DNA for the taking

Richard Frank had never watched the television drama ''CSI," where perps and cons and innocents all accept DNA swabs of the mouth as if they're receiving puffs of cotton candy.

Even so, he found the true-life episode that went down inside his cell, No. 8, during a 30-day contempt of court stay at the Suffolk County House of Correction, to be surreal.

Authorities say Frank wouldn't provide a DNA sample that day in March. So, as allowed by state law, they sent in a team to take it by force -- setting his otherwise small case on a high-stakes track.

With a video recorder aimed at him, Frank was handcuffed, ordered to lie face-down on his bunk, and leg-ironed. Four correction officers in visored-helmets and padded body gear hovered around to make sure he didn't thrash about. When Frank wouldn't unlock a fist they say was clenched, one of the officers put a knee on Frank's back to pressure it open.

''I felt raped," Frank would say later of the encounter, which reached its denouement when a prison official approached Frank while he was shackled and pricked his pinkie, drawing out at least eight droplets of blood.

Correction officials say the procedure was perfectly proper, and that Frank could have easily avoided the confrontation by merely submitting to the blood sampling. If he had just gone along with it, his genetic fingerprint would have been sent squiggling without incident into the catacombs of science and added to the 43,500 samples already in the state's burgeoning, crimefighting DNA database.

But Frank didn't submit willingly, and as a result, there's one unique feature that won't show up in his deoxyribonucleic acid profile: the state says it believes the 33-year-old Dorchester truck driver has become the first person in Massachusetts to go to trial for refusing to willingly give up his DNA.

Sharing space on the Boston Municipal Court docket with the likes of a suspected shoplifter and an alleged uninsured driver, Commonwealth v. Richard Frank hardly seems to pack potential as a legal benchmark.

Yet even as a judge dismissed the case last month on a technicality, the district attorney's office vowed to refile the charges. And the state official who oversees the DNA database views a Frank conviction as crucial to his continued collection of DNA samples from prisoners, parolees, and probationers, a pin-prick procession now enrolling more than 300 a week.

''Why would you give [voluntarily]? The law would have no teeth," says state Combined DNA Index System administrator Robert Pino about the statute that subjects alleged genetic-material outlaws like Frank to penalties of not more than six months in jail, up to a $1,000 fine, or both. ''It throws it into turmoil."

Like a spritz of Luminol, the chemical that crime-scene investigators use to highlight hidden blood spatters, the Frank case also is raising to the surface longstanding constitutional concerns about the DNA database that, critics say, have been been buried by the state's zeal to untangle cases by stressing science over shoe leather.

''What's driving this is, 'We think DNA is cool and will solve crimes,' " says Benjamin Keehn, an appellate lawyer for the Committee for Public Counsel Services, the state's public defender agency. ''The question is, 'At what cost for individual privacy rights?' "

As it stands now, this is how Massachusetts enforces the law: Anyone convicted of a felony -- from sexual assault to shellfishing in a contaminated area at night -- is required to give a DNA blood sample to the state. Anyone convicted of a felony at any time -- even decades ago -- who is later reincarcerated for any crime, also must willingly give a DNA sample or have it taken by ''reasonable" force plus face a penalty of up to six months in jail, a fine of not more than $1,000, or both.

The regs, critics say, make the process sound so sterile: ''The tip of the offender's finger shall be wiped with an absorbent alcohol pad . . . "

But, Frank says, ''I was feeling violated, totally," about the state seizing his DNA while he was sprawled out in restraints.

Frank had done his time in Massachusetts in the '90s for a drug offense and a malicious-destruction-of-property conviction. But since he first heard about the DNA law while in the joint back then, state legislators and judges have responded to legal challenges to the DNA database not by scrapping the statute, but by declaring it constitutional and expanding on it.

''The long arm of the law just got a little longer," Governor Mitt Romney was quoted as saying in 2003, when the Legislature increased the list of DNA targets from those who had committed any of 33 serious offenses to those convicted of any of the more than 600 felonies under Massachusetts General Law. Already, the courts had allowed the state to revisist a convict's troubled past if he reoffends, and plop him in the DNA blood line because of it.

''The larger the database, the wider your net is to get these unsolved crimes," says Pino, who pegs the number of crimes unlocked due to the database at more than 500 since it started in 1997.

But, critics say, felons such as those stealing library materials over $250 are not likely to be involved in crimes where they leave blood or semen at the scene that could be matched to theirs, further clogging a crime lab the state acknowledges is underfunded and short-staffed.

''The expansion of the database is just piling more hay into the stack," says Ann Lambert, a lawyer with the American Civil Liberties Union of Massachusetts. ''When you're looking for the needle, it just makes it more difficult to locate it."

What also may be lost by allowing the state to snare DNA from such a deep pool of candidates not suspected of any current crime, but, perhaps, of future ones, critics say, are civil liberties such as the right to be free from unreasonable searches without probable cause.

