DNA swabs have been collected from only about 1,300 people in the BTK serial murder investigation, Sedgwick County District Attorney Nola Foulston said Tuesday — less than one-third the number she reported in an earlier news conference about the case. Foulston said the 4,000 figure she used in January actually referred to the number of tips that were cleared by the 1,300 samples. In many cases, Wichita police asked a person for a sample after receiving multiple tips about him. Foulston said the discrepancy in the numbers surfaced during a meeting about the case Tuesday morning.

During an afternoon news conference, she said the DNA “elimination samples” were compared only to evidence collected in the BTK investigation. She said the samples would not be put into any criminal DNA database. Police started collecting DNA samples from potential suspects in March 2004 after BTK sent a letter to The Eagle that claimed responsibility for a 1986 murder that had not previously been linked to him.

Ten other packages have since turned up that reportedly were connected to the killer. One contained a computer disk that reportedly led police to the arrest last month of Dennis L. Rader. Rader is awaiting a preliminary hearing on 10 counts of first-degree murder.

During the news conference, Foulston apologized for the mix-up in the numbers and said she did not blame it on the Wichita Police Department, which oversaw the collection of the samples. “It was my fault, not their fault,” she said. “I don’t know why no one corrected me…before today.” The 4,000 figure had been widely reported in the past two months.

Foulston said the DNA samples probably will be held in the crime labs that processed them — one at the Sedgwick County Forensic Science Center and one at Kansas Bureau of Investigation headquarters in Topeka. Although some have questioned plans to hold onto the evidence from people who have been cleared, Foulston said state law requires evidence in criminal cases to be kept as long as the case remains open. If and when the BTK investigation is closed, she said, it will be up to a judge to decide what to do with the evidence. She said a judge could decide to simply destroy it.

In the meantime, Foulston said, law enforcement officials will make no attempts to solve other crimes with the samples. “This evidence will not, shall not and cannot be placed in any database at all,” she said. The evidence is not subject to the Kansas Open Records Act, she said. “These records are not available to anyone in the media,” she said. “These records are not available to anyone on the street. These records are protected. “We are the guardians of this evidence, and evidence is being protected.”

One Wichita defense lawyer with an interest in the topic is Dan Monnat, who represents a man who was forced through a court order to submit a DNA sample to police. The man, Roger Valadez, went to court last week in an effort to get the sample back.

“Negotiations are ongoing with the state of Kansas in that case, and we are hopeful that the matter will be resolved by agreement,” Monnat said.

Foulston declined to comment on the Valadez case.

All content © 2005 THE WICHITA EAGLE and may not be republished without permission.

The Wichita Eagle – By Hurst Laviana

Roger Valadez wants his DNA back and wants to know why Wichita police once considered him a BTK suspect. His lawyer filed a motion Tuesday in Sedgwick County District Court seeking the return of a DNA sample and personal items seized from Valadez’s home after his Dec. 1 arrest. The motion also asks that Valadez’s DNA profile be returned and that the information be purged from any data bank or database.

The court filing raises a broader question: What will happen to the DNA samples taken from more than 4,000 other men in the BTK serial murder investigation, now that Dennis L. Rader has been charged with the homicides?

Dan Monnat, the Wichita lawyer who filed the motion for the 64-year-old Valadez, said his client’s situation is different from most because although many of the others consented to giving swabs, police had a search warrant for Valadez’s DNA and collected the sample while he was in handcuffs. He was excluded as a BTK suspect shortly after, police said.

The motion also seeks disclosure of documents and oral testimony used to justify the search warrants served on Valadez. That information was sealed by District Court Judge Greg Waller “to protect informants, tipsters and the privacy interests of any individuals that may fall under suspicion.” The court filing touches on an issue of growing significance, a pair of Harvard University professors said Tuesday.

The question of what happens to DNA samples collected in this case “is huge,” said David Lazer, associate professor of public policy at the Kennedy School of Government at Harvard. A colleague agreed. “I certainly believe there are serious privacy concerns relating to DNA dragnets and DNA sweeps, involving what’s going to happen to the sample and what’s going to happen to the sample and the profile once a case has been solved,” said Frederick Bieber, associate professor of pathology at Harvard’s Brigham and Women’s Hospital.

The ethical questions raised by what to do with DNA samples collected by sweeps are being actively debated in policy circles, Bieber said. “What is the balance between freedom and liberty and privacy and the obvious natural instinctive interest in having safe streets and safe communities?” Bieber asked. “There’s got to be some balance. This is something that society will need to continue to wrestle with. “No one would argue with the value of arresting the perpetrator of a heinous crime. The question is, at what cost?”

Wichita police spokeswoman Janet Johnson declined to comment on the motion. Asked for comment on Valadez’s DNA and the samples taken from others, the district attorney’s spokeswoman Georgia Cole referred to a Jan. 14 media release. It said that “much of the BTK investigation has involved the collection of DNA samples by legal consent from individuals.”

“Thousands of citizens have willingly submitted their DNA samples to law enforcement.”

“While speculation may suggest otherwise, samples collected during this investigation are not entered into any DNA database.”

But such assurances mean little, Bieber said. Although Wichita police may not have reported the DNA information to state or federal criminal databases, “there’s nothing to stop them from putting that in an Excel file and having it in their laptop,” Bieber said. Valadez’s DNA was tested by the KBI. Spokesman Kyle Smith wouldn’t comment on Valadez’s situation but said the only DNA information kept in a KBI database is from convicted felons.

Monnat said he doesn’t know where Valadez’s DNA or DNA information may be now. “We’ve been given no direct assurances about it,” he said. “There is no reason to have that information unnecessarily in the hands of the government.”

A judge could hear the motion March 18.

All content © 2005 THE WICHITA EAGLE and may not be republished without permission.

The Wichita Eagle – By Tim Potter and Stan Finger