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Brian Lehrer: Brian Lehrer on WNYC. Let's talk about DNA evidence for identifying people who committed crimes, exonerating those who didn't, and a new lawsuit against the NYPD. The Innocence Project says it has used DNA hundreds of times to win the freedom of people wrongly convicted of crimes. The first such exoneration was in 1989. Before that, the technology to identify DNA matches didn't exist.

The Central Park Five were exonerated in the famous New York City rape case after someone else's DNA was confirmed to be a match for the sample collected from the victim's socks. Consider this example of someone being cleared in a case that may come with illegal strings attached. A car full of people are arrested when police find an illegal gun on one of them. Police give one of those arrested a cup of water as they questioned her, then take the cup, and without her knowledge, take her DNA sample from where she held the cup. The DNA shows she did not personally handle the illegal weapon, and she is released. Good that she's cleared by DNA evidence, but then what happens to the sample?

Well, according to this new lawsuit filed by the Legal Aid Society, the city has kept that DNA sample on file with a woman's name ever since they took that cup of water from her three years ago and that should be seen as a violation of the Fourth Amendment, which protects against unreasonable search and seizure. Apparently, the NYPD has tens of thousands of DNA files on record. The Legal Aid Society says that unreasonably put so many innocent people, mostly New Yorkers of color, at risk of becoming permanent suspects whenever a crime is committed and the DNA database is scanned.

We'll talk to two representatives of the plaintiffs in this new lawsuit now. Phil Desgranges, supervising attorney with Legal Aid's Criminal Defense Practice Special Litigation Unit, and Dave Pollock, staff attorney with Legal Aid's DNA Unit. Dave and Phil, thanks very much for joining us. Welcome to WNYC.

Phil Desgranges: Thanks for having us.

Dave Pollock: Thanks, Brian.

Brian Lehrer: I'll let you two decide who's got the expertise to answer which questions. The example I just gave of the woman in the car where an illegal gun was found was highlighted in the New York Times story and the Gothamist stories on your lawsuit. What's the role of that case in the class action suit that you filed? Put it into context for us.

Phil Desgranges: That's the example of Shakira Leslie, a named plaintiff in our lawsuit who's seeking to represent, not only herself but a class of people who've been in this exact same position where their DNA was taken from them secretly by the NYPD, where they're brought into an interrogation room, given some object to either drink or consume. Then they're handcuffed and escorted out of the room and the NYPD returns and then takes that evidence, puts it in an evidence bag, and then sends it over to the medical examiner's office to have their DNA extracted, analyzed, and then indexed.

What's most problematic is that in Miss Leslie's case, she was cleared of any involvement of possessing that weapon, but they kept her DNA, and then they put it in this index called the suspect index, where it's now compared to crime scene evidence in the past and any new crime scene evidence that gets uploaded to this other database. Effectively, what it does is it makes Miss Leslie a permanent suspect in all crimes involving DNA. Despite there being no connection with her to those crimes, she's constantly having her DNA profile compared to crime scene evidence to see if there's a match.

Brian Lehrer: For our listeners to tell the players without a scorecard, that was Phil, Phil Desgranges answering that question.

Phil Desgranges: That's right. That's Phil Desgranges.

Brian Lehrer: Dave Pollock, staff attorney with Legal Aid's DNA Unit, let me throw the follow-up to you. Another example cited by the Times and Gothamist, that I guess they got from you, is of a 12-year-old. Can you tell us that story?

Dave Pollock: Yes. That was a young man who was suspected of a crime. He was given a McDonald's soda and drank from the soda during interrogation by the police. After he left the room, the same playbook was used by the NYPD. Straw was taken and put into an evidence bag and sent to the OCME. It was placed in the suspect index where it was compared to tens of thousands of crime scene samples from around the city despite having no connection between 12-year-old boy and all of these other crime scene samples.

It took the family, once they found out-- Our clients don't know at the time that these DNA samples are taken, that they're being kept, that they're even being taken much less stored in this index forever. It took that boy, I think, a couple of years to not only realize that his DNA had been taken and stored but to get it out of the index.

