Familial DNA Searching: Issues and Answers

Moderator: Kristina Rose, Deputy Director, National Institute of Justice

Speakers

• Stephen Mercer, Chief Attorney, Forensics Division, Office of the Public Defender, Baltimore, Maryland
• Mitch Morrissey, District Attorney, Denver District Attorney's Office
• Steven R. Siegel, Director of Program Development, Denver District Attorney's Office

Kristina Rose: Welcome, everyone. We certainly did not expect to have so many people in this panel, the very last panel of the last day of the conference. We were wondering how we were going to be able to talk people into coming. This is wonderful. So thanks to all of you for being here.

We have requested more chairs. We don’t know how many they’ll give us because of the fire code restrictions, so we’ll bring in as many as we can.

My name is Kristina Rose. I’m the Deputy Director at the National institute of Justice, and I am lucky enough to have oversight over the Office of Investigative and Forensic Sciences and work very closely with its director, Mike Sheppo, who some of you may know.

Now I’m not a subject matter expert in forensics, but probably like many of you, I have a very, very strong interest in the research and the policy issues, especially in terms of the new advances in the field and learning more about the advances in terms of using the power of DNA to both solve crimes and exonerate innocent folks. Now you may have noticed in looking at who we have presenting here today that we don’t have a researcher on the panel. Now some of the more scientific aspects around familial searching were discussed in a panel earlier in the week by some of our forensic scien[tists] . So what I would like to do with this panel because there’s not a lot of research, a lot of research evidence — as we heard the attorney general and the assistant attorney general talking about — to provide the scientific underpinnings in terms of “Does this work? What is the impact of familial searching?” We don’t have a lot of that, so I’d like to use this panel as an opportunity to think about the research questions, to help inform us, to help inform our research agenda around this particular issue. We often, before we have research on a particular criminal justice topic, we end up relying so much on anecdotal evidence, and it’s not enough. It’s not good enough anymore. So, it’s very, very important to us to develop strong evidence for different approaches that the criminal justice system takes part in.

Now — I’ll just come out and say it — this is a controversial issue. We have folks here that are going to present both sides of the issue. And for the record, I want to say that NIJ does not have a particular position, but our job here is to present to you both the benefits of this type of approach as well as the concerns with this practice. I’d like to just mention a couple of the different research questions that we have been thinking about that I’d like you to think about as you listen to these presentations. So for example: What is the scope of the impact of a policy change to using familial searching? And how are law enforcement and crime labs poised to absorb the investigations that result from this kind of searching? And beyond the anecdotal information we have on familial searching, how successful is it really? For example, what is the cost-benefit analysis? And I think in this particular case, that’s a very important question to be contemplating. What about the structure of families where there is no bio logical link — families that are formed by fostering or adoption or other means? And when should we use this kind of searching? And which crimes should we be using it for? What is the impact of a familial searching policy on police and community relations? And what are the implications of the disproportionate impact on minority populations? I think that these are all important questions to consider.

So I’m going to introduce our panelists here. We have Mitch Morrissey who is the District Attorney in Denver, Colorado. We have Steve Siegel who works with Mitch, and they are going to be co-presenting. Steve is the Director of the Special Programs Unit at the Denver DA’s office. And we’re very pleased to have Steve Mercer with us. He is the Chief Attorney of the Forensics Division at the Maryland Office of the Public Defender. And they have presented before; they are used to presenting together. But I would say, before I turn it over to Mitch to get us started, is that because this is a very controversial issue and because the discussions around this issue can get quite heated, I would like to ask the audience members, because we will be leaving a significant amount of time for questions, to remain respectful of each others’ positions and, as the moderator and looking at all these faces in here looking at me, I am very cognizant of keeping things respectful of the different opinions that may be expressed here today. Jolene [Hernon]?

Jolene Hernon: [Inaudible]

Rose: Oh my goodness. Okay, that’s terrific. Thank you. Great. Thank you very much for indulging me. And I’ll turn this over to Mitch Morrissey.

