rights and should expect to have their DNA stored in government databases. But a misguided amendment has been attached to the Senate reauthorization of the Violence Against Women Act that would allow DNA collected from arrestees - people presumed innocent - to be uploaded into the national DNA database. When the government can justify storing the DNA of people who get arrested, just in case it might come in handy later on, it's not a big jump to the rest of us.

In a number of the DNA sweep cases, the men who cooperated and proved themselves innocent ended up having to sue the law enforcement agency to expunge their DNA fingerprints from the database. This resistance from policing agencies shows just how desirous they are to expand their collection of genetic imprints.

DNA sweeps turn the presumption of innocence on its head, making entire populations feel like suspects who either have to give up a highly revealing bit of themselves or be marked as having something to hide. Leave me alone - the very impulse the Constitution protects - is not an option. Just ask Shannon Kohler.

[Last modified October 29, 2005, 02:30:05]

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