State hits crime lab on DNA cache

Some files improperly kept, IG says

By Jonathan Saltzman
Globe Staff / February 4, 2009
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The State Police crime laboratory is storing the DNA profiles of hundreds of people whose crimes do not warrant it, according to an investigation of the historically troubled lab, raising the specter of what one civil libertarian called a "shadow DNA database."

Under state law, the crime lab is authorized to collect genetic samples from anyone convicted of a felony and to store them in the Combined DNA Index System, or CODIS, the FBI-funded computer database that serves as a registry for more than 6.3 million DNA samples of convicted criminals collected by law enforcement nationwide.

But the analysis by state Inspector General Gregory W. Sullivan, which is to be released today, found that the lab mistakenly entered the profiles of other defendants, including those who were convicted of misdemeanors, or felonies that were later reversed.

The lab, which discovered most of the errant profiles before the investigation, removed them from the federal database but is still storing them in a separate, searchable database while officials determine what to do with them.

"We saw no legal authority that authorized them to do this," said Barbara Hansberry, general counsel for the inspector general and one of two authors of the report by the watchdog agency. The analysis, a copy of which was obtained by the Globe, culminated a 21-month investigation launched after improper handling of DNA test results led to the resignation of the lab's director and other personnel changes.

The report does not say how many profiles were in the unauthorized database. But John A. Grossman, undersecretary of forensic science and technology for the state, put the number at about 540, or a little more than 1 percent of the approximately 45,000 Massachusetts offenders whose profiles have been collected.

Grossman said the lab removed the profiles over the last two years after discovering they had been mistakenly included in the federal database. Other states have laws that allow them to keep DNA profiles that were erroneously obtained, as long as it was an honest mistake, he said, but Massachusetts does not address the situation and officials were reluctant to destroy them.

"So we decided that the best course was to pull them but preserve the files," Grossman said. He added that the database is not easily searched and that the lab director has never authorized employees to examine them to see if they match DNA found at crime scenes.

But civil libertarians expressed alarm about the lab holding onto them.

"It's troubling," said John Reinstein, legal director of the ACLU of Massachusetts, who said it rekindled fears about an illegal "shadow DNA database." He asserts in an ongoing lawsuit that the State Police are illegally storing the genetic profile of a Cape Cod man who voluntarily gave a DNA sample to rule himself out as a suspect in the notorious 2002 rape and murder of fashion writer Christa Worthington.

"If they're not searching this separate database for evidence, I don't understand what the purpose of maintaining it is," Reinstein said.

Among the other findings gleaned from Sullivan's report and interviews with the authors:

  • Mary Kate McGilvray, a veteran of the lab who was appointed acting director after Carl Selavka resigned under pressure in March 2007, has reduced the backlog of DNA evidence awaiting analysis. But she is often relying on inexperienced analysts, and that alarms employees who fear it could lead to mistakes. McGilvray's underlings complained that she runs the operation in a "paramilitary" manner that some find humiliating and intimidating. They told the authors of the report that she used to ring a bell at staff meetings to cut speakers off and allowed others to only nod or shake their heads.

    Reached at home last night, McGilvray deferred comment to Grossman and Gregory I. Massing, general counsel for the public safety office.

  • The laboratory has failed to obtain samples of DNA from many employees who handle such evidence - a requirement in other labs - so scientists can determine whether their own DNA might have accidentally contaminated a sample. Some employees have balked because of a "trust issue" with management, the report said.

  • The inspector general questions whether the lab should continue reporting to the State Police because scientists might feel pressured to tailor findings to suit criminal investigators.

    The report was co-written by a consultant, Dr. Robin Cotton, who directs biomedical forensic sciences at Boston University's School of Medicine.

    In interviews, the authors said lab employees told them that DNA profiles were mistakenly collected from some defendants at the direction of other state workers who misunderstood the law.

    A bill signed into law by then-Governor Mitt Romney in 2003 expanded the database from individuals convicted of serious or violent felonies to all convicted felons. But some state employees erroneously took samples from people not required to give them.

    In a six-page response to the report, Massing said the only way the unauthorized database could be searched for matches with crime scene DNA is if the profiles were uploaded back to CODIS. Nonetheless, he wrote that the lab agrees that it should review storage of the unauthorized profiles.

    He also wrote that the report "goes out of its way to identify and highlight the negative." It overlooked major accomplishments, he said, including accreditation of all of the lab's forensic functions by the American Society of Crime Lab Directors' Laboratory Accreditation Board in December.

    Jonathan Saltzman can be reached at

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