Mitch Morrissey: Kris, thank you. We know how to draw a crowd, huh? I have been a prosecutor for 30 years in Denver, Colorado. I’m the elected District Attorney there. So I’m used to going first, and then Steven will follow me.

[Laughter]

That’s the way it works in court, right, Steven? But we are extremely excited to see that this topic has brought this kind of audience to the meeting. We were concerned about it being the last part of the day, that type of thing. So we appreciate you being here. We talk about DNA; obviously very important. Many of you work with DNA, and I always, when I talk to my legislature or policy — people that set policy around DNA — I always bring this up, that 90 percent of the crimes we solve with DNA: violent crimes against women in our country. The 10 percent that are left, we’re talking about primarily children. Now we’ve expanded that. We’ve changed that a little bit because now we use DNA with property crimes and those types of things. But again, this is a statistic that throughout the history of DNA’s use in forensics in the United States is a very important thing to keep in mind. So when we talk about familial searching — and those of you that are in law enforcement that have investigated a serial murder or serial rape case will understand — when we’re talking about a lead based on science, you’ll understand the kinds of leads that you have to run down as an investigator on a serial rape/serial murder case. Often times the anonymous phone call, the Crimestoppers tip, the ex-girlfriend that thinks her boyfriend looked like the composite drawing that you have. Those are the kind[s] of leads that law enforcement is used to running down in those kinds of situations. So why is familial searching important to law enforcement? It saves them time. It saves them money, and it saves lives. Steve is going to also address us, and he has a role in this presentation. Go ahead, Steve.

Steve Siegel: I’m the Steve [who] sits in between Mitch and Steven. You know, it’s important as we talk about this forensic tool and this law enforcement tool, that we don’t forget the concept that this all relates to individuals who have been through the worst experiences probably of their lives. And so, why is familial searching, if this was a room full of victim advocates and we were asking the question of who’s in favor and who’s not, it wouldn’t be a very controversial group. And the reason is is because it provides hope to crime victims. Particularly, we’re talking about cold cases where we’re looking for answers that they thought may not come, or for that matter, in the case of exonerations, where victims really want to know who committed the crime, not just that anybody is being punished. And then finally, it promotes justice. Which is really, if you do research and research has been done on what crime victims are looking for, that’s really the number one issue that comes up is they want justice in the matter that they suffered. And just to briefly review the impact that victims are facing: It begins with the physical impact of the crime, goes on to the financial and emotional aspects of the crime, which we’ll talk about a little bit later, but there’s also the social aspects of how the community views crime victims and how they view crime victims whose cases have never been solved. And then finally there’s that aspect of the spiritual part of the impact of crime on folks who are saying if this happened to me, how could my belief in God or my belief in my faith be held up? So it’s important to put all of this in the context of the human impacts on crime victims.

Morrissey: We primarily learned about familial searching in the U.K. And Steven and I have been debating for some time about the use of familial searching in the United States. And really, until California got involved in doing familial searching, there really was not a critical success in the United States where familial searching was involved. That changed about a year ago when they caught the Grim Sleeper. Now it’s important to keep in mind the Grim Sleeper was the most active serial murderer west of the Mississippi for the last 30 years.

[Audio from video being shown]

Reporter: Police in Los Angeles today announced the arrest of a retired auto mechanic they say haunted the city for a quarter century. The serial killer, who allegedly preyed on the weak … [Inaudible]

Morrissey: So remember, we’re talking about a scientifically based lead that then needs to be turned over to law enforcement for a conventional investigation to take place. Without the teamwork that was talked about by that expert from whatever channel, this isn’t going to work. So if your law enforcement is not committed to doing this in a legal, constitutional way that protects peoples’ privacy, then it’s probably not something that you should engage in, in your community. Like I said, we went to the U.K. U.K. has been doing familial searching for some period of time. This is one of the cases that they were successful in.

[Inaudible audio from video being shown]

Morrissey: And the only revision to that statement I would make is that it’s a state-by-state process. Because if you know the CODIS system, you know that this data is primarily there, and the states control it with their state statutes.

