Thursday, 4:30 PM
Another DNA snafu may derail sex cases
By John R. Ellement, Globe Staff
State officials said Tuesday they have discovered a new problem in the State Police crime lab that could jeopardize 12 sex crime investigations: the DNA profiles of the suspects should never have been in the lab’s database of convicted felons.
Public Safety Secretary Kevin M. Burke said the 12 suspects -- whose profiles matched DNA evidence collected from crime scenes -- were convicted of misdemeanors. State law, however, limits the database to only those convicted of felonies.
Burke, a former Essex County prosecutor, said he believes police and prosecutors can still seek criminal charges using the DNA information. "As far as I can see, it is admissible," he said in a telephone interview. "This error wasn’t an intentional error. The errors in these 12 cases was the result of misreading the original criminal record."
But defense attorneys said since the state had no right to the information, prosecutors should not now be allowed to use the DNA matches in trials.
"Why are the samples being taken illegally? That sounds like 12 violations of the law," said William J. Leahy, chief counsel for the state’s public defender agency, who said he wants more information from Burke. "There may be more violations. The 12 could just be the tip of the iceberg."
The 12 cases are in addition to 23 sexual assault cases in which Robert E. Pino, the civilian administrator of the Combined DNA Index System failed to notify police of DNA matches in time, making it impossible for law enforcement to prosecute offenders. Pino also violated department rules in four cases by treating "familial matches" of relatives as links to convicted felons, officials say.
Pino has been suspended with pay and his union has said the problems were the result of an overworked lab staff.
The FBI is auditing the DNA database, and Burke plans to spend up to $300,000 to hire an outside consultant to perform a complete management review of the lab. Tuesday, he also said he has ordered a top deputy, LaDonna Hatton, to personally supervise the lab by working out of the main lab in Sudbury.
Burke said it was not clear if the 12 new problem cases should be blamed on Pino. He said the DNA profiles were collected at jails, prisons, and probation offices and shipped to the lab based on the belief that the offenders were convicted of felonies. He said it was State Police lab workers who discovered the mistakes.
State Police were forced to disclose the new cases in an affidavit filed in a Norfolk Superior Court case in which a Boston man faces nine counts of aggravated rape stemming from a 2001 house break-in.
Sosa is also being prosecuted in Suffolk County for a 1995 break-in and rape and in Middlesex County for a break-in and attempted rape, according to court records and his defense attorney, John J. Courtney.
Courtney said Pino testified before the Norfolk County grand jury that indicted Sosa and Courtney has asked a Superior Court judge to dismiss the charges -- or to delay the trial until the inquiries of the lab are completed.
"We won’t know until the audit comes through whether or not any of this information is false," Courtney said of Pino’s grand jury testimony. "It’s reasonable to at least be suspicious about the reliability of his testimony."
Through a spokesman, Norfolk District Attorney William R. Keating’s office said its does not believe the lab’s issues have any bearing on the evidence against Sosa. Burke has insisted that the science of DNA matches is valid and the problems are only administrative.
Superior Court Judge Charles Grabau has taken Courtney’s motions under advisement.
Ellement can be reached at ellement@globe.com
