State legislators overcame a filibuster on Friday and advanced a bill that will require DNA swabs to be taken from a person arrested for a violent crime like murder, rape or robbery.
LB496, also known as Katie’s Law, would make Nebraska the 32nd state that requires DNA samples to be taken of those arrested. It would expand an existing state law that requires DNA swabs of anyone convicted of a felony crime.
Sen. Robert Hilkemann of Omaha, who had a similar bill blocked from passage five years ago by then-Sen. Ernie Chambers, said this year’s bill was more narrowly drawn to include fewer felonies that would require DNA tests.
“We're trying to be smart on crime,” Hilkemann said, by not only taking fingerprints and photographs of someone arrested, but their DNA as well.
Police, he said, would be able to solve more crimes, including cold cases, if they get the DNA entered into a national database earlier, instead of waiting for a conviction.
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But a group of lawmakers, led by Omaha Sens. Megan Hunt, Justin Wayne and John Cavanaugh, mounted a filibuster against LB496, saying that taking DNA samples from someone before they were deemed guilty violated their civil rights. They also said that Nebraska's current DNA law — which requires DNA to be turned over after someone is convicted of a felony — is working.
"This is a bill that tilts the criminal justice system further away from being just, in the favor of prosecution, incarceration and conviction," said Cavanaugh, who is a defense attorney.
The filibuster was launched Thursday after an amendment was defeated that would have allowed an Omaha man, convicted in a slaying 21 years ago, another chance to argue he was wrongly sent to prison.
A group of advocates have called for the release from prison of Earnest Jackson, who was found guilty of first-degree murder while two co-defendants, including the purported shooter, were deemed not guilty based on their claims of self-defense.
"We just voted to keep an innocent man in prison," said Sen. Terrell McKinney of Omaha after the amendment's defeat.
Hilkemann said that while he sympathized with Jackson’s case, adding it to his LB496 would have removed support for his priority bill, and likely led to a veto by Gov. Pete Ricketts. Wayne should have pursued the Jackson case in a bill he had introduced, Hilkemann said, rather than trying to attach it to his legislation.
After gaining 33 votes — the minimum required — to halt the filibuster on Friday, lawmakers voted to amend LB496 so that a DNA sample would not be entered into a national database until after a preliminary hearing deemed that there was "probable cause" that a violent crime had been committed. If a person was ultimately found innocent, their DNA would be removed from state and national databases.
Both changes, according to Omaha Sen. Steve Lathrop, were done to conform with a 2013 U.S. Supreme Court ruling that upheld the constitutionality of a similar Maryland DNA law.
Wayne, who is a defense attorney, said that "probable cause" is the lowest level of proof needed in the criminal justice system and might permit police to arrest someone just to obtain a DNA sample. He also questioned why a person found innocent would be responsible for getting their DNA expunged from the databases, and if someone who reached a plea bargain, lowering their offense to a misdemeanor, would have their DNA removed.
Wayne had introduced a bill, LB28, to allow Jackson a chance at a new trial. But he said it was advanced from a legislative committee too late to make it his priority bill, which would assure it would be debated.
Jackson was 17 when he was found guilty by a jury of first-degree murder, but two co-defendants, including one who Wayne said fired the deadly shots, were found innocent in later, separate trials, after claiming self-defense.
Wayne said the shooter declined to testify at Jackson's trial, taking the Fifth Amendment against self-incrimination. He said that lack of testimony is the only reason Jackson is in prison today, and that state law should be changed so he can present the evidence at a new trial.