Reprinted with permission from Forensic Magazine.
By Seth Augenstein
Brandon Weathers sexually assaulted and impregnated a 13-year-old girl who had lived in his home as a foster child.
Convicted and admonished by the Nebraska criminal judge as “one of the worst I’ve seen,” Weathers was sentenced to 100 to 160 years in prison in 2016.
But upon starting his lengthy stay behind bars, Weathers refused to give a DNA sample to state authorities. A quick swab of the inside of his cheek would allow his genetic profile to be uploaded to the Combined DNA Index System, or CODIS. That would, in turn, determine whether he had committed other crimes that remained unsolved.
A year later, after some scrutiny, a judge issued an order allowing authorities to collect the genetic sample – by force. Weathers’ profile was put into the system – and it immediately hit four violent rapes in Omaha between 2002 and 2004, as the Nebraska prosecutors announced last month.
Weathers had previously served stints in prison in 1995 and burglary in 2000 before the alleged rapes, but his DNA was never collected before by prison authorities in the Cornhusker State.
The Nebraska serial rapist is one of thousands of American prisoners who have dodged DNA collection efforts by authorities. Most of these inmates are either awaiting execution in one of the states with the death penalty, or serving out the rest of their lives behind bars for some of the most heinous crimes imaginable.
Forensic Magazine found that seven states hold prisoners whose DNA had not been collected, and who were not in CODIS. Most often, these states had no retroactivity conditions in their DNA laws, which were generally enacted in the 1990s and were never extended into the past to include criminals already locked up. But there are other cases where prisoners refused to give samples, or authorities simply didn’t get the testing done for logistical reasons. For others, there were simply collection delays.
Over more than two months, some states refused to provide information about the status of the DNA collection efforts within their prisons. Other states started collecting the samples after they were questioned about the status of their inmate population.
But experts agree: most of the long-term inmates who aren’t in CODIS probably have other crimes on their resume. And a significant number of unsolved mysteries could be cracked with a simple swab in a violent criminal’s cheek, the experts said.
“There’s definitely history with these people,” said Joseph Pollini, a retired NYPD cold case homicide squad commander, and professor at John Jay College of Criminal Justice. “They start committing crimes at an early age, and then of course they work their way up to serious crimes like homicides. Most of the time it’s not one crime they commit – it’s a whole set of crimes – and it’s not only within the state, it’s nationwide.”
Why the DNA collections haven’t already been completed over the last two decades is nothing short of injustice, others said.
“These problems show the lack of foresight and coordination that existed when many states first passed their DNA collection laws,” said Rockne Harmon, a retired Alameda County, California prosecutor who is one of the nation’s foremost DNA experts.
“The fact that it has not been a secret within those states, and that steps still have not been taken to fix either the laws or the collection protocols, reflects a reckless disregard for public safety,” the former prosecutor added.
The states are Nevada, Nebraska, Montana, Georgia, Rhode Island, Tennessee and Delaware.
Nevada
Nevada is the state with the most inmates, and the most widespread program to get their inmates all included within DNA databases. Law enforcement and corrections officials told Forensic Magazine in April that 8,000 prisoners had avoided DNA collection up until that time.
But the state is pushing to collect the genetic samples of the inmates – especially the lifers and those awaiting their execution.
“Here’s a very likely group of people – 1,500 people who are either on death row or spending the rest of their life behind bars for very violent acts,” said Steve Gresko, a senior criminalist at the Washoe County Sheriff’s Office, and also the state CODIS administrator for Nevada, in an April interview. “I’d be shocked if we didn’t solve a good number of cold cases when we got through these people.”
The Nevada DNA database began in 1989, with a state law providing for the collection of DNA in certain sex crimes. But none of the laboratories could immediately do the work. Gradually, facilities were upgraded, and the collection slowly expanded to include other offenses, according to experts. Homicide was added to DNA collection law in 1997, but all felony convictions were only added in 2007. A determination by the then-attorney general ruled that law enforcement should collect DNA only “prospectively,” Gresko explained.
Retroactive collection was never the letter of the law.
