The man accused of raping two lifeguards in deserted swimming pools in Northern Virginia is challenging the method by which police identified him as a suspect, in an appeal to the Virginia Supreme Court.
A Virginia man who is serving 65 years in prison for brutally raping two lifeguards in Alexandria and Fairfax County will ask the Virginia Supreme Court to overturn his convictions, based on how he was arrested.
On Tuesday, lawyers for Jesse Bjerke will ask the highest court in the Commonwealth to overturn his conviction and sentence in 2020 for attacking lifeguards at deserted swimming pools in Fairfax in 2014 and Alexandria in 2016.
The subject of the appeal, filed by Bjerke’s attorney Christopher Leibig, challenges the constitutionality of how detectives used family DNA analysis to confirm that Bjerke was the man who raped the rescuer during the attack on Alexandria. The same analysis was then used to link Bjerke to the earlier Fairfax County rape.
In 2019, genealogy researchers used public databases to link DNA recovered from the victim in the 2016 attack to a member of Bjerke’s family.
While following Bjerke to a restaurant in the Old Town, detectives picked up two straws Bjerke had used, after throwing them in the trash.
The straws were submitted to the Virginia Department of Forensic Sciences, which developed a DNA profile from the straw. The results enabled the police to obtain an arrest warrant for Bjerke, who was unaware that the police considered him a suspect.
After his arrest, a mouth swab of Bjerke’s DNA matched the DNA found on the victim, with a possible error of 1 in 7.2 billion.
Without disputing the DNA findings, Bjerke’s attorney said police should have obtained a search warrant before submitting the straws for DNA analysis.
During the trial and in his appeal, Leibig disagreed with rulings that detectives could analyze DNA recovered from a discarded straw in the same way they can search for clues and evidence in garbage left outside a person’s home.
In his petition to the Virginia Supreme Court, Leibig said that while the courts have upheld the constitutionality of investigators collecting evidence, including fingerprints from discarded garbage, Bjerke’s case is different.
“We leave traces of our genetic identity everywhere we go. These genetic traces, all capable of conveying a great deal of private information about us, are not “abandoned” in the traditional sense of the term. These invisible treasures of information are necessarily and unintentionally left behind. They can be easily retrieved, ”said Leibig.
Leibig argues that a search warrant should be required before investigators can analyze DNA in the same way that a search warrant is required before police can analyze the contents of a legally seized cell phone.
While advanced technology is often used in law enforcement, Leibig says courts are often asked to set limits on whether the use violates a person’s constitutional rights against searches, searches and abusive foreclosures.
“It necessarily takes a while for issues like this to find their way to court,” Leibig said.
Although police can legally follow people on a public street, Leibig said that over time courts have reassessed the “reasonable expectation of privacy” standard.
“It was clear that people in society found the idea of government GPS monitoring of their entire movements substantially intrusive, and much different from being followed on the streets in person,” Leibig wrote.
In his conclusion, Leibig asks the Virginia Supreme Court to address the issue and overturn his client’s conviction: “At this time, there is no binding precedent in Virginia regarding the implications of the Fourth Amendment. DNA testing without warrant of genetic material unwittingly poured out in public. “