DNA Clandestine Collection, Data Protection and Rule of Evidence. Jeopardizing an Homicide Investigation?

After a three years investigation the public prosecutor of Bergamo (a city near Milan) arrested the alleged author of the homicide of a young girl. The suspect has been found thanks to a massive DNA analysis that involved about 18.000 residents of the area, that led, after the skimming of the majority of the genetic profiles, to only two “candidates” .

To obtain the genetic samples to be compared with those found on the crime scene, the investigators faked a routine traffic control check-point, asking the suspect to pass the alcool-test. Further more – as the media say – the investigators were able to collect “organic fluids” from the suspect’s mother unbeknownst to her.

In this way of investigating the homicide there are two issue that haven’t been taken into account so far: what do the investigators do with the 18.000 DNA samples that they’ve collected and, more important, if a “clandestine” DNA sample collection legal under the Italian Rule of Evidence and Data Protection Regulation.

About the first issue: hopefully the “de facto” biobank should be destroyed once no more useful for the investigation, but neither public information is available nor the Data Protection Authority told a word about it. If this is not the case, this 18.000 samples will be used as a comparison for all the future investigation, meaning that those resident who voluntary gave out their samples will be routinely “investigated” unbeknownst to them.

About the second issue: the suspect’s mother has not been charged since there is no evidence of her connection with the crime. So, as a citizen not charged of anything, should have been told by the investigators that they were collecting her genetic sample.

As per the suspect, the available information don’t reveal whether the clandestine genetic sample collection has been ordered BEFORE he was officially charged by the prosecutor or AFTER his official involvement in the case as the potential perpetrator. This might lead to the possibility for the defense lawyer to object the genetic evidence be part of the trial on the basis that both samples have been collected in a wrong way.

Frankly, as this homicide is a major case in Italy, I doubt that neither a judge nor the Data Protection Authority (very aggressive against SPAM and Social Networks misuse)  will “buy” this objection, even if – as I think – has some merit.

So, provided that the defense lawyers follow this path, the trial will take years to end, because of the legal issues involved with the genetic evidence (think of the Kercher murder, that is still re-tried after having gone up to the Supreme Court and back to the Court of appeals) thus allowing a culprit to stay out of jail longer than he deserves, or an innocent to be acquitted much too late.

As somebody said, big cases make bad justice.