Lawmakers Advance DNA Testing Bill for Violent Crime Cases

Omaha Sen. Robert Hilkemann speaks on the floor of the Nebraska Legislature, May 6, 2021. (Unicameral Information Office)
Grant Schulte
The Associated Press

Nebraska lawmakers gave initial approval last Friday to a bill that would allow police to collect DNA samples from people who are charged with — but not yet convicted of — violent crimes, despite objections that it would infringe on civil liberties.

Supporters likened Legislative Bill 496 to police fingerprinting someone who was just arrested and said it could help solve cold cases.

But opponents railed against the proposal as a potential violation of constitutional search and seizure protections, although the U.S. Supreme Court has upheld similar laws. Lawmakers advanced the bill, 30-11, through the first of three mandatory votes after overcoming a legislative filibuster to try to block it.

“We will make Nebraska a safer place with this bill,” said the bill’s sponsor, Sen. Robert Hilkemann of Omaha.

Sen. Steve Lathrop of Omaha said collecting a DNA swab isn’t much different than getting fingerprints from a suspect who was just arrested. Lathrop, an attorney and chairman of the Legislature’s Judiciary Committee, said the bill is about “catching the bad guys” who are charged murder, kidnapping, assault, arson, sexual assault, robbery or burglary.

“This is getting a little astray when we say we’re trampling people’s rights,” he said.

Lathrop’s committee offered an amendment he said would align the provisions of LB 496 with findings in the U.S Supreme Court decision Maryland v. King to avoid violating the Fourth Amendment.

The bill would require the removal of DNA evidence from the database if criminal charges are dismissed.

Sen. Justin Wayne of Omaha said that the measure was akin to letting the police search a private home or computer or even drawing a person’s blood without getting a search warrant, as is currently required. Supporters added a provision that would only allow testing of DNA after a judge has found probable cause, but Wayne and others said that’s not enough.

“That is a very, very scary, slippery slope that we are walking down,” he said.

Nebraska already requires people to submit to a DNA swab after they’ve been convicted of a felony. The sample is submitted to a national database, which can then be used to link the felon to other crimes.

Other senators questioned whether the DNA testing requirement would add to the state’s existing backlog of sexual assault kits which have yet to be tested. Sen. John Cavanaugh, who has worked as a public defender in Omaha, said the measure could add to the backlog, depending on which samples authorities seek to test first.

“We’re overtaxing a system that’s already overtaxed,” he said.

Wayne offered an amendment to incorporate provisions of his LB 28, which would allow an individual to file a motion for a new trial when new evidence or testimony becomes available from a witness who previously refused to testify or provide evidence due to a constitutional privilege.

Wayne cited the case of Earnest Jackson, an Omaha man currently incarcerated for a crime for which another person admitted guilt after Jackson was sentenced.

“We understand that sometimes our justice system gets it wrong and we, as a state and lawmakers, have a chance to get it right,” Wayne said. “Today, we have a chance to get it right.”

Sen. Suzanne Geist of Lincoln expressed concern about the Wayne amendment. She said the provisions could incentivize individuals to commit perjury in order to help a codefendant at trial. The amendment failed on a 24-9 vote. Twenty-five votes were needed.

This report contains material from the Unicameral Information Office.

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