Dec. 15, 2004 – A lawyer representing a man forced to give a DNA sample in an Omaha Police Departmentâ€™s serial rape investigation plans to file a lawsuit next week in an attempt to recover the sample still being kept by police.
Attorney William Gallup said he would be filing an action to retrieve his clientâ€™s DNA sample in light of the unsealing of an affidavit police used to obtain the sample. He added that the case probably would be expanded into a class-action lawsuit in an effort to retrieve all the DNA samples submitted by men targeted in the investigation.
"They were all innocent," Gallup said. "Now the question is why wonâ€™t they return the DNA samples?"
Police launched what critics are calling a "DNA dragnet" in June, asking several black employees of the Omaha Public Power District (OPPD) to "voluntarily" submit DNA samples after the fourth in a series of what they believe are related rapes dating back to September 2002.
A DNA dragnet is a police technique in which people who fit a broad description of the perpetrator based on witness accounts or, in some cases, live or work near the crime scene are asked to provide DNA samples to investigators. The samples are then compared with biological tissue taken from the crime scene in an attempt to find a match. Critics say the practice violates the constitutional and civil rights of those sampled, including Fourth Amendment protections against unreasonable search and seizure.
In this case, police targeted OPPD employees, who fit the general physical description of the rape suspect, after one victim said her attacker mentioned he worked for OPPD. It is less clear why Gallupâ€™s client -- a 32-year-old black man named Lamont Gilchrist -- was asked to give a DNA sample, even though a woman who survived one of the rapes had ruled him out as the perpetrator when police brought him in the very night of the incident. Police obtained Gilchristâ€™s sample through a court order after he refused to give one voluntarily.
In Gallupâ€™s estimation, even though the police used what he believes amounted to coercion to obtain the samples of those who â€œvoluntarilyâ€ submitted their DNA -- the men have little chance of winning damages in a suit.
Police said the DNA samples will be returned after the rapist is brought to trial and convicted.
"The DNA samples that have been collected will be retained as evidence until after the individual responsible for these crimes has been arrested, tried, and convicted," said Sergeant Teresa Negron in an interview with The NewStandard. "The samples are considered evidentiary and must be retained for discovery purposes."
Negron said that the individuals who voluntarily submitted DNA samples had received a letter indicating they were eliminated as suspects, and that the samples would not be submitted to any database for comparison purposes to any other crimes.
But attorney Gallup said several of the men who gave samples told him they have received no such letter from the police. He contends the DNA samples should be returned immediately and disputes the policeâ€™s rationale in keeping the samples until after a trial and conviction.
"That is absolutely fallacious -- absurd," he said. "The only DNA admissible is the rapistâ€™s."
Gallup is filing his lawsuit in response to the recent unsealing of the warrants used to acquire the DNA sample of his client, as well as a separate one allowing the police to see the personnel records of current and former OPPD employees. Access to those records led police to ask several of the employees to "voluntarily" submit DNA samples.
Gallup said the policeâ€™s affidavit failed to show probable cause that there was "a reason to believe that my client had raped her," Gallup said. "That is simply not the fact."
Gallup said Gilchrist was targeted simply because he refused to give a sample. "When he didnâ€™t want to cooperate they thought that was suspicious," Gallup said, highlighting one of the major concerns opponents of DNA dragnets often cite.
Gallup also wondered why the police asked for his clientâ€™s DNA sample at the same time they were asking for the list of OPPD employees. If they thought his client was the rapist, he said, why did the police want the list of OPPD employees?
"None of it makes sense," Gallup concluded. "They didnâ€™t have a clue who the [perpetrator] was."
Gallup and Nebraska State Senator Ernie Chambers had requested the courts unseal the warrants months ago. Douglas County Judge Jeffrey Marcuzzo ordered the affidavits be opened in August, but appeals by the city delayed their unsealing until late November.
In a statement released to the press, Officer David W. Volenec of the Omaha Police Departmentâ€™s public information office explained why the police wanted the affidavits sealed.
"[Omaha Police Department] requested that the affidavits be sealed, as they contained identifying physical characteristics of the victims and specific details of the incidents," read the press notice, adding that the victims should "remain anonymous during the course of the investigation."
Police pared an initial list of 174 OPPD employees obtained through their warrant down to 32 men who fit the police description of the rapist. Police showed up unannounced at an unknown number of these menâ€™s homes and -- often in front of their families -- asked the men to submit DNA samples. Nine of the individuals "voluntarily" submitted DNA samples.
"They were embarrassed," Gallup told TNS. "[The police] scared them -- these fellas didnâ€™t know their rights." He said the police used coercion to procure the samples by threatening the men with a court order.
According to the affidavit, the police gave no other reasons for the special search warrant in Gilchristâ€™s case other than the fact that Gilchrist refused to submit a DNA sample. The same survivor who had visually ruled him out as the attacker described the rapist as "a black male, short and muscular" -- a description police said Gilchrist fits, even though, in Gallupâ€™s estimation, his clientâ€™s appearance differs significantly from the one released to the public.
Gallup questioned how strenuous the process is for approving warrants. "The judges usually rubber stamp these warrants," he said.
Police defend their acquisition and use of the warrants in the case by arguing they are obligated to exhaust "every investigative tactic" in order to eliminate or implicate suspects.
In at least one previous dragnet, a police department was not allowed to keep the DNA samples in a database. According to the American Civil Liberties Union, 160 black men whose DNA was obtained in the dragnet investigation of a serial rape and murder case in Ann Arbor, Michigan won a monetary settlement and an order that police return or destroy their samples. None of the samples in that dragnet matched the DNA from the crime scene.
Gallup said his clientâ€™s lawsuit will be restricted to retrieving the DNA samples. In Gallupâ€™s estimation, even though the police used what he believes amounted to coercion to obtain the samples of those who "voluntarily" submitted their DNA -- the men have little chance of winning damages.
According to news reports, the controversial investigation has led Sen. Chambers to call the police techniques racial profiling. He could not be reached for comment.
Sgt. Negron dismissed allegations of racial profiling as "mudslinging."
And police continue to dispute the contention that the collection of DNA samples constituted a "dragnet."
"Our investigative tactics were not a random sweep, nor did we consider it a â€˜Dragnet Search,â€™" wrote Police Chief Thomas Warren Sr. in a statement released to the press. "The Omaha Police Department sought and obtained a court-ordered search warrant based on sufficient probable cause that the suspect in this case may have been employed at the Omaha Public Power District."
Asked about the racial profiling charges leveled by Chambers, Gallup said the police had every right to target black men in the investigation since the suspect has been described as black, but he disagreed with their methods. "I donâ€™t think [the police] would have engaged in the sweep if the OPPD employees were white," he said.