For Immediate Release - November 13, 2009

Superior Court Judge dismissed the civil lawsuit filed by the ACLU and Keith Amato

Cape & Islands District Attorney Michael O'Keefe announced that yesterday a Superior Court Judge dismissed the civil lawsuit filed by the ACLU and Keith Amato against District Attorney Michael O'Keefe, Massachusetts State Police, and MSP Crime Laboratory.

Judge Nancy Staffler Holtz ruled in a seventeen (17) page decision that even when considering all of Amato's allegation as true, as the Court must in the pre-trial dismissal stage, all of the plaintiff's claims fail. See attached face page of Decision.

The plaintiff made three (3) claims against the parties. First, a violation of the Fair Information Practices Act, in which the defendant claimed that the lab maintained his DNA profile longer than necessary. The Court said that the law requires that the records be maintained for a minimum of fifteen (15) years or six (6) years after the case is closed and all appeals are exhausted. Secondly, the plaintiff claimed that his right to privacy under MGL Chapter 214, section 1B was interfered with. He claimed that the State was creating a "shadow" DNA database. The Court found that the District Attorney returned his sample to him, but that the profile must be kept with the case file. The Court further found that no one disseminated to the public or any individual, any private information concerning Amato to state any cause of action. Thirdly, Amato claimed that the DA breached his contract with Amato to return his sample. The claim failed because it was not disputed that his sample and the samples of others were returned or destroyed.

The District Attorney stated: "I took care to ensure that those who voluntarily gave a sample to aid the investigation had an opportunity as promised to have his sample returned or destroyed. We did that. It's also important to note that no sample so obtained for which a DNA profile was developed will be stored in any database. They would only be kept with the case file provided for by the Commonwealth's record retention laws. This enures to the benefit of those who have been ruled out, creating evidence in the case file of their innocence."

District Attorney O'Keefe, the Massachusetts State Police and the MSP Crime Laboratory were represented by Assistant Attorney General Jessica V. Barnett.

COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, ss.                                                                                                         SUPERIOR COURT
                                                                                                                                CIVIL ACTION
                                                                                                                                NO. 08-2738-H

KEITH AMATO, on behalf of himself and all others similarly situated

vs.

MICHAEL D. O'KEEFE1 & others2

MEMORANDUM OF DECISION AND ORDER ON
DEFENDANTS' MOTION TO DISMISS

INTRODUCTION

               This action arises out of the Department of State Police and the District Attorney's

       continued retention of the plaintiff, Keith Amato's ("Amato"), DNA sample and profile, which

       Amato voluntarily provided to the Department of State Police during the Christa Worthington

       murder investigation in 2002. Amato brings this action on behalf of himself and others similarly

       situated3. The defendants, Michael D. O'Keefe ("the District Attorney"); the Forensic and

       Technology Center of the Commonwealth of Massachusetts, Department of State Police ("the

       Crime Lab"); the Executive Office of Public Safety ("EOPS"); and John Grossman, move to

       dismiss Amato's complaint pursuant to Mass, R. Civ. P. 12(b)(6). For the following reasons, the

       defendants' motion to dismiss the complaint is ALLOWED.

1  In his official capacity as District Attorney for the Cape and Islands.

2  Forensic and Technology Center of the Commonwealth of Massachusetts, Department of State Police; Executive Office of Public Safety; and John Grossman, in his official capacity as Undersecretary of the Executive Office of Public Safety.

3  Although Amato brings this suit on behalf of himself and others similarly situated, throughout this memorandum the court will refer to only Amato for the sake of simplicity.

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