By Maxine Bernstein
oregonlive.com
PORTLAND — The DNA profile of Marshawn Edwards never should have been entered into the national DNA database.
But it was, and based partly on its faulty inclusion in the database in 2018, the 26-year-old was subsequently charged with murder in the Sept. 24, 2021, fatal shooting of a 34-year-old man and the wounding of two other men in Northwest Portland’s Silver Dollar Pizza Co. restaurant.
DNA from a bullet casing recovered from the homicide scene matched Edwards’ DNA profile in the database.
Edwards’ DNA profile was added to the database several years earlier because of a reported sexual assault in Fairview in 2014, when Edwards was a juvenile, a case that led to no criminal charges. Police closed the case as “unfounded,” less than two weeks after the reported assault, according to court records.
If DNA from a person whose connection to an alleged crime has been deemed “unfounded,” it should not be entered into the national database, according to FBI rules. Only DNA from unsolved crimes and from convicted felons is supposed to be included.
Oregon State Police follow the FBI rules and are not to enter DNA profiles from unfounded cases, state police Capt. Kyle Kennedy confirmed to The Oregonian/OregonLive.
Edwards’ lawyers urged a judge last week to toss out the DNA evidence in the case linking their client to the fatal shooting scene, arguing police violated his constitutional rights.
Edwards’ DNA was obtained from a sexual-assault kit from a 17-year-old girl who accused Edwards, then also 17, of rape on Nov. 2, 2014. He said the sex was consensual.
“Oregonians — and I will say Americans in general — believe strongly that their DNA privacy is important, and that (privacy) should only be diminished when you’ve been convicted of a felony,” or when a DNA profile is taken from an unsolved crime, argued Venetia Mayhew, one of Edwards’ defense lawyers. Edwards’ identity was known at the time of 2014 sexual assault allegation, and the allegation was determined to be unfounded, they said.
“The other, more important point is that this was searched years after the case was closed,” Mayhew said. “So there’s really no justification without a warrant to do so.’’
Without disputing that Edwards’ DNA wasn’t supposed to be added to the database according to FBI rules, Multnomah County Deputy District Attorney Sean Hughey argued that Oregon has never recognized a privacy interest in “DNA genetic material presumably left behind” on the body of another person who had a rape exam and kit submitted to police.
Multnomah County Judge Jenna Plank agreed with the state, ruling that Edwards no longer had a privacy right to his DNA once he had sex and left his DNA on someone else’s body.
“I don’t find a basis for this court to be the first in the United States to rule that an individual maintains a privacy interest in sperm left in the body of another person that has been later retrieved by way of a rape kit,” Plank said from the bench. “Based on the facts of this case, I don’t see that as supported by the case law.’’
Plank added that prosecutors had presented other evidence that was sufficient to find probable cause that Edwards committed the shooting.
Edwards’ lawyers Mayhew and Edie Rogoway plan to appeal the ruling once their client’s case has concluded. His trial is set for July 17.
Mayhew and Rogoway contend that any other evidence police later found — including a gun used in the shooting and clothing worn by the alleged gunman — resulted from search warrants that rested on the improper DNA match.
Edwards would have the right to have his DNA expunged from the database had he known it was ever entered in it, they argue.
They wonder how many other DNA profiles have been included in the national database that shouldn’t be there.
In the 2014 sexual-assault case, the girl reported to police during a single interview that night that Edwards and another boy, age 18, both had sex with her after she had gone to Edwards’ apartment. Just before 10 p.m., the girl, accompanied by a friend, showed up at the Gresham police department to report that she had been raped. An officer from Fairview ended up accompanying the girl to Mt. Hood Medical Center to undergo a sexual assault forensic exam.
The girl then did not respond to further attempts by police to contact her by phone or through visits to her home, according to police reports. Police interviewed both teenaged males involved, who each said the sex was consensual.
Police closed the case as “unfounded” 11 days after it was first reported, police reports show.
Two years later, in 2016, Fairview police submitted Edwards’ DNA profile to the state police, who didn’t enter the DNA profile into the national DNA database, called CODIS, until 2018. The judge pressed law enforcement to figure out what prompted the submission of the DNA test to the state police years later, but neither Fairview police, the state prosecutor or defense lawyers had an answer.
Police reports don’t explain it.
Edwards’ lawyers suspect it was part of the Oregon’s grant-supported effort to have police agencies across the state clear out their backlog of untested sexual-assault kit evidence and have it sent to labs for analysis.
In December 2021, Portland police investigating last year’s shooting at the Silver Dollar Pizza restaurant discovered a match between DNA taken from a spent bullet casing recovered at the fatal shooting scene and Edwards’ DNA profile in the national database.
Portland police Det. Jason Koenig testified in court that Edwards’ name first surfaced as a potential suspect in the killing only after the state police reported a match between the DNA from a 9mm bullet casing recovered at the homicide scene and the DNA profile from the reported 2014 Fairview sexual-assault case.
Edwards’ lawyers urged the judge to consider a case in San Francisco, in which a sexual assault victim’s DNA profile was entered into a national database and later was used to link her to another crime.
In 2016, a rape victim voluntarily provided her DNA to San Francisco police to help identify her attacker. Five years later, police tied her to an unrelated burglary using her DNA sample that had been entered and left in the national database and charged her with a felony property crime. The district attorney later dropped the case, saying the use of her DNA was a violation of her Fourth Amendment right against unreasonable search and seizure. She’s now suing the San Francisco police.
But Plank ruled that Edwards lost any privacy interest to his DNA derived from his sperm, and that the testing of it in the DNA national database was not a violation of his privacy right.
According to the judge, his left-behind sperm is fair game.
“It is commonly understood that a person relinquishes control of sperm when depositing it in the body of another person, as it is functionally irretrievable and can result in infection, pregnancy, or a host of other outcomes that the depositor knowingly has little to no control over after relinquishment,” she wrote in her ruling.
The judge didn’t put much weight into the violation of national FBI protocols by the inclusion of DNA from an unfounded case.
“There was a violation” of rules, Plank said, “but I didn’t see an actual statutory violation.’’
The judge and lawyers from both sides said they couldn’t find any other state or federal case with facts identical to Edwards’ that could provide further guidance.
But Mayhew pointed to a 2017 Oregon case in which the Oregon Court of Appeals ruled that a person can retain privacy and possessory rights over their DNA, even when it is legally in police custody and provided by another person.
In that case, the housekeeper of a man she suspected was having sex with his adoptive daughter took some of the girl’s underwear out of the house and gave it to police. Police tested the underwear to determine whether the man’s sperm and DNA was on it, without obtaining a search warrant. The Oregon Court of Appeals ruled that it was an illegal search because the man retained privacy rights over his DNA on the underwear since it required an additional search beyond “plain view.”
“We believe our case is analogous to that,” Mayhew said.
States that participate in the national DNA database sign a memorandum of understanding with the FBI that they will comply with the federal rule on what DNA is uploaded, expunged and how records are kept. If they don’t comply, they can lose access to the national database.
Tung Yin, a Lewis & Clark Law professor, said, “I think the defense lawyers are right in the sense of how the law should be, but in terms of what the law is right now, the judge is probably right.”
Though the uploading of Edwards’ DNA profile into the national database may have been a violation of FBI rules, it doesn’t necessarily follow that it violated current law on privacy rights, Yin said.
“The lawyers are right to raise this issue. I think the trial court, though, is bound by the current (law) and probably got it right,” Yin said. “What this does is preserve the issue for the defense lawyers to continue to press on appeal. You never know, but this is how (law) gets advanced.”
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