Baby blood used to convict pedophile of 1996 rape sparks ethical debate: Police allegedly took DNA from lab without a warrant – and lawyers say this violates the Fourth Amendment
- A man was charged in 2021 for raping a 10-year-old in 1996
- Police officers are claimed to have taken DNA from a newborn screening lab
- READ MORE: DNA data of healthy babies could be hacked or sold
A child rapist was convicted in New Jersey nearly three decades after committing his crimes – using the blood of his own child.
In 2021, Brian Avis, 61, was convicted of sexually molesting a 10-year-old girl in 1996 after New Jersey police analyzed the DNA of Avis’ child, who was born in 2012.
A little-known rule means that every baby born in New Jersey’s DNA is harvested for 23 years and can be used by law enforcement without a warrant.
DailyMail.com revealed this week that similar laws – lawyers have said violate Americans’ Fourth Amendment – are in place in all but eight states, which has sparked an ethical debate.
California, Arizona, Kansas, Kentucky, Massachusetts, Minnesota and Tennessee store the baby blood indefinitely.
While the number of crimes solved with newborn DNA is unknown, New Jersey police have opened the lab five times, and California has done the same, resulting in one arrest.
In 2021, Brian Avis, 61, was convicted of sexually molesting a 10-year-old girl in 1996 after New Jersey police analyzed the DNA of Avis’ child, who was born in 2012
Institute for Justice (IJ) attorney Brian Morris told DailyMail.com: ‘There are constitutional ways to solve crimes.
‘That’s what New Jersey should be doing. Of course, if every American had to turn over their DNA and fingerprints, it might be easier for police to solve crimes.
‘But that’s why we have the Fourth Amendment. The Founders rejected the idea that the King could take whatever or whomever he wanted.
‘But that’s what New Jersey is doing here. And it’s taking from our most vulnerable and innocent population – babies.
Many states offer parents the option to have samples destroyed after testing is completed, but many do not.
Nebraska, New Hampshire, Nevada, New Mexico, Ohio, Oklahoma, New Jersey, New York, Rhode Island, South Dakota, Virginia and Wisconsin do not provide a form for destruction.
All 50 US states mandate newborn genetic screening within 48 hours of the child’s birth to test for rare disease, which is sent to a government-owned lab for testing.
However, the leftover samples are shipped to warehouses where police officers can access them when needed or sold to third-party researchers – and most states do not require a parent’s consent.
The leftover blood samples are shipped off to places where police officers can access them when needed or sold to third-party researchers – and most states do not require a parent’s consent
All 50 US states mandate newborn genetic screening within 48 hours of the child’s birth and retain blood until either the tests are completed or indefinitely
State police sequence the DNA and run a further analysis using investigating genetic genealogy.
The sample is then uploaded to a genetic database to identify relatives of unknown suspects, which narrows down the search.
New Jersey’s incidents have recently come to light in recent lawsuits sparked by a 1996 cold case resolution that came about through the use of DNA.
Avis has not been named in the 2022 news regarding police obtaining DNA samples, but his case matches the same crimes and was solved through DNA linking.
News broke in 2022 that law enforcement used blood taken from an infant to link the child’s father to a 1996 sexual assault case.
DailyMail.com has contacted the Atlantic County Prosecutors Office for comment.
Avis was accused of breaking into a home on East Evans Boulevard and assaulting the sleeping child in 1996.
‘When the victim woke up, the suspect fled the scene,’ according to a 2021 press release from the New Jersey State Police.
Detectives collected evidence at the scene and obtained a DNA sample of the suspect from the victim’s bed.
Avis had a DNA profile created in 2002, which was then uploaded into the Combined DNA Index System (CODIS), a national DNA collection database – but no matches were found.
Erica Jedynak, of Morris County, is one of the two plaintiffs and told DailyMail.com that she was disgusted upon hearing of the decades-long retention after she initially declined blood be taken from her newborn in 2022
In January 2021, detectives from the New Jersey State Police Cold Case Unit and Brigantine Police Department reopened the case in a cooperative investigation.
‘On July 26, 2021, detectives submitted the DNA to a private laboratory for analysis,’ the press release states.
‘The laboratory conducted Microarray Single Nucleotide Polymorphisms (SNP) testing for IGG analysis in an attempt to identify genetic relatives of the suspect based on the DNA sample obtained at the scene.
‘Through various investigative means, detectives identified Brian Lee Avis as the suspect.
On September 12, Avis was located by police, who issued a search warrant for his DNA, and one day later, he was charged with aggravated sexual assault of a child under 13 years old, burglary, and endangering the welfare of child
Chief Rich Casamento, Brigantine Police Department, said in a September 17, 2021 release: ‘Several months ago, Detective Sergeant Glasser of the Brigantine Police identified this evidence as a case that could be solved using current DNA technology.’
READ MORE: Blood test could spot brain damage in newborn babies caused by oxygen deprivation and reduce the risk of epilepsy and cerebral palsy
The prototype test is based on a study of the blood samples of 45 babies that experienced oxygen deprivation at birth, known as birth asphyxia, which increases the risk of disabilities such as cerebral palsy and epilepsy.
DailyMail.com reached out to the Brigantine Police Department, and when asked to speak with someone about Avis, an officer said, ‘I don’t know anyone by that name.’
‘The State Police successfully obtained the child’s blood spot sample, sequenced the DNA, and then ran further analysis utilizing a technique known as investigative genetic genealogy,’ claims a lawsuit filed by the New Jersey Office of the Public Defender (OPD) against the New Jersey Department of Health.
‘The State Police alleges those results showed the newborn blood spot sample belonged to the genetic child of the suspect.
‘From there, the State Police used those results to form the basis of an affidavit of probable cause to acquire a warrant to obtain a buccal swab from OPD’s client, who is the child’s father. OPD’s client was then criminally charged.’
The document continues the claim that by using a subpoena, the State Police sidestepped its constitutional obligation to develop probable cause and obtain a warrant.’
C.J. Griffin of Pashman Stein Walder Hayden PC told DailyMail.com that the state’s health department also let at least three health-related entities access the bloodspots for research.
New Jersey is one of the many states that do not inform parents that their child’s DNA is being held for up to 23 years, and parents who have recently learned about the practice filed a lawsuit against the state, which IJ is representing.
‘This case feels like a minority report,’ said Morris.
‘It is like you presuppose these kids will do something. Use it against them if you need to.
Erica Jedynak, of Morris County, is one of the two plaintiffs and told DailyMail.com that she was disgusted upon hearing of the decades-long retention after she initially declined blood be taken from her newborn in 2022.
Jedynak explained it was a long process for her to become a mother, noting her son is a miracle baby and thought the hospital room was a sacred room to ‘observe the joy and the grace of god.’
‘The state government is also in that room and kept his blood for unknown reasons; it is concerning,’ she said.
‘We should have to agree to have our genetics taken by others. I want to do anything I can to protect our son. That room should be with just you and your baby.’
Sharon Terry, president and CEO of Genetic Alliance, commented on the retention of newborn DNA in a 2010 study in which she quoted a nurse and a new mother.
‘We were appalled when we found out. Why do they need to store my baby’s DNA indefinitely? Something on there could affect her ability to get a job later on or get health insurance.’
Terry states, ‘We need to hear the spectrum [of opinion]. We also need to figure out how to balance all the needs.’
This was the same reaction Jedynak had when she learned about the storage practices.
‘I think about a lot of times that I want to do anything to protect my son in his life; this is a violation,’ she said.
‘He is not even two years old. The fact that the state government wants to track him is assuming the guilt of tiny babies who have done nothing wrong in their lives.’
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