''If a person has no expectation of privacy at all, he becomes a piece of cellular matter that has no rights at all," says Keehn. ''He's no different than a piece of furniture."

What's next, Keehn and others fear, is a knock on all our doors by the state's crimefighters -- demanding a sample, and cuffing us and grabbing our bloodlets if we refuse.

''That's the hallmark of a totalitarian society," he says, ''where the individuals' rights are completely subservient to rights the state deems to be of paramount interest."

When Frank got nailed by the DNA dragnet in March, he says, he was confused. After all, the guys he knew in the can who had to spill their DNA were in for major crimes like gun offenses. What put his finger in the line of a lancet, he later learned, was a 30-day stint in the House of Correction for failing to show the court that he was looking for a job to pay child support for his daughter. Not a big enough deal to call in the DNA squad, it seemed to Frank -- though authorities say the slip-up allowed them to take his blood because of his previous, more serious convictions.

''I still don't know why I have to submit a DNA," he says, a refrain heard from other cons who've told their lawyers they feel they're being repunished, through an involuntary flow of fluids, even after they've served their time. ''It was an invasion of my privacy. Period."

Frank says he doesn't trust the state not to frame him with his own sample. ''They can say, 'We found this here, we found this there,' " he says. ''They can do anything with your DNA."

Such as swapping DNA profiles as if they were genetic trading cards, critics say.

''The exploitation of genetic information collected by the state under the Act will open the door to widespread experimentation which uses prisoners, probationers, and parolees as its guinea pigs," Keehn and a lawyer from the American Civil Liberties Union of Massachusetts wrote in a failed court challenge to the DNA databank.

Pino says the notion of door-to-door DNA snatchers and genetic data hawkers also falls flat and is unwarranted fear-mongering.

''That's more of a '1984, we're going to know everything about you' . . . science-fiction theme they're trying to push out," he says. ''I can't see that coming in the US."

Richard Frank figures that if they can prosecute him for refusing to give a DNA sample -- even after they've taken his blood -- then they can do anything.

''Why am I going back and forth to court . . . when they got it?" he asks.

Because while Frank's case may become a test of legal arguments, for now it's a test of wills.

Suffolk County House of Correction Superintendent Gerard Horgan says his facility has taken DNA samples from over 1,000 inmates in the past year, and Frank is the only one who had to have his removed by force.

Horgan says Frank had already refused more than three requests to submit a sample, and had been duly warned that he could face charges for doing so; had flushed his toilet to drown out the words of a correction officer seeking his DNA; had tightened his fist so a needle couldn't draw blood from his finger; and can be heard on the videotape saying, ''This is against my will. . . .This is against my will. . . . I refused the test. Make sure that's documented."

To leave such defiance at that, without presssing charges, Horgan says, could embolden other inmates.

''I want this to be the rare exception, not the norm," Horgan says of the incident, which he allowed City Weekly to view on videotape. ''An officer can get hurt. An inmate can get hurt."

And the DNA database could be imperiled, authorities say.

''I can't let anyone thumb their nose at the law. It's an important law," says Suffolk District Attorney Daniel Conley. ''It has helped us solve unsolved cases. We give victims some measure of justice. And we're able to take some very dangerous people off the street."

Just this month, a Boston man, Larry Taylor, was in Suffolk Superior Court being sentenced to prison for a series of 1989 rapes after DNA evidence had both fingered him and freed a man, Neil Miller, who had been falsely convicted of one. Authorities had taken Taylor's DNA before he finished a sentence for breaking-and-entering.

Acknowledging that the DNA database law is filled with footnotes, Richard Frank's lawyer, Mark Perkins, says he, too will use the fine print to his advantage in defending his client.

Even if Frank declined to have his blood drawn in March -- a point he doesn't concede -- Perkins says correction officers came for him several days before his release date, meaning there was still time to try again before he was eventually set free.

''How hard is it to say the next day, 'Are you ready to give a blood sample?' " Perkins asks.

Perkins says that his client has been unfairly caught in a tangled DNA web, snagged by a minor legal matter while more heinous felons -- who may still be committing serious crimes -- avoid the database because they haven't been reincarcerated.

''It seems . . . arbitrarily enforced," Perkins says.

Meanwhile, Perkins believes it is a waste of the taxpayers' money to keep taking his client to court.

The authorities, though, believe it's more cost-efficient than having to continually dispatch DNA teams to prison cells. And Frank, who is now free and was driving a truck while awaiting trial, believes his entire case is a twisted saga summed up by the pretzel logic of trying to send him back to prison.

''How can the government get their money?" he says, if he's incarcerated and unable to keep up with child support, a transgression that already landed him squarely on the DNA donor list.

Vowing to fight his case to the end, Frank says: ''I'm not going back to jail."