So let me explain to you — what happened was we went to the U.K. in 2006. We were lucky enough to be able to learn about their familial search policy. We came back to the United States; we were excited about it. We contacted the FBI — thought that they would be the place to do this kind of investigation. And they really weren’t interested at that point in doing it. I’m going to move through this, so don’t watch too close[ly] because you might get carsick.

And so then we started to deal with California on some issues we had with them on partial matches. I went out and met with Attorney General Jerry Brown, and Jerry Brown was at first reluctant, and then eventually California did a familial search policy and began familial searching. And their first success was the Grim Sleeper case.

But we looked to the U.K. about what their success rate was. They, to date, have done 122 serious crime investigations, and about 19 percent of the time, they have been able to catch the individual out of that; so 32 out of 122. Now some of the people they were able to identify out of the 122 that were on their list got captured through other means. So they had them on their list. They had a better success rate than that. Eventually they would have gotten around to doing a familial search. These are the individuals that they have captured. You can see: Mostly male; all white. A couple of females; they’re white. And they are — been convicted of abandoning children. Familial searching can help you do that, too. So if you have a baby that has been abandoned or killed, you can’t identify their mother or father, you can use familial searching, and they have had success with that with the two women that are up there. So they have solved 14 murders, 48 rapes, the three child abandonments that I talked about, and they have successfully exonerated individuals with DNA and gotten to the individual that left the DNA in the murders in four different occasions using familial searching.

So we go to the United States — I talked to you a little bit about this — in Denver. We were able to go to the UK and study their program, talked to the FBI, eventually worked with the California Attorney General’s Office on a familial search program there, which, basically, was independent of ours. They did their own thing. They have the third largest DNA database on the planet, so they went to work, developed their own software and had [the] success that I talked about. They have since had another success out of Santa Cruz. They caught a young man through a familial search because his father was in the database on a rape case.

So, we were there in Denver. We have a forensic lab there. We have a small, local DNA database. We decided that we would develop a software; we did that. And we would run a familial search in a research setting where we would take all our forensic unknowns in Denver and run them against all of our known samples that we had. We were successful in getting five cases where we had an over 90 percent likelihood ratio that we had the relative of the person we were interested in, in our case in our database. We ran Y-STR testing when they were males to show they had the same Y-STR type. And eventually our state policy includes the Y-STR testing for, not necessarily confirmation, but if you have an individual that your software is telling you may have a high likelihood of relatedness and they don’t have the same Y chromosome, they’re not related males. And that ends your lead. And the way we have it set up in Colorado, we never even get the name of the individual until we’re past this process.

This is one of the examples; this is an individual that was in our database. He was a known. This is from our department of corrections and any of you interested in him can go on the Internet and pull him up through the Colorado DOC site. You can see that he is a frequent flyer for us — a habitual criminal in Denver. It was a burglary case; we had an earpiece, had earwax on it, had a DNA profile. Our software told us there was a 90 percent likelihood that this was the father of the individual we were looking for. So we ran the Y-STRs — we got the confirmation they had the same Y-STR type. So we built a family tree. This was his wife. This is his family. These are his sons. And we had to eliminate his sons — well the first one was in penitentiary at the time of our burglary. He had a good alibi. The second one was in the penitentiary also at the time of our burglary. Same alibi, probably not the same cell. Third one was in the penitentiary at the time we were doing our investigation, but was not in the penitentiary at the time of our burglary, which concerned us. Because we had an all-felons statute in our state, and if you have an all-felons statute, somebody is in your penitentiary, they should be in your DNA database, and we should have gotten a CODIS hit. Remember, this is a technique you utilize when you have a DNA profile, you’ve run it in the database, and you don’t get a match. We’d run this in the database, and we didn’t get a match on somebody that was in the penitentiary — potential problem. We called them. They said, “We’ve got a backlog. We haven’t run him yet.” We said, “Can you move him up the waiting list?” They said, “Yes.” In two weeks we had a CODIS hit. We got to the person that left the earwax on the earpiece in the burglary. Now the problem was somebody else left some earwax on that earpiece. There’s a DNA profile there that we haven’t been able to identify, so we have not brought those charges. But we were successful in getting back to the individual.

