If Jesse L. Matthew Jr.’s DNA had been collected in 2010 when he was convicted of trespassing, Hannah Graham never would have crossed paths with her alleged abductor, said Albemarle Sheriff Chip Harding.
Harding has long been an advocate of the power of DNA both to convict and to exonerate, and now he’s pushing legislation to require that DNA samples be taken from anyone convicted of a misdemeanor. Charlottesville’s delegate to the General Assembly, House Minority Leader David Toscano, is working on a bill.
With Graham, said Harding, “you could see another victim that could have been saved.”
Matthew was convicted of trespassing in August 2010, according to court records. If his DNA had been taken then, Harding believes police would have matched it at that time with DNA taken from the brutal attack of a Fairfax woman in 2005, an attack for which Matthew is now facing attempted capital murder, abduction and sexual penetration with an object. And if he’d been convicted earlier for that assault, he would most likely have been in jail the night Graham walked up the Downtown Mall, said Harding.
Graham is not the only victim locally who could have been saved had DNA been taken at the time of a misdemeanor conviction, he said. Currently DNA is taken after a felony conviction in Virginia, although with certain violent felonies, it can be taken at the time of arrest.
Former butcher, family man and Charlottesville serial rapist Nathan Antonio Washington attacked at least seven women over a 10-year period before he was arrested in 2007. If his DNA profile had been taken when he was convicted of a misdemeanor—driving with a suspended license—in 1998, it would have been a hit with the DNA taken from a woman raped in Waynesboro in 1997, and his six Charlottesville sexual assaults would never have happened, according to Harding. “I would not have had to go into one of his victim’s homes and see blood spattered over three walls where he had beaten and raped her for hours,” he said.
Shannon Malnowski was convicted of forcible sodomy and two counts of rape in 2001, after an attack on a student at the Charlottesville High track in 2000. His DNA connected him to two earlier rapes: a UVA student in 1996, and a 78-year-old professor’s wife who was attacked in broad daylight in bushes near Culbreth Theatre in 1997. Malnowski had been convicted of misdemeanor assault in 1992 and trespassing in 1994. If DNA had been taken at those convictions, said Harding, Malnowski would have been caught after the first rape and the two latter ones wouldn’t have occurred.
“I think if we get DNA for convicted misdemeanors, we’d triple the databank and get people early in their crime careers,” said Harding. He points to New York state, which takes DNA samples for convictions of almost all crimes. Before it included petty larcenies or trespassing convictions, offenders on average would have three lower-court convictions before committing a more serious crime. In the five-and-a-half years since petty larceny has been included, the samples have been used to solve 51 murders and 222 sexual assaults.
Harding insists that he doesn’t want DNA for speeding tickets, but does want it for any jailable offense. “We already take fingerprints,” he said. “Why not take a biometric fingerprint?”
Democrat Toscano doesn’t usually carry criminal justice bills, and said this was prompted by Hannah Graham “I think this has really drawn a lot of attention to what we might have done better to prevent this.”
The bill will begin by including almost all misdemeanors besides traffic, reckless driving and petty larceny, said Toscano, and he expects that the list of misdemeanors will be further whittled down because of the cost.
In 2012 there were 45,778 new misdemeanor convictions, he said. At $35 to $45 to test each DNA sample, that adds up to an additional $2 million appropriation in a budget-strapped state, he said.
“I think there will be trade-offs along the way to make this more palatable,” said Toscano.
Harding proposes that convicted first-timers should pay for the testing, when they’re better able to pay and before they turn up again in the system with larger fines and court costs.
For those concerned that the government already has too much information about us, adding small-time criminals to the DNA databank raises red flags. “DNA is powerful stuff,” said Rutherford Institute founder John Whitehead. “It’s the basis of who we are. Before we move too fast, we should have a DNA commission and come up with good guidelines.”
Whitehead said he hasn’t seen the bills that will be introduced in Richmond, and he’d like a panel of scientists who work with DNA, law professors, lawyers and police to establish guidelines, because the situation is only going to get more complicated, he believes. And he’s concerned about the possibility of using family history to determine genetic predisposition toward crime.
DNA sampling should only be taken for violent misdemeanors, said Whitehead.
For Harding, the benefits of DNA collection “outweigh concerns about violations of the Constitution.” Protections against misuse are in place, he said, and none has occurred in the databank’s 25-year history.
“Every day we wait to expand Virginia’s DNA databank,” said Harding, “we risk one of our loved ones falling victim to an attack from a violent predator that could have been prevented.”
Albemarle Sheriff Chip Harding wants to collect the DNA from misdemeanor convictions, and said doing so could stop future horrific attacks.