Court says state can’t hold DNA

By John R. Ellement, Globe Staff

The state Appeals Court said yesterday that the government cannot unilaterally decide to keep DNA profiles of civilians who willingly provide genetic information to law enforcement as police try to solve crimes.

In a unanimous ruling, the court revived a lawsuit filed by Keith Amato against Cape and Islands District Attorney Michael O’Keefe and the State Police for keeping his DNA profile, which was collected to help authorities solve the slaying of Truro fashion writer Christa Worthington, an Amato acquaintance.

“DNA information is highly sensitive,’’ Judge David A. Mills wrote for the court. “Citizens have a reasonable expectation of privacy in such information. . . . We are not convinced [O’Keefe and State Police] have acted reasonably as a matter of law.’’

Amato voluntarily gave a biological sample in 2002, and has fought for years for the removal of his genetic profile from State Police files, particularly since Christopher McCowen was convicted of murdering Worthington and his conviction was upheld.

Amato has since recovered the biological sample. But his genetic profile, which is developed by processing the sample, is still in government hands, though he has not been convicted of a crime.

McCowen was linked to the killing based on his DNA profile. Like Amato, McCowen voluntarily provided a sample.

A Barnstable Superior Court judge rejected Amato’s lawsuit.

Yesterday’s ruling reinstates it while spelling out the new principle that an individual’s right to privacy can trump state rules on preservation of evidence in murder cases, Amato’s lawyer said.

“It’s a procedural victory for us [and] a ground-breaking opinion,’’ said Mark W. Batten, a Boston lawyer who represented Amato on behalf of the American Civil Liberties Union of Massachusetts.

“The court has said clearly for the first time that state government may not maintain information through some unilateral determination,’’ he added.

In a phone interview, O’Keefe emphasized that Amato was in a group of people who provided biological information during the early stages of the complex, high-profile investigation into Worthington’s murder.

O’Keefe said genetic profiles were never made for about 100 men, chosen at random in Cape communities, who volunteered to provide samples in 2005.

He said that under state rules, law enforcement must hold onto evidence in homicide cases for 50 years. Amato’s genetic profile, he said, falls into that category because he had some connection to Worthington before her death, in contrast to those who were randomly asked for samples.

He said civilian witnesses should back the idea of keeping information in homicide cases for decades.

“I would think they would want a record of the fact that they were excluded, so that no one could, in some subsequent [proceeding] point the finger at them,’’ O’Keefe said.