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New York Considers New DNA Tech That Casts Wider Net of Potential Suspects

Authorities are considering approval of such a DNA dragnet, called "familial searching."

by Douglass Dowty, Syracuse Media Group, N.Y. / April 7, 2017
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(TNS) -- Syracuse, N.Y. -- When blood, skin or some other genetic clue is left at a crime scene, that DNA is immediately searched in a database of ex-offenders.

It's a precise check for a hit among the 625,000 convicts in New York and 13 million convicts nationwide whose genetic profile sits in an FBI database. The crime scene evidence must match the convict's exact DNA profile in up to 20 areas stored in the database.

There is only one match, and that match is a powerful weapon to solve a crime.

But in cases where there is no exact match, what if authorities could cast a wider net?

What if authorities lowered the standard for the computer's DNA search? What if the check brought back dozens of names of ex-offenders who are not guilty of this crime, but could share some genetic link to the true perpetrator? Maybe, among all those low-grade hits, is the brother or son of the criminal.

New York authorities are considering approval of such a DNA dragnet, called "familial searching." It's a new tool that would use existing technology to crack difficult cases. It would give investigators new leads to chase down on important cases that have grown cold.

It's a controversial idea. Civil libertarians and others say it exposes dozens of innocent people with no connection to the true criminal to intrusive investigations. It unfairly victimizes families of ex-convicts who have done nothing else to arouse suspicion, they argue.

A New York panel is considering allowing familial searches. It could vote on the proposal as early as Wednesday. The searches could begin after a 45-day public comment period.

The proposal limits familial searching to investigations of homicides and the worst forms of kidnapping, arson and sex crimes, as well as terrorism or crimes posing a "significant" ongoing public safety threat. A search would require state approval and could only be conducted at a state crime lab.

Arkansas, California, Colorado, Florida, Michigan, Texas, Utah, Virginia, Wisconsin and Wyoming already perform the searches. On the other hand, Maryland and Washington, D.C., outlawed them a decade ago on civil liberties grounds.

Onondaga County District Attorney William Fitzpatrick is a member of the panel that will decide on the use of these searches, the state's Commission on Forensic Science. He supports the expanded searching.

Fitzpatrick said it could reopen virtually any cold-case murder in which DNA was left at the scene, such as: Jill-Lyn Euto, 18, stabbed to death in 2001 in a Syracuse apartment building, and Jacqueline Saunders and Mary Anne Marzullo, 14-year-olds who went missing in 1967 while walking in North Syracuse. They were found dead the next morning.

He guessed that hundreds of familial searches would be requested statewide each year, with a hundred or so taking place.

Nationally, familial searching has a proven, if limited, track record. There's the "Roaming Rapist" in Sacramento, who spent six years raping women before authorities caught him through his imprisoned brother's DNA. Or the "Grim Sleeper" serial killer in Los Angeles, whose son had been convicted on a weapons charge. Or a woman beaten to death in Colorado whose perpetrator was caught after leaving DNA on the hammer.

The Denver police have a 30-percent rate in finding possible leads when doing a familial search on cold cases, according to an expert there. Not all led to convictions.

New York's current DNA searching is "like going to your favorite fishing hole in a rowboat and hoping fish will jump into your boat," Fitzpatrick said. With familial searching, "you're setting a lure and casting and reeling in fish."

Searching for a soda can?

Familial searching, at best, only gets you to an unknown relative of a criminal; you need to turn that information into a suspect, and then you need that suspect's DNA to compare against the crime-scene evidence. Remember: Your suspect is not in the computer.

The easiest way for law enforcement to quickly collect DNA, without a person's cooperation, is to stake out a target's trash. Discarded items are considered public domain, so Dumpster diving for DNA is legal.

A straw, toothbrush or soda can often provide the needed saliva to collect DNA.

Do citizens really want the government to go "snatching a soda can out of the trash" to obtain someone's DNA? wondered Brad Mauer, a Manhattan public defender who opposes the idea.

Fitzpatrick counters that authorities don't do that because it's not worth the effort unless there's another reason that person is under suspicion, he said.

"If I really want your DNA, I can get it," Fitzpatrick told a Syracuse.com reporter. "I can find your DNA, your wife's DNA."

But Maurer called that process "deeply troubling."

The other way to get someone's DNA is by asking him for it. That has its own set of problems, Maurer said: It's coercive (If you don't provide your DNA, what are you hiding?) and it's unsettling to be investigated for a crime, Maurer said.

In one case, a Michigan resident was caught up in a DNA dragnet targeting 150 people in a serial rape case between 1992 and 1994. The perpetrator's description? Black, between 25 and 35 years old and 5-feet, 7-inches to 6-feet, 2-inches tall.

One target, Blair Shelton, said he felt compelled to give a "voluntary" blood sample after a detective told him it was the only way to clear his name, according to a lawsuit filed later.

Police came to his workplace at TJMaxx and told his boss that Shelton was a suspect in a serial rape investigation, the lawsuit states.

He waited three months for the DNA to clear his name. In the meantime, he was fired from his job and was cast to his co-workers as a possible rapist. Shelton later won his lawsuit and regained control to his DNA after the actual rapist was caught.

