Familial searching of DNA databases is a technique that has broken open cold cases, and caught infamous offenders who had gone undetected for decades through traditional means. When investigators have a killer or rapist’s DNA, but the offender is not in any of the genetic databases, their family members in CODIS for unrelated crimes can be the crucial lead that detectives need to home in on a perpetrator.
After a handful of headline-grabbing breakthroughs over the last decade, a growing number of states have used partial DNA clues from databases to assist criminal investigations, according to a report released last fall. One of the latest was New York, whose Commissions on Forensic Science adopted regulations allowing the use of “FS” late last year.
Now a civil rights group and a prominent law firm have jointly filed a lawsuit challenging the use of FS in New York, according to an announcement made Friday.
The Legal Aid Society and the firm Gibson Dunn contend the Commission and the New York Department of Criminal Justice Services exceeded their authority in approving the use of the DNA searched.
Instead, the state legislature should make the decision whether to allow investigators to use FS analysis in New York, said David Loftis, head of the Post-Conviction and Forensic Litigation Unit of the Society.
“Moreover, we have serious constitutional, privacy and civil rights concerns with familial searching and how the technique will disproportionately impact our clients and communities of color,” said Loftis.
The Society and other critics referred to FS as “genetic stop and frisk,” referring to the policy of stopping, questioning and sometimes searching pedestrians in parts of New York City, which has been significantly scaled back over the last few years after heightened scrutiny.
Familial searching, also known as FDS or FS, involves an active and deliberate searching of databases using specialized software and algorithms to find close relatives. This kind of search is still not permissible at the national database level, as per FBI policy. Partial matches appear when CODIS is searched with less stringent parameters, and possible relatives appear from multiple common markers. Lineage testing includes Y-STR analysis (paternally linked) and mitochondrial (maternally linked) assessments.
Forty labs in 24 states use the partial matches, which are allowed at the national level, according to the series of papers last fall produced by the ICF Consulting firm, at the behest of the federal Office of Justice Programs. Their report concludes 11 states have used FS, in addition to the two dozen using partial matches.
The New York State push for FS began in earnest after the brutal death of Karina Vetrano, a jogger attacked and beaten to death on a Queens beach in August 2016. The victim’s family and other advocates pushed for the use of FS to find the attacker—but it was traditional detective work that found the accused killer some six months later.
FS has led to breakthroughs in some major unsolved cases. Arguably the biggest was the arrest of the California serial killer known as the Grim Sleeper. Lonnie Franklin Jr., 63, was found guilty in 2016 of killing nine women and a teenage girl over a 22-year period. He was sentenced to death and now awaits execution.
Police detectives found him in 2010 when they ran a familial search—and found Franklin’s son, who was part of the DNA database for an unrelated incident. Follow-up investigative work confirmed Franklin as a Sleeper suspect, leading to detectives obtaining a sample of his DNA from an eating utensil.
California had vigorous debate over the use of FS when it was first used. But the Sleeper arrest, and other successes, have by most accounts satisfied some of the critics. Marguerite Rizzo, the deputy district attorney in Los Angeles who worked the DNA parts of the case against Franklin, told Forensic Magazine in 2016 that California carefully set up their familial searching policies.
“Our program appears to be so tightly controlled, that we’re taking every step to guarantee the correct person will be identified and arrested,” said Rizzo. “We don’t take any of this lightly. We want everyone’s privacy rights to be respected, and no shortcuts to be taken.”