Brian Lehrer: Now, a supporter of this database, or a listener who's only hearing about this whole thing for the first time, might say, "This sounds like a neutral tool that would help police to implicate the guilty and exonerate the innocent. If you didn't commit a crime where you left your DNA, then you have nothing to fear from your DNA sample on file." How would you respond to that, either of you?

Phil Desgranges: Well, the NYPD isn't asking all 8.5 million New Yorkers to provide them their DNA, so that they could be able to solve any unsolved crime. What they're doing here is they're targeting primarily Black and brown folks who they suspect of crimes and effectively turning those groups into permanent suspects in these big cases. Of course, the NYPD has means that are at their disposal where they can solve crimes, but those means have to be lawful.

There are boundaries on what the government can do for a reason. The government can't just simply go into everyone's home and search it at a whim simply because doing so may make it easier for them to find a suspect or solve a crime. They have to get a warrant.

Brian Lehrer: These were all people who were at least arrested, right?

Phil Desgranges: No. This happens to people who are persons of interest in a potential crime. This happens to people who are suspects and so the NYPD brings them in for questioning, but then ultimately decides there is no basis to make an arrest. This also happens to people who are actually arrested, but they don't have enough basis to actually get a warrant and get their DNA. Of course, this happens to children as young as 11 years old. The gamut of people that this can happen to is really large. This can really implicate any New Yorker, but unfortunately, what we've been seeing is it's primarily Black and brown folks who have been the parties harmed by this practice.

If the NYPD tried to enlarge it and say all New Yorkers have to do this, I think by tomorrow the whole practice would be shut down. I don't think New Yorkers would want to just hand over their genetic material to the government and say, "Do with it what you wish." Unfortunately, they've been able to do this in secrecy because they're targeting people, not letting them know that they're taking their DNA and they're primarily doing this to Black and brown folks.

Brian Lehrer: That's who tends to have contact with the police. When you say people were harmed, is your concern for abuse just theoretical, or do you have any plaintiffs in your class action suit who say because their DNA was stored after an encounter with police, they later became victims of the criminal justice system in some material way?

Dave Pollock: Brian, that's a great question. It's really not as simple as saying, "Well, I'm not involved in criminal activities, so I shouldn't have anything to worry about if I'm in a suspect index like this." There's a significant potential for errors to occur and for individuals in the database to suffer as a result of being involved in the criminal justice system. One example of a way that can happen is lab contamination.

A Queens man recently was wrongfully arrested and lost his job because of a laboratory error by the medical examiner that resulted in an erroneous database set. That error was only detected because he had an airtight alibi. He was in New Jersey at the time. That prompted the OCME to examine its testing records and realize that a contamination mistake has been made, but there were serious consequences for him.

Another example is something that we call DNA transfer. The simple fact that we all leave our DNA behind in every place that we visit, every store, every coffee shop, every subway train. Terrell Gills was a Legal Aid client who was implicated in a robbery at a Dunkin' Donuts store by database hit. He was wrongfully arrested and jailed for a year and a half and he was prosecuted based solely on that DNA match. As we later found out, it was clear that he had not committed any crime. He was cleared of any wrongdoing. His DNA was detected at the scene only because he was a regular customer at that Dunkin' Donuts and unbeknownst to him, he had left his DNA behind at the store.

There's a real risk here to people who are in the database. It's not theoretical at all.

Brian Lehrer: Listeners, who has a question or a story to tell about DNA and law enforcement? 212-433-WNYC. Anyone else ever surprised like the woman in the lawsuit to find the police had collected your DNA after giving you a drink or a cigarette. There was a cigarette butt example in the filing too or anything else? 212-433-9692. Does knowing this database exists make you feel safer, less safe, or neither, or who has a question? 212-433-WNYC, 212-433-962, or tweet @BrianLehrer for our two guests from the Legal Aid Society, which has filed this lawsuit against the NYPD.

Do I understand correctly, that the state of New York has a policy limiting DNA storage to people who've been convicted of crimes, but the city policy allows long-term storage on file for those who are merely arrested? Phil, is that right?

Dave Pollock: This is Dave, Brian. I can speak to that.