William Moffitt, past president of the National Association of Criminal Defense Lawyers, said there's very little voluntary about a voluntary dragnet. When do the ends justify the means?

"I suggest to you that if we ran a police state, we would be much more successful at solving crime," he told CBS News in 2004, speaking of DNA dragnets.

In the most well-known case of familial searching gone awry, a New Orleans filmmaker was placed under suspicion for a month after being considered a suspect in the sexual assault and murder of an Idaho woman in 1996.

How did authorities find him? Michael Usry's father had submitted DNA as part of a Mormon church genealogy project that had been acquired by Ancestry.com. DNA from the crime scene cleared the father, but suggested a family member might be responsible.

Usry became a promising suspect: His sisters had attended college about 25 miles from the crime scene in Idaho, he had friends in the state, and his films, like "Murderabilia," trafficked in the macabre.

Even though he was innocent, Usry said he spent a month in suspense until the DNA cleared him.

But a Long Island case shows how familial searching could help solve crime.

There, police believed a jailed inmate had sexually assaulted a woman in her home, Suffolk County prosecutor Robert Biancavilla said recently. When the suspect was released from jail on an unrelated charge, police scoured the trash in his cell for DNA.

The resulting DNA was not a match in the assault case, but it was close. It turned out the suspect's brother was the perpetrator, Biancavilla said.

Is DNA like your license plate?

How different is DNA from the license plate on your car?

Some law enforcement argue that DNA is nothing more than any other attribute: your job, your home or your car.

After all, wouldn't police chase down a lead from a bank robbery if a witness provided a partial license plate? Wouldn't innocent people be scrutinized simply for having a license plate that resembles that of the criminal?

Just like a license plate, DNA can exonerate people as easily as it can convict them, they argue.

But collecting DNA is far deeply personal, critics respond.

If DNA was such an important crime-fighting tool, why isn't everyone compelled to give the government their DNA?

Why not scrutinize all DNA databases -- of crime victims, or law enforcement, or military, or even crime lab personnel - for leads? All of their DNA is kept on file, but it's kept under the strongest assurances of privacy.

Why should relatives of criminals be singled out?

A familial search can create a list of hundreds of convicts with similar genetic makeups, ranked by their likelihood of being a relative of the wanted suspect. A second DNA test on a particular convict's DNA narrows the list considerably. But it could still lead to the scrutiny of dozens of a convict's family members, some who may be quickly ruled out but others who may become suspects after a traditional investigation.

The draft rules in New York would require a multi-step process for law enforcement to perform a familial search. It would require a joint application from police and prosecutors to the state Division of Criminal Justice Services. If approved, the DNA search would be done only by the state police crime laboratory.

The proposal limits familial searches to only the most serious crimes and requires training for police and prosecutors. That "strikes a balance between enhancing public safety without compromising individual protection," DCJS spokeswoman Janine Kava said.

Just the first step

Advocates say a familial search is only the first step in a long process. It's a lead, like a tip from an informant, Fitzpatrick said.

After the initial familial search, the lab would then pick a possible profile for further testing.

A second, specialized DNA test on that profile determines whether a specific Y chromosome - passed down nearly unchanged from father to son -- matches the crime-scene DNA. Because Y chromosomes are only found in men, that test is unable to identify a female suspect.

If the Y-chromosome test comes back a match, that information could be passed on to law enforcement. Authorities could then rule out people in the target family based on a routine investigation: maybe a brother was on vacation in California, Fitzpatrick said. Or someone is the wrong gender, age or lacks the physical ability.

Authorities might obtain DNA from remaining male family members.

Maurer, the public defender, expressed concern that familial searching would unfairly target poor communities of color, which typically have a higher percentage of convicted criminals. Innocent minority families would most fall under suspicion, he said.

Fitzpatrick said the tool would help communities of color the most. The fact is that 95 percent of Onondaga County's homicide victims are black or Hispanic, the DA said.

"This process will bring justice to those families," he said.

Another opponent of familial searching is the Innocence Project, which has used DNA itself to exonerate wrongfully convicted people.

Attorney Susan Friedman expressed concern that the searches unfairly put suspicion on innocent people.

Interestingly, another group that probes miscarriages of justice, the Medill Innocence Project at Northwestern University, supports familial searching as a way to find the actual perpetrator after a wrongful conviction.

Law enforcement, including Fitzpatrick, cast familial searching skeptics as naysayers who have always opposed DNA initiatives. Previous battles include the creation of the criminal database in 1996 and its expansion in 2012 to nearly all convicts of crime in New York.

Each step has caused some invasion of privacy and some disproportionate effect on poor, minority communities.

In 2010, the state allowed DNA labs to alert authorities if they stumbled across a near-match in the system. That's called a fortuitous partial match. But that has proven to be very infrequent, Fitzpatrick said. Authorities could not go in and look for near-matches.

Opponents want familial searching to be voted on in Albany. But the forensic science commission - that includes Fitzpatrick - is expected to make the final ruling. A DNA subcommittee drafted the proposal that will be discussed at the commission's meeting Wednesday.

©2017 Syracuse Media Group, N.Y. Distributed by Tribune Content Agency, LLC.

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