So we developed the software, and it cost us about $50,000 to do that, and that included buying this very highly technical laptop that Gregg LaBerge can explain to you how it works. Because I really don’t know; I just paid the bill for it. So what we decided then [was] that we would approach our state and talk about doing familial searching in Colorado. And the only way you can do that when you’re working with the state lab is [if] they have a policy. So we first approached the Department of Public Safety and our Attorney General to talk about familial searching and creating a state policy that would allow our lab to do this work. And we were successful at that, and about a year after we had our first meeting — because lawyers got involved in this policy it took us a year to get it done — we got that policy then. We ran it by our governor, and we sat down with the leaders of our legislature and explained to them what we were doing because we didn’t want anybody taken by surprise by the fact that Colorado was going to start doing familial searching. Remember, 85 percent of your CODIS hits happen within your state. So it’s very important that if you’re going to do this, that you do it within your state. Most of the criminals in my jurisdiction stay in my jurisdiction.

We determined, based on our statute, that we didn’t need to go to the legislature and actually change our statute. We were keenly aware of the privacy issues surrounding DNA, surrounding DNA databasing and surrounding familial searching. We had studied that in the U.K. We wanted to make sure that we struck the right balance between protecting peoples’ privacy and going after violent criminals where we had a DNA profile but no match in the DNA database. In Colorado, we have an arrestee statute and a convicted felon statute, so we use[d] it in both instances. California, their familial search policy does not include their arrestees in their statute. And the one thing we don’t do — like that lady that knocked on the lady’s door in the UK — we don’t knock on peoples’ doors. In fact, our policy says the last thing you do, unless you have exigent circumstances, is contact any member of the family. In my state, if you contact a serial murderer’s family, you may very well have to extradite the serial murderer or serial rapist out of some other country or some other state. We’re not in the business of tipping people off. But also, we do this to protect individuals.

I showed you the example of just one way that we research these family trees. And that is by using the Internet and using the law enforcement information that we have. But contacting the family is just not something that we do because of a number of reasons. And this just [lies] out in general what our policy requires. The DA or the chief of police has to request it. It has to be an unsolved case where the leads have been exhausted. Has to be a full STR profile — in Colorado that’s 13 loci. Got to conduct Y-STR testing when it’s appropriate; obviously, if a woman’s involved, mitochondrial DNA could help you. And then you can see where you use those profiles. The requesting agency then does the follow-up investigation, but the name is not turned over to them until they have gone through a specific training on how to conduct these follow-up investigations without violating anybody’s rights.

So our first test with the state lab was 2,000 forensic unknowns — again this is our research — against 80,000. We have far more than 80,000 now in our database — but at the time, this is what we had in the Colorado DNA database — and we have been able to, in 10 separate cases, get back to the individual that left the DNA at the crime scene through a familial search in that database. Steve, you wanted to talk about this?

Siegel: Mitch alluded to the point that, first of all, there’s a difference for me between being passionate about this kind of work and being zealo[us] about the work where you ignore a lot of the things that make it happen the right way.

We knew that privacy and information quality was of the highest regard in doing the policy the right way. I’m fortunate to serve on the Global Justice Information Sharing Initiative, which is a part of the U.S. Department of Justice, and sit particularly on the Privacy and Information Quality Working Group. We submitted our Colorado policy to them and their experts — a multidisciplinary group including the defense bar — and asked them to go over it with a fine-toothed comb and advise us the best way that we can put privacy protections into place. We’re in the process of implementing that at the state level.

In addition, next week here in Washington, we’ll be discussing how to release a national document to advise other states around the United States about how to best protect the privacy rights and the information quality that is developed through these programs. And as we do that here and we talk about the individual needs of victims, it’s really important to talk about the multidisciplinary aspects of serving these crime victims. We talked about the impacts a little bit earlier, and in this case, we look at the unique needs of the victims and begin to serve them through this partnership, which includes the Denver Police Department, the Denver Police Department laboratory, their victim assistance unit, the Denver District Attorney’s Office, victim advocates and prosecutors and investigators and the use of community agencies to address needs and support the victims as they go through this.