Brian Lehrer: Okay, sorry. Sure.

Dave Pollock: Yes, not at all. That's absolutely correct. The state legislature established the state DNA database in 1984 and has directed that only people with certain convictions be added to the state database. There's a whole regulated process for that. The process of being added to that database and the searches that are occurring in that database are closely regulated. None of that is true of this local city database. The decision to add them to the database is that local database is purely at the discretion of the NYPD and the medical examiner. There's no regulation or oversight over the local suspect index or the database.

Brian Lehrer: Is part of your lawsuit asking for the state standard to apply to the city, they can store DNA samples from people who are convicted of crimes, but not anything less than that?

Philip Desgranges: Well, the state standard already exists for the state index. The legislature has already created an entire framework for this index and said that this should be the index for the state of New York. What the city has done is they've just done an end-run around this law, and say we're going to create one regardless of whether or not the law, the legislature is authorized us to do so.

Now without the authorization is like regulation and all the harms that come with it. What we're asking for is that the court hold that this index is unlawful and can no longer persist and that people's DNA who was unlawfully taken in this manner where secretly, without their knowledge, without their consent, or warned, that it'd be purged from this index. To the extent, the city officials want to compare DNA profiles at crime scenes to someone who's been convicted. There's already indexed for that and they can do that, but what they're doing here is something completely unregulated and unlawful.

Brian Lehrer: Also, some people are calling this a stealth database, because, like the woman given a cup of water, or the 12-year-old given a soda from McDonald's by police, they don't know those cups are being used to collect their DNA, are you suing to stop that, or just the long term storage of the file?

Philip Desgranges: Yes, we are suing to stop that, and that's why this is a class-action lawsuit because there are potentially hundreds of thousands of individuals who had no idea that their DNA may be in this index. If you've been brought into an interrogation room, and you've been offered a cup of water, there's a potential that your DNA may be in this index without your knowledge, and of course, obviously, without your consent. The large scope of people who are implicated here that just don't know about it is really numbering the thousands. As a result, we need a class action to effectively represent the mall and ensure that their rights are being protected here.

In the past, there have been individual lawsuits where one person's brought a case like this, 12-year-old to get their DNA removed, but that's because his lawyer has found out that his DNA was in this index and informed him and then so they brought this case. This lawsuit is seeking to effectively end this practice at large for everyone and change it once and for all.

Brian Lehrer: What standard would you set then for when DNA of a suspect could be collected?

Philip Desgranges: Well, the same standard that exists in any other context where the NYPD wants to get access to private information, that they'd have to get a warrant or court order or ask the person's consent. For example, if they want to get access to your cell phone and look through your phonebook, your call log history, they have to get a warrant to do so. If they want to go inside your home, to search to see if there's anything there that may implicate you in a criminal case, they have to get a warrant to do so, but here, your basic private genetic material.

The NYPD is effectively accepted from this legal framework where they would normally have to get a warrant, and have said that they're just simply going to take it without your knowledge and without the consent, and without ever going through the process of getting a warrant. That's incredibly problematic because there's lots of people who are being swept in this database that have absolutely no reason to be there, to begin with.

It's also again, as we mentioned, completely unregulated. If we're successful with this lawsuit, the NYPD can still be able to solve crimes as they do in every other context by just getting a warrant, getting a court order when they have a basis to suspect someone, but if they don't have the basis or they don't have any real evidence, they can just take people's DNA without their knowledge or without their consent.

Brian Lehrer: This is WNYC-FM HD and AM New York, WNJT-FM 88.1 Trenton, WNJP 88.5 Sussex, WNJY 89.3 Netcong, and WNJO 90.3 Toms River. We are in New York and New Jersey Public Radio, and streaming live@wnyc.org. A few more minutes with Legal Aid attorneys, Phil Desgranges and Dave Pollock. Two of those involved in the new Legal Aid lawsuit against the NYPD on how they take people's DNA samples without their knowledge, and then store them for a long, long time, turning a lot of New Yorkers into permanent suspects, and disperately by race, as it turns out. Cheryl in Soho, you're on WNYC. Hi, Cheryl.

