Hundreds of genetic profiles of victims and witnesses have been removed from New York City’s controversial DNA database, the Office of the Chief Medical Examiner revealed in response to a Freedom of Information Law request filed by the Legal Aid Society and shared with The Appeal.
In an Oct. 18 letter, the OCME said it removed 372 profiles from the database over the last five years because the associated DNA samples matched a case victim or witness, which the office is prohibited to store. The letter also said the office removed another 65 profiles from its database over the same time period because of a court order. Additionally, the office said it did not maintain DNA data according to age.
The OCME and the NYPD, which collects and turns over DNA samples to the office, have come under fire in recent years for what critics say is an unregulated system that violates civil liberties.
“The lack of transparency is stunning,” said Terri Rosenblatt, the Legal Aid staff attorney who runs the organization’s DNA unit and helped file the FOIL request. “We don’t know how many people in that database are people who are not convicted or even charged with crimes,” she said. “It leaves communities, and the people impacted, without any way of having recourse for themselves.”
In an email to The Appeal, an NYPD spokesperson said the database “has been instrumental in the capture of violent criminals and the resolution of numerous cold cases each year.”
The OCME did not respond to The Appeal’s requests for comment.
The chief medical examiner’s office maintains a local DNA index system of at least 82,473 forensic DNA profiles, or profiles created from evidence taken from a crime scene, according to the October letter. That’s an increase of well over 18,000 profiles since July 2017, when the office was storing about 64,000 profiles, according to WNYC.
Separately, as of July, there were over 31,446 suspect samples. The NYPD told The Appeal that many of the suspect profiles are associated with individuals with previous sex offender convictions, significant arrest histories, or ongoing investigations by law enforcement. But Rosenblatt explained that “those profiles may not be from people suspected of a crime at all.” They could include “people who were merely taken into custody for questioning or who were exonerated.”
While DNA belonging to a victim or witness cannot be permanently indexed, the OCME can keep any suspect sample, unless a court orders the office to remove it. And as long as DNA remains in the OCME database, it can be tested against any forensic evidence gathered by police in the past or the future.
The OCME database differs with the state-run databank, which includes more than 660,000 profiles. The New York State DNA Databank only includes samples taken from people upon their conviction on felony and misdemeanor offenses, and under state law, DNA profiles are automatically removed if a person is exonerated after a conviction.
The NYPD said it gathers DNA evidence “in strict adherence with the law” and follows protocols that “have been scrutinized” internally and externally.
New Yorkers “should be shocked that the city has allowed a completely unregulated DNA index to flourish, that people can’t even find out if they’re in or find a way out of,” Rosenblatt told The Appeal. “This is our genetic code.”
The issue of DNA collection drew national attention this year when one controversial sample collection effort became public knowledge.
In 2016, after the death of Karina Vetrano, a 30-year-old white jogger found strangled to death in a Queens park, the NYPD launched a dragnet DNA collection effort targeting Black men in Queens and Brooklyn. Tests had shown that the genetic material on Vetrano’s body and on a cellphone belonged to a Black man.
Robert Boyce, the chief of detectives at that time, allegedly disseminated a list to NYPD commanders in both boroughs that included nearly four dozen Black men who had been arrested for misdemeanor and felony offenses in the previous three years. Officers collected saliva swabs from more than 360 Black men, according to an anonymous letter written by an NYPD officer to defense attorneys for a later identified suspect.
“[Boyce] made the direction verbally because he did not want to be held accountable if he put the order in writing,” the officer wrote in the letter.
NYPD Sgt. Brendan Ryan told CBS News in March that claims in the letter about the department’s collection of DNA in the Vetrano case were “riddled with falsehoods and inaccuracies.”
In April, a jury found Chanel Lewis, a 22-year-old Black man from Brooklyn, guilty of the murder. He had given his DNA to the NYPD voluntarily, and it matched with the DNA evidence found underneath Vetrano’s fingernails. He confessed to strangling her, but his attorneys said his videotaped confession was coerced and inconsistent with the facts.
Court records later confirmed that the NYPD investigators gathered DNA—some collected from the scene and others given voluntarily—from over 150 people for the case, WNYC reported. DNA samples from many of the men who didn’t match in the case were still flagged as “suitable for entry” into the local index.
Donovan Richards, a City Council member from Queens and chairperson of the council’s public safety committee, told The Appeal, “As a Black man in America, to know that over 200 Black and brown men had their DNA stolen … without any proof that they were part of any crime, is a disgrace.”
Critics of New York City’s DNA collection and storage practices have achieved some legal victories. On Nov. 13, Legal Aid announced that it had secured the destruction of a juvenile fingerprint database which it said the NYPD maintained illegally. In 2018, a Manhattan judge ruled that people under the age of 18 could not legally consent to giving DNA samples to police without their parents’ permission. But because the OCME does not maintain data by age, as the FOIL letter revealed, there is no way for the public to know if the office is complying with the ruling, Rosenblatt said.
Last month, Legal Aid called for the city to end its local DNA index, after a FOIL disclosure revealed that the OCME contaminated a DNA sample that led to the wrongful arrest and prosecution of a suspect in a 2018 burglary. The error wasn’t discovered until June of this year.
“If they are getting rid of people who aren’t convicted of crimes, they’re only doing that if there’s some mechanism that forces them to,” Rosenblatt said. “There is no space in a fair and just city for an unregulated DNA database.”
In 2015, New York City Council Speaker Corey Johnson proposed a local measure that would have prohibited the OCME from indexing DNA profiles of people without criminal convictions, but that bill was never voted on in committee. New York state Senator Brad Hoylman introduced legislation in May that would require New York City and other municipalities to expunge all DNA records and establish a single, computerized state DNA identification index. The bill has not yet been voted out of the internet and technology committee.
In an opinion piece written for the New York Daily News, departing NYPD Commissioner James O’Neill spoke out last week against the proposal and dismissed critics’ claim that the local DNA database is “rogue.”
“Restricting or prohibiting the use of DNA and photo-recognition technologies would force investigators to fall back on less reliable and accurate means of identification, including eyewitnesses, who are less successful than technology at identifying people accurately,” O’Neill wrote.
Richards said he and others on the City Council have worked for months with the NYPD and OCME to come up with guidelines for how DNA is collected and stored in the local index. But progress has been slow. Separately, a spokesperson for the council told The Appeal that members were “awaiting the results of the review New York Police Department is conducting of its DNA database protocols.”
“Right now, it’s the wild, wild West,” said Richards, who has called for the DNA index to be dismantled until there are new guidelines. “This is a local database that exists with very little transparency, if any transparency. We don’t know who is in it. I don’t know if I’m in it.”