“This resulted in a significant number of violent criminals who were convicted in the 70s, 80s, and a good chunk of the 1990s, who we have not been able to collect until now,” said Gresko.
The question of the offenders already in custody – and what crimes they may have gotten away with before being caught – was raised last fall by the district attorney for Washoe County, the jurisdiction that includes the state’s third biggest city, Reno. The state’s top law enforcement directed corrections to start the collections shortly thereafter.
Nebraska
Nebraska, where convicted rapist Weathers awaits trial on the four additional crimes based on his DNA, had a problem with inmates’ refusal to willingly comply with the existing law.
The convicted criminals would object, and for years, no swabs were taken.
Forensic Magazine contacted state authorities including the attorney general’s office in April concerning retroactivity and prison collection of DNA.
On May 2, local newspaper The Omaha World-Herald wrote a story about the inmates defying the DNA collection efforts.
On May 12, the Nebraska Department of Correctional Services issued a formal written policy directing the forcible collection of DNA from the remaining inmates.
(Prison officials contend they began implementing the changes as early as February, before the written policy.)
“We changed our approach,” said Dawn-Renee Smith, a spokeswoman for the NDCS, explaining the written policy “helped significantly.”
The 78 total inmates who had been withholding genetic samples were whittled down to a group of 13 as of last month, authorities said. One of the samples taken by force was from Brandon Weathers – and four rapes from more than a decade earlier were apparently solved with a single genetic sample, as Nebraskan authorities announced in June.
Montana
Twelve inmates who were admitted prior to 1995 are still not in CODIS, according to Montana State Prison officials. The state’s law was never made retroactive, and corrections officials have not swabbed them, officials say.
Another 33 untested convicted criminals in the state were behind bars when authorities were asked about the status of the DNA collection. Amy Barton, a Department of Corrections spokeswoman, told Forensic Magazine in June those 33 inmates had not been included upon admission due to various extenuating circumstances. (Some had been admitted to the infirmary upon arrival and bypassed the normal intake process, for instance, she said.)
Since then, all 33 of those inmates have been swabbed and added to the DNA databases, said Sam Casey, the admissions manager at Montana State Prison.
“Every one of those people, we’ve collected DNA samples from them,” said Casey.
But the dozen – a group which includes infamous local murderers Leland Docken and Jerry Forsyth – are not subject to DNA collection by law, he added.
“It’s kind of a loophole,” Casey said.
Some nuances of the law complicate matters, Casey said. For instance, if a prisoner gets out but violates the terms of their release and are re-admitted, they still don’t have to give a DNA sample. But if they commit another crime, then they are collected, Casey added.
Montana, like most of the other states, also collects DNA of prisoners upon release, state officials added.
Georgia
Georgia did not immediately collect the DNA of inmates who were locked up prior to its 1996 statute mandating collection. But they have since returned to that population and added them to the local and national databases, according to officials.
“We did go back and get samples of the offenders imprisoned prior to the 1996 legislation,” said Joan Heath, a spokeswoman for the Georgia Department of Corrections.
But others were not on the rolls at the time, they explained.
As of a May count that Forensic Magazine requested, some 986 offenders were not collected. The majority (651) of those prisoners were in a diagnostic phase, a 10- to 14-day process each offender goes through upon intake into state custody, Heath said. But the other 335 could be assumed to be inmates sentenced as first offenders and conditional discharges under the state’s criminal statutes, Heath added.
Rhode Island
Rhode Island first instituted DNA collection in its corrections system in 1998 for capital offenses, in 2001 for crimes of violence and 2004 for all felonies. (State law added arrestees of crimes of violence in 2015.)
Prisoners convicted of crimes prior to those dates, and who are still in custody, are not part of any databases, according to Cara Lupino, the supervisor of forensic biology and DNA at the Rhode Island Department of Health, which administers genetic collection.
But state officials did not answer how many inmates that meant currently behind bars, without a DNA sample on file.
Rhode Island law, like the one in Nevada, was never explicitly worded to disallow collection of already-incarcerated inmates. But it wasn’t worded to mandate or even encourage the collection either, Lupino told Forensic Magazine in May.
In Nevada, the solution was to review the legislative minutes and notes taken during the passage of the law in 1989, to discern the legislators’ intent at the time.