Cheryl: Oh, hi. This may be off the mark. I don't know. Several years ago, I was bonded, and they did fingerprinting and all kinds of things. I just wanted to know if I was swept into this as well.

Dave Pollock: Thanks for the question, Cheryl. It really depends on if you were taken into an interrogation room, and if you were given something that you could consume, something like a glass of water, or a bottle of water, or a cigarette? If so, potentially NYPD could have recovered that item and recovered your DNA from it. Without more information, it's hard to say.

Brian Lehrer: Listener writes on Twitter, "As a brown-skinned person and mother of three black boys, the database does not make us feel safer due to slow and well-documented disparities in justice system. Also, do DNA indexes like 23andMe, render us vulnerable to non-consensual law enforcement use? Can either of you answer that listener's question?

Dave Pollock: Yes, absolutely. That's a great question. They absolutely do make us vulnerable. Actually, as a matter of fact, the NYPD has recently indicated it intends to begin and has already begun doing investigations using what's called investigative genetic genealogy. Investigative genetic genealogy takes the DNA found at the scene of an unsolved crime and uses publicly available DNA databases like ancestry.com to investigate entire families.

The NYPD is set to conduct these investigations without any oversight whatsoever. Part of what it will be doing is collecting DNA reference samples from people that are not suspects but could be family members of a potential suspect. Once your DNA is in the hands of the NYPD, there's really no telling what will happen to it. You could be at risk of having your grandfather or cousin or your daughter swept up into an investigation like this.

The NYPD has said it will collect DNA samples for investigations like these in the same way it does now, that is surreptitiously, which creates a perverse incentive to gather as much DNA as possible from innocent New Yorkers to aid in investigations like this, which rely on building family trees.

Brian Lehrer: This surreptitious gathering of DNA samples is one of the reasons you filed this as a fourth amendment suit. The Fourth Amendment to the Constitution, protecting against unreasonable search and seizure. It was interesting to hear Ketanji Brown Jackson with Senator Ben Sasse yesterday discuss how the writers of the Constitution couldn't have known about modern technology when they wrote the Fourth Amendment. You have to look at the history of how it has been applied to different generations of new technology or circumstances.

In that context, listener Stephanie on Twitter asks, "Wondering if this is being litigated in the Supreme Court or towards the Supreme Court, and wondering with the politics of the court right now, any thoughts of the guests about this"

Philip Desgranges: This isn't being litigated right now, in the Supreme Court. I think it'd be a long way to get there, we just filed earlier this week. Ideally, we're able to resolve this much much sooner before that kind of a question could even be necessary to be asked. Hopefully, the Court that will be deciding this case will agree that this practice violates the Fourth Amendment and find it unlawful, and hopefully, the city will change that practice as a result.

We're hopeful that when there's a light shined upon it, and they're really held accountable, that the city will change and adapt much more fair and legal practices, rather than continuing what they've been doing for over a decade now just secretly taking people's DNA.

Brian Lehrer: Bill in Brick Township, you're on WNYC. Hi, Bill.

Bill: Good morning. Yes, thank you. I just wanted to point out that my concern is that this collection technique has become normalized in the popular culture because it's used as a plot point in almost every police procedural. Old Leroy Jethro Gibbs has been collecting DNA and fingerprints this way for years on NCIS.

Brian Lehrer: Who wants to comment on the ubiquity of this on TV? We could cite Law and Order, other programs too.

Dave Pollock: There is a lot of coverage where these kind of practices are depicted and it's almost seen as acceptable. Of course, it isn't acceptable. When the government takes something that's private as your DNA without your knowledge and consent, that's an invasion of your privacy. That's a harm to an individual. It's a harm to a community. Our lead plaintiff, Miss Shakira Leslie, talked about how she felt her trust in the NYPD was really violated when she found out that her DNA was stolen like this and the concerns that maybe that her family could be implicated through future investigative genealogy searches. I think really scares her. We can't continue having a practice like this, where large swaths of our New York City community feel like they can't trust NYPD because they continue to engage in these secretive practices of taking people's DNA.

