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When Eitan Farhi gave the police a sample of his saliva in the investigation into the murder of attorney Anat Flinner in April 2006, it is doubtful he imagined that a year and a half later the sample would help convict him on four counts of sexual assault and indecent acts.

After all, the police promised that the sample would be used only for the murder investigation. But contrary to the promise, the police kept the sample, even though this was against the law, Farhi's attorneys argue. The police kept the sample even though it proved that Farhi was not a suspect in the murder. But the sample helped convict Farhi yesterday in separate cases of rape and sodomy, two indecent acts, robbery and assaulting a policeman.

Two months after Farhi gave the saliva sample, Ashira Zamir, the head of the DNA database at an Israel Police biology lab, reviewed the findings from semen samples taken at three different scenes of sexual assault. The genetic profile was identical in all three scenes, Zamir told the Tel Aviv District Court. She examined the DNA samples taken during the investigation of Flinner's murder and found that the profile found at the three sex-crime scenes was the same as in Eitan Farhi's saliva.

But the fact the police had kept Farhi's sample even though it didn't match the findings from the murder scene, and the simple comparison done by Zamir for another case meant that the indictment should have been canceled, say defense attorneys Hedva Shapira and Amikem Hadar.

During the proceedings, the two lawyers argued for the evidence to be dismissed, but the court decided that the public interest overrode the tradition of only keeping DNA samples of suspects, detainees and convicts.

'Justifying wrongdoing'

Judges Bracha Ofir Tom, Yeshayahu Shneller and Miriam Sokolov ruled yesterday, "If we were to accede to the request of the accused, the significance would be that anyone who ostensibly committed very serious crimes and poses a real and tangible threat to others, and especially when it comes to helpless women and minors, would be set free such that he would be able to commit crimes in addition to the ones already committed."

The defense lawyers said, "The court sought every means of justifying wrongdoing."

According to attorney Shapira, "a very courageous judge is needed to come and say that 'because the police violated a law, we are setting a rapist free.'"

She says that if the indictment had not been for rape, the court would have decided otherwise. It even stated that the crime's severity was a key consideration in the ruling. "And that's a mistake," she says, "because a law is a law, and the test of a law is actually in the difficult cases." According to her, "a police force that violates the law is no less dangerous than a criminal who violates the law."

Shapira says the court thus created "a new law" allowing the police in serious crimes to compare samples with illegal databases, while for lesser crimes it may not do so.

"What interest does a police officer now have in upholding the law?" she says. "If they want to create Big Brother here they can do so easily. The only thing preventing your personal data from reaching all sorts of entities is the law."

The public defender stated as well, "The real test of the effectiveness of the rules for disqualifying evidence has to come specifically in the tough cases and when it comes to serious crimes. When we issued warnings and tried to limit the law that permits DNA databases, we were specifically warning against such situations."

The public defender said that the Farhi case raises concerns about the authorities inappropriately using databases.

The defender added that even though Zamir had made her discovery by chance and not while illegally searching databases, "the sequence of events raises concerns about the police's future use of databases, those already in its possession and those that will be in its possession in accordance with the new legislation."