OPRA lawsuit seeks to learn more about law enforcement use of blood spot samples from State Newborn Screening Program

OPRA Blog Editor’s Note: CJ Griffin of Pashman Stein Walder Hayden is representing the Office of Public Defender and the New Jersey Monitor in this OPRA lawsuit discussed in the following article by the New Jersey Monitor. The case is currently pending before the Superior Court of New Jersey in Mercer County, Docket No. MER-L-1210-22. The hearing is scheduled virtually for September 8, 2022 at 11:00 a.m.

Newborn screening program used to aid criminal investigation, public defender says

Blood drawn as part of a mandatory New Jersey newborn testing program could end up as evidence in the hands of law enforcement.

The state Office of the Public Defender is alleging law enforcement in New Jersey obtained blood taken as part of the program and used it to charge the child’s father with a crime, an allegation that has led to cries of alarm from civil liberties advocates.

“This program was developed for health purposes and to protect health, and there’s no consent process for the state taking this information from newborns,” Jeanne LoCicero, legal director of the American Civil Liberties Union of New Jersey, told the New Jersey Monitor. “Parents, when this happens, trust the state to protect this sensitive information and not make it easily available to law enforcement agencies or other agencies.”

The controversy in New Jersey comes as police in other jurisdictions have drawn scrutiny for the methods they use to obtain DNA samples. Recently ousted San Francisco District Attorney Chesa Boudin alleged police used DNA collected from rape victims to tie them to crimes. In New York, cops are accused of giving cigarettes or sodas to suspects during interrogations so officers can secretly collect DNA from the objects.

Under New Jersey law, every child born here must be tested for 60 disorders within 48 hours of their birth. The decades-old program is meant to identify rare and potentially serious conditions in newborns.

A small amount of dried blood remains after the tests are concluded, and those records can be retained for up to 23 years before being destroyed, according to state record retention schedules.

In at least one instance, law enforcement has used those records to aid in the criminal investigation of a 1996 sexual assault, the New Jersey Office of the Public Defender alleges in a new lawsuit targeting the state Department of Health and other entities (the New Jersey Monitor is a co-plaintiff).

Instead of seeking a warrant for which officers did not have probable cause, the New Jersey State Police subpoenaed the testing program to obtain the blood sample of a child, now nine years old, whose father was suspected of committing the assault, the New Jersey Office of the Public Defender claims.

DNA analysis conducted by the State Police was later used as probable cause for a warrant to obtain DNA from the father, who was subsequently charged in the assault case.

LoCicero warned the police’s actions, as alleged by the public defender’s office, should worry everyone.

“Because DNA contains intimate, private information about not only the newborn but their family, we need to make sure that that private information is protected from government intrusion, whether it be in this context or a wide range of others,” LoCicero said.

A spokesperson for the New Jersey State Police did not return a request seeking comment.

LoCicero said the blood screening records should be subject to disclosure only with parental consent — or the child’s consent if they are an adult — or under a warrant approved by a judge.

It’s not clear how often or how many law enforcement agencies have used testing program records to aid criminal investigations.

Open Public Records Act requests filed by the Office of the Public Defender and the New Jersey Monitor seeking a list of subpoenas served on the state-run lab that conducts the screenings were denied by the state, which cited court confidentiality rules surrounding grand jury records.

The state declined to release redacted subpoenas and did not provide an index that would have made clear how many subpoenas were served against the Newborn Screening Laboratory.

The New Jersey Monitor and Office of the Public Defender on Monday filed a lawsuit seeking to force those disclosures.

“The Office of the Public Defender is very concerned by the previously unheard of demand for infants’ DNA in pursuit of a criminal investigation,” said Jennifer Selliti, a spokesperson for the public defender. “We believe information about how widespread this practice is should be fully disclosed to the public.”

In response to Boudin’s claims about how police are using the DNA of rape victims, California lawmakers are advancing a bill that would bar authorities from keeping rape victims’ DNA in a database for any reason other than identifying their attackers.

Meanwhile, the New York City Police Department is facing a class-action lawsuit over its practice of collecting DNA from suspects who leave cigarette butts, bottles, and cans behind in interrogation rooms. Such seizures are allowed in New York under a 1988 U.S. Supreme Court decision that found Fourth Amendment protections against unlawful search and seizure do not apply to garbage, but they’re barred under New Jersey case law.

Last month, the New Jersey Supreme Court limited when authorities can use DNA evidence, saying they cannot cite lab testing delays or other administrative issues to circumvent the five-year statute of limitations on prosecuting most crimes.

New Jersey Monitor is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. New Jersey Monitor maintains editorial independence. Contact Editor Terrence McDonald for questions: info@newjerseymonitor.com. Follow New Jersey Monitor on Facebook and Twitter.

For more information about OPRA or this case, contact CJ Griffin at cgriffin@pashmanstein.com.

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