Brian Lehrer: One more call - [crosstalk]

Philip Desgranges: Brian, if I could just add, this actually this practice that we're challenging here takes it a step further than what you see on TV typically because it's like once you're placed in this index after your DNA is taken and it's placed in an index, it's like being a suspect in a lineup like you do see on TV. Except the lineup is a genetic lineup and you're a suspect in every crime in New York City involving DNA evidence in the last 15 years and for the future. The scope of that is really trouble.

Brian Lehrer: Is that the way it works, by the way? If they have someone's DNA from a crime scene, they then run it against this entire database of tens of thousands of New Yorkers whose DNA has ever been collected for any reason.

Philip Desgranges: Absolutely. Once they have a DNA profile from a purported suspect, it's automatically uploaded to the medical examiner suspect index, regardless of whether the person has been convicted or even charged with a crime and before there's been any comparison between that person's DNA and whatever the evidence there is in that case. Then once it's uploaded to that suspect index, they are now a suspect in 30,000 or so other crimes in which DNA was collected previously.

Every profile in the suspect index is compared to every profile in the so-called crime scene index. A new comparison takes place anytime a new profile is added to the crime scene index or to the suspect index. In that way, it is perpetual and you get compared to every single profile that is previously added and added in the future.

Brian Lehrer: One more call on the NYPD and your DNA and this new lawsuit about how they collect and store it filed by the Legal Aid Society. Our guests are two Legal Aid lawyers. Omar in Queens, you are on WNYC. Hi, Omar.

Omar: Brian, thanks for taking my call. My house was burglarized last year, and when the detectives came over, they swabbed the scene to pick up any DNA from any burglars. They asked me also for my DNA and they took my DNA, which I regret now given it to them. My DNA is probably in their database now, or is it expunged somehow? You know anything about that?

Brian Lehrer: What an interesting question, because he was the victim in this case, and if his story is accurate, they took his DNA.

Philip Desgranges: Thanks for the question, Omar. There's really no way to tell because this local day database is completely unregulated. The rules are made by NYPD and the medical examiner alone. It's certainly possible that your DNA could have ended up in the index. I will point out that the medical examiner, I don't know if the NYPD has any policy on this, but the medical examiner does have a policy of not adding victim DNA to this particular index.

As we've pointed out. this is an unregulated index, it's really hard to say with any kind of certainty whether that's possible or not. I think it certainly is possible. We don't really have a way of knowing because none of this is transparent to us. We only know as much information as the NYPD and the medical examiner are willing to share.

Brian Lehrer: Last question, how do you see DNA evidence in general? I mentioned in the intro to this segment, how the innocence project touts hundreds of cases since the technology was first used in 1989, in which they used DNA evidence to exonerate hundreds of people who have been wrongly convicted of things, Central Park 5, many others. Do you as legal aid lawyers have a love-hate relationship with DNA as an investigative tool?

Philip Desgranges: Brian, it's true that DNA can be used to exonerate, but that's not a justification for taking the DNA illegally and for storing it illegally in an unregulated way, in an unregulated index. The state index exists and the NYPD can use it in its investigations. That use of DNA and the normal everyday use and access to DNA in its investigations for the NYPD is really not an issue in this lawsuit. The district attorney's offices across the city move to compel DNA from our clients all the time.

When it's justified in which probable cause to support it, those motions are generally granted. Our clients give their DNA samples and they're compared to the evidence in the case in which they're a suspect. That happens every day across the city and is really not an issue here. We're talking about the surreptitious taking of DNA from people who don't know it, an illegal taking of DNA, and then the storage of that DNA forever in an unregulated suspect index when NYPD has plenty of crime-fighting tools using DNA at its disposal already.

Brian Lehrer: Philip Desgranges, supervising attorney with Legal Aids, Criminal Defense Practice, special litigation unit, and Dave Pollock, staff attorney with Legal Aids, DNA unit legal aid society has filed this lawsuit against the NYPD for the way they surreptitiously collect and then permanently store people's DNA samples. Thank you so much for sharing your arguments with us.

Dave Pollock: Thank you.

Philip Desgranges: Thanks so much for your time, Brian.

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