A Virginia man who’s serving 65 years in prison for brutally raping two lifeguards in Alexandria and Fairfax County will ask Virginia’s Supreme Court to overturn his convictions, based on the way he was caught.
On Tuesday, attorneys for Jesse Bjerke will ask the commonwealth’s highest court to throw out his 2020 conviction and sentence for attacking lifeguards at deserted pools in Fairfax in 2014 and Alexandria in 2016.
The focus of the appeal, filed by Bjerke’s attorney Christopher Leibig, challenges the constitutionality of the way detectives used familial DNA analysis to confirm Bjerke was the man who raped the lifeguard in the Alexandria attack. The same analysis was later 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 tailing Bjerke to an Old Town restaurant, detectives picked up two drinking straws Bjerke had used, after he tossed them in the garbage.
The straws were submitted to Virginia’s Department of Forensic Science, which developed a DNA profile from the straw. The findings enabled police to get an arrest warrant for Bjerke, who was unaware police considered him a suspect.
After his arrest, a buccal swab of Bjerke’s DNA was analyzed, and matched the DNA found on the victim, according to prosecutors.
While not challenging the DNA findings, Bjerke’s attorney has said police should have gotten a search warrant before submitting the straws for DNA analysis.
During trial and in his appeal, Leibig disagreed with rulings that said 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 Virginia’s Supreme Court, Leibig said while courts have upheld the constitutionality of investigators harvesting 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 of them capable of conveying extensive private information about us, are not ‘abandoned’ in any traditional sense. These invisible troves of information are necessarily and unintentionally left behind. They can be easily collected,” Leibig said.
Leibig argues a search warrant should be required before investigators can analyze DNA in the same way a search warrant is required before police can analyze the contents of a legally seized cellphone.
While cutting-edge technology is often used in law enforcement, Leibig says courts are often asked to set limits on whether usage violates a person’s constitutional rights against unreasonable search and seizure.
“It necessarily take a while for issues like this to work their way through courts,” Leibig said.
Although police can lawfully follow people on a public street, Leibig said over time courts re-evaluate the “reasonable expectation of privacy” standard.
”It was clear that people in society found the idea of GPS monitoring of the totality of their movements by the government substantially intrusive, and far different from being followed down the street in person,” wrote Leibig.
In his conclusion, Leibig asks Virginia’s Supreme Court to address the issue, and overturn his client’s conviction: “At the present time there is no binding Virginia precedent about the Fourth Amendment implications of warrantless DNA testing of genetic material unintentionally shed in public.”