One of the things that has had to be a policy that will be adjusted probably in most states across the United States is the availability of crime victim compensation, particularly for mental health. In most cases, because these are older cases, it would come outside of the window of opportunity for those support services. In this case, in the interest of justice, that’s waived so that crime victims who need that extra support of mental health services have availability.

Morrissey: So the cost is something we always get asked about. If you’re tracking California’s cost, it costs a lot more than our cost. They have a bureaucracy around their familial searching that includes a lot of people sitting down and meeting and talking and discussing things. We don’t quite do that, and it doesn’t cost us nearly as much as it costs them to do familial searching. So if you’re a small state, and you have about 20 candidates in your Y-STR pool, it costs you about $2,500 to run those 20 Y-STR tests, and then $7,000 if you had about 200 Y-STR testings. Remember, we are talking about where most of the cost is handled here. You’ve already run the crime scene profile, right? Because you wanted to run it in the national database. Your state has invested millions and millions of dollars in this state database, — in the national database. You’ve already created that; you’ve got that. You can run familial searching in the database; doesn’t matter how big it is. We could do, with our software, the national DNA database in three seconds. So it’s just a matter of you’ve paid for the DNA testing in your crime scene case. You’ve paid for this database. So we’re talking about you build a Porsche; are you going to drive it like a Pinto, or are you going to drive it like a Porsche? Familial searching helps you drive this database that our country has invested millions of dollars in the way it should; it makes it much more efficient. Now remember, the follow-up investigation is going to cost you money. But those are the guys that are running down those anonymous tips — the bad ex-girlfriend that says he looks like the composite — they’re already there; they’re already paying the overtime. So, that’s it.

I’m not going to talk to you a lot about Y-STR testing. You guys are all scientists; you should know about that — that you inherit that from your father. You son will have the same Y type, and that’s why we are able to use that as a confirmation test. When you have women, you have the mitochondrial DNA, and you can do the same thing.

This is the first conviction based on familial searching in the United States; again we had the 90 percent likelihood in this case. Y-STR match. It was a car thief that was in our database. We did his family. You can see here the sharing is in yellow. Eighteen of the 26 they shared. And our software not only looks for sharing but it also looks at how rare the things they share are in the U.S. population. We got to his brother who left blood in the car break-ins. Again, this was our research; it’s not a serial rape or murder case. But we did say we would charge anybody that we solved a case in. Car break-ins: the first familial search conviction in the United States.

These are the states that we’ve reached out to and offered our software free of charge. And I’ll tell you, it’s been extremely hard to give something away for free in this country. We reached out to these states, and you can see the kinds of individuals that they were interested in catching at the time. And I’m proud to say that Virginia took us up on our offer. And we gave them our database two days after Christmas last year, and within 90 days they had validated it. They had a protocol that was in place with a policy signed by their governor, and they started doing casework with familial searching. Exonerations, were talked about with Steve.

[Inaudible audio from video being shown]

Morrissey: So in the first 212 exonerations in this country, 81 of the individuals responsible for the DNA were in the database. That leaves you an awful lot of cold cases out there where you have the DNA that doesn’t match anybody in the database. And anybody that works with exonerations, and I have a program in my office that does just that, an exoneration is truly an exoneration when you catch the individual that is responsible for the crime. If you come from a small community, the community believes the guy got off on some kind of a technicality. But when you catch the real person and hold them responsible for the rapes and murders and the types of things we’re talking about here today, that’s truly an exoneration. Those individuals should be entitled to that, along with those families and those rape victims that are waiting for answers.

Siegel: So, quickly, to keep within the time frame, first of all, I want to say if any of you are from outside the Beltway, and you wanted to know about the power of NIJ, the Director and the Deputy Director here, and walls move.