No action has been taken in Rhode Island to get the retroactive samples, Lupino added.
“The other consideration would be what the influx of new samples would be – obviously affecting our turnaround time,” said Lupino.
Tennessee
Tennessee Department of Corrections officials confirmed that all felons convicted prior to July 1, 1998 who are still behind bars have not had their DNA collected.
But how many inmates who are in state custody – but not on the DNA rolls – in Tennessee remains unclear.
The DOC officials took two months to answer whether the retroactivity situation applied to the Volunteer State. In that time, the Tennessee Bureau of Investigation pointed to the applicable state statute guiding policy. The DOC declined to answer further questions.
The state corrections population hovers consistently above 20,000, according to annual reports.
Delaware
Officials in Delaware refused to answer about their prison population, or the DNA collection efforts behind bars. A spokesman for the attorney general’s office, Carl Kanefsky, did not respond to more than two months of emails and phone messages from Forensic Magazine.
The state’s CODIS administrator, A. Robyn Quinn, was “not interested” in speaking about the topic with Forensic Magazine, a secretary told a reporter.
But an analysis of the state statute indicates that only persons convicted of sexual offenses in Delaware are subject to DNA collection. A bill pending in the legislature intends to mandate DNA collection for arrestees – as well as collection from all prison inmates convicted of violent felonies. That bill was tabled in a legislative committee in March, however.
No estimates for the number of inmates who remain out of CODIS in Delaware were obtainable by Forensic Magazine.
Some Progress – and Some ‘Reckless Disregard’
Some other states have recognized the population of untested inmates sitting in their prisons, and have completed their DNA collections of inmates. For instance, West Virginia and Wisconsin have collected inmates who were incarcerated before their DNA laws were passed.
West Virginia law did not originally allow for retroactive sampling of inmates. But a series of court orders, one of which was sought by state corrections officials, allowed for DNA collection for all inmates locked away before the legislation was passed, according to Lawrence Messina, a spokesman for the West Virginia Department of Military Affairs and Public Safety.
Wisconsin did not allow for retroactive collection of inmates who were convicted of a crime prior to the DNA legislation. But the state passed an additional law in 2013 called Act 20 which required a DNA sample for anyone who was in prison on or after Jan. 1, 2000 for felonies, among other conditions, according to John Koremenos, a spokesman for the state’s Department of Justice. The people who have since been released have been pursued by the Department of Corrections. Of the 20,390 names who had outstanding DNA sample obligations, authorities have cleared 17,450 for various reasons, according to corrections spokesman Tristan Cook.
“(Cleared) means DOC received confirmation from the Wisconsin Department of Justice that the DNA sample has been collected; the individual has been confirmed deported or deceased; or the individual does not have a qualifying conviction, had their qualifying conviction reduced to a non-qualifying conviction or had their conviction overturned or expunged,” Cook told Forensic Magazine in May.
Experts told Forensic Magazine that the so-called “collection gap” needs to be corrected – perhaps by the federal authorities.
Harmon, the California prosecutor, said the states letting the prisoners remain behind bars without compelling them to submit DNA is a major loss for the American justice system.
Killers can keep killing, rapists can keep raping, he said. And their past crimes could potentially go forever unsolved.
“Not having a sample from an eligible offender can allow him to escape detection and continue to rape and kill,” said Harmon. “Only national oversight can correct the problem.”
Pollini, the former NYPD detective, sees the positives heading forward, if states get their swabs ready and line up their prisoners for collection.
“As far as putting DNA into the system, there’s nothing better,” said Pollini.
“It only benefits the system,” he added. “We have nothing to lose, and all to gain.”
About the author
Seth Augenstein is a reporter for Forensic and Laboratory Equipment magazines. He spent a decade as a reporter at New Jersey newspapers, most recently at The Star-Ledger. He has interviewed people at crime scenes, in prisons, from hospital bedsides, within operating rooms, inside laboratories, standing in flood waters, cringing outside four-alarm fires, and in many dirty kitchens and quiet living rooms. He has won numerous state press association awards for his work. He is also a fiction writer.