So what about our victims? I think those of you who are in the science know about this: We have post-traumatic stress disorder on the books, and that our goal, the criminal justice goal and not just the prosecutor’s office, is to minimize these traumatic situations both at the time of the incident and in cold case situations as people live with this. And post-traumatic stress disorder is, as we have seen, through both criminal victimization and the military, something that is an epidemic in our country and causes great loss. Here’s another topic for research: Just what is the loss to our country in terms of productivity of this? This is some of the research that was done in Canada. And the point that I want to make is that closing out a case will not always get rid of that pain, but from a victim’s perspective, closing that case is always their number-one priority. And so it’s the trigger to the continuation of healing. I’ll skip that one.

[Inaudible audio from video being shown]

Morrissey: That’s one of the mothers of the victim that waited years in the Grim Sleeper situation. Now remember the Grim Sleeper has not gone to trial. So he has not been convicted of anything. But it was the leads that got them to him so he could be charged with these homicides.

Siegel: We switch to the final slide: The former director of NIJ’s wife, Susan Herman, has a book out that’s called Parallel Justice [for Victims of Crime]. And in it she speaks about the commonalities between justice from the perspective of the offender and justice from the perspective of the victim. And her premise is that there is a great deal of commonality, and that commonality is families want the right person in jail, and they want timely justice. And I think that’s what this is about. And I’ll leave that last one to Mitch.

Morrissey: So we know this is not a scientific issue. We’ve proved it works. The U.K. has proved it works; California has proved it works. Really, in the United States, it’s a question of policy. So we talked to the governors two weeks ago, their association. On Monday I talked to the attorney generals and their national association in Chicago, and I just want to thank you for being here today. And I will turn it over to Mr. Mercer at this time.

[Applause]

Stephen Mercer: Good afternoon. The message may be that Steve just gave you — he was talking about justice from the perspective of the victim — and the implication may be that as an attorney with a public defender who has represented criminals over the course of my career, persons charged with crimes, people wrongfully convicted of crimes, that I’m going to be talking about justice from the perspective of a criminal defendant. That’s not the case. I’m here to talk about justice from everyone’s perspective, and in particular your perspective.

Now, let me say this first: You know you’re at a forensics conference when the prosecutor is getting excited about earwax. And we’ve heard about some of the successes of familial searching. But understand something: There [are] more failures than successes. And, really, most of you are scientists here; most of you have a stake in your CODIS database. You value that CODIS database. It’s important to your mission. You are careful about the profiles you upload; you’re careful about the information that you derive from it. You wouldn’t want to do anything to imperil the primary mission of the CODIS database. Now, the question you have to ask yourself: “Is this tireless advocacy for the use of familial searching to solve crimes like vehicle break-ins the sort of technique that you want to employ if it can imperil the primary mission of your CODIS database?” It can. And in two states, in Maryland and D.C., the legislatures have banned familial searching because of concerns that have not really been fully discussed yet, but that I’m charged with the duty to do so. And, I share these concerns with you understanding that there may be some robust disagreement about the issues that are implicated, the larger policy issues that are implicated by the technique of familial searching. But you as stakeholders in the CODIS system have to understand that these issues are real, and that they can — the technique of familial searching — implicates important values that, if threatened, could result in a loss of support for the CODIS database.

So, my primary point is that the expansion of DNA databanks to target innocent people who are largely defined by their race and class for lifelong genetic surveillance is a terribly misguided policy that vastly overshadows the handpicked successes that you have heard about today. And, so for about 10 minutes I just want to talk with you about why familial searching of DNA databanks is a particularly corrosive form of genetic surveillance. And then, second, I have a brief PowerPoint to share with you about the experience in Maryland and D.C. that resulted in a ban, an express ban, on the technique of familial searching of DNA databanks, and how those experience[s] suggest that familial expansion may imperil your core mission of the CODIS database. We should leave plenty of time for questions after the fact.

The expansion of DNA databanks through the technique of familial searching is bad policy for three main reasons. First, the profound racial justice implications of using a technology that has the effect of putting under genetic surveillance individuals primarily defined by race and class. Second, by targeting innocent family members for genetic surveillance, familial searching undermines the original justification for DNA databanks and devalues fundamental principles central to our democracy. And third, familial searching amplifies the concern about future abuses of DNA databanks because it sets the precedent for mining of the biological samples for additional information that are linked to the DNA profile stored in the databank. Since most of you are scientists and technical, I trust [that] you understand that, but I’ll talk more about that as I go on.

But we have to first recognize that the larger context that these considerations have to be viewed in — we live in a democracy that places a high value on certain principles that we deem essential to a society that not only functions, but flourishes. The equality of individuals regardless of race or economic status; the autonomy of each person; the dignity of every individual; an individual’s right to privacy and control of their home, person, and information. A defining feature of our democracy, from its inception, has been to safeguard these values against the police power of the state. From the beginning, our democracy has recognized that the cost of catching a criminal is more than just the expense of deploying the police or some new technology; rather we must assess the impact of the particular use of a police power on the rights of every man.

Look, if all we are going to do is talk about individual cases solved through the exercise of police power, then we can just end the conversation now. Let’s scrap the fourth amendment and any reasonable expectation of privacy. Walking down the street will become like boarding an airplane; subject to a touch and feel for any reason or no reason. You home can be intruded at any time of day or night. There doesn’t have to be any reason to stop you in your car and to search it and you from bumper to bumper. Your e-mail can be read; your phone calls listened to; your financial and medical records freely accessed by the government. Your location is known at all times: the Internet sites you visit, the brick-and-mortar stores you patronize. No doubt this will solve many crimes, and at the same time exonerate many individuals because any time evidence points towards one person, it points away from another. And who would complain. After all, if you’re not doing anything wrong, what do you have to fear from police surveillance or searches and seizures that don’t require any reasonable basis? Won’t you thank the police for clearing you of a crime, eliminating you as a suspect? Won’t you be grateful to the state for protecting you, keeping your streets safe and clear of criminals? Even if it means that by seeking help from the police, say a rape victim, your DNA was put into a DNA databank, and you became a genetic informant of another family member because the local database was searched in future cases for family members.

Well, if your answer is yes to any of these questions, I have a suggestion: Move to Russia, China, Iran. Note to self, however: There’s crime in these police states, too. If your answer is no, then you appreciate on some basic, gut level that when individuals like you lack equality, autonomy and control over your home, person and information, then our democracy will never fulfill its great ideals. Face it; there are values that we place higher than just catching a bad guy or girl. This isn’t a discussion about catching the Grim Sleeper, the Stiletto Shoe Rapist, the BTK Killer or any other horrible person. It is about the larger question of how our society should go about solving the inevitable crimes that will occur to innocent victims without sacrificing the values that we cherish and deem essential to the ideals of our democracy. And we are most vulnerable to sacrificing these values when new technology mesmerizes us into thinking there is really nothing at stake.

That’s wrong when we talk about familial searching. Here’s why. The advocates of familial searching want you to believe that I am advancing the privacy interests of criminals who leave their DNA at a crime scene. Wrong. I do not advocate that a person possesses an expectation of privacy in genetic material abandoned at a crime scene. I am here to speak to you about your privacy interests that are seriously implicated by the latest advances in DNA and technology euphemistically called familial searching. In this regard, I feel on safe ground because I trust most of you are not serial-murderers-slash-forensic-scientists. I recognize that it’s nearly treason not to embrace every exciting advance in crime-fighting technology. But remember what you learned at an early age: Beware of bewilderment. Approach with caution new forms of catching criminals that involve the use of technology, like familial searching of DNA databanks that have raced ahead of the law’s ability to conceptualize the privacy interests implicated. To better understand what is at stake, consider this example: In my first face-off with Mitch, on the news magazine 60 Minutes, that catapulted him to national spokesman for familial searching of DNA databanks —

[Laughter]

Morrissey: Thank you, Stephen.

Mercer: — although I don’t think the case that caused the FBI to change their interim policy was solved through familial searching — so it catapulted him to being national spokesman, and me out of the law firm I worked at.

[Laughter]

Mercer: He compared the familial searching of DNA databanks to the police having a partial license plate number from a getaway car. The police would run down the partial plate number in the MVA databank winnow down the hits with any other identification information and then go off to investigate the smaller pool of possible suspects; a safe, relatively harmless technique that doesn’t seem to offend anyone’s sense of privacy. But it’s a false analogy to familial searching. Why? Because of two main reasons: First, DNA is not a license plate. It’s information-rich biological material. Who am I telling that to? It’s the blueprint of a person, and we learn more about it every day. And that information is not always flattering or something that you want to share at your neighborhood cocktail party. Not a day goes by without another news story about how a person’s DNA influences physical health, propensity for disease, substance abuse, mental illness, athletic ability, being straight or gay, propensity to get divorced, married, act impulsively and to even become a criminal. The list is as long as the human condition. Indeed, the New York Times ran a story earlier this week entitled “Genetic Basis for Crime: A New Look” that discussed the turnaround evident at this very conference of the role that some say genes play in crime.

It is a safe bet that in the not-too-distant future — I predict 5 to 10 years at the most — there will be a genetic profile for propensity for criminal behavior. Right or wrong? Now I think it will be wrong, but it will exist, followed by an inevitable push to conduct research of law enforcement DNA databanks to identify family members who might benefit from “intervention.” And to those of you who say, “No, there is a firewall between the DNA profile and the biological sample it is derived from,” guess again. There used to be. Now, with familial searching, in the name of advancing privacy, what is happening? We’re going back to the biological sample and mining it for additional data. What’s next?

Second, it’s a false analogy, because not everyone is in a DNA databank. Instead, the racial biases and prejudices that have permeated our criminal justice system for hundreds of years have been carried forward in the composition of the DNA databanks. Racial minorities, in particular blacks and Hispanics, make up a disproportionate amount of profiles in the database. This disparity is further amplified by adding profiles of persons who have been merely arrested and not convicted of a crime. That’s the short history of DNA databases: Constant expansion, largely along [the] lines of race and class. Now, here’s the key point, and I credit Erin Murphy with taking this analogy [of] the license plate even further in her article “Relative Doubt: Familial Searching of DNA Databanks.” Reverse this analogy if you want to have an understanding of what is at stake in terms of privacy.

What if not everyone had to have a license plate? What if we limited license plates to just those persons who committed traffic offenses and their family members, but it just so happened that the effect of whatever criteria we relied upon meant that primarily poor blacks and Hispanics had to have license plates. Would we take comfort in our zeal to combat the carnage of traffic crimes? Or would we be somewhat uncomfortable that we have placed under surveillance a group of people largely defined by race and class? Is that equality? Does that further the ideal of our democracy? Does it stigmatize an already historically disfavored group in our society?

This last point is critical. Because while the proponents of familial searching say that privacy is safeguarded or that there’s no search under the fourth amendment or that police officers don’t go knocking on doors, what is ignored is the obvious. It’s the surveillance itself that is the injury. The realization that one is a member of a group defined by race and class that is effectively in a law enforcement DNA database without having committed any crime is a powerful stigma that profoundly impacts upon one’s sense of worth and ability to participate in a democracy. Familial searching is a great threat to our democracy for these reasons, and however well-intentioned — and I don’t doubt the good faith of my opponents — but however well-intentioned the advocates for it may be, the effect of implementing such a policy is a dangerous precedent.

I was fortunate to have the opportunity to convey this message to the Maryland legislature in 2008 and the D.C. council in 2009. Both legislative bodies banned the practice of familial searching. Here’s what it means for CODIS. So I want to sort of take you into the legislative arena, because, not unlike here, you have advocates and you have opponents. And before the Maryland legislature, the governor appeared — it was a signature effort to expand the DNA database. The attorney general was present. The superintendent of the state police [was] present. These were the heavy hitters. And their basic argument [was] more is better. It’s an efficiency argument: We’ll catch more criminals. We want more DNA. Familial searching is just another way to expand the database. And of course the privacy interests are acknowledged but they’re minimized by suggesting that the privacy interest implicated is merely the taking of the DNA itself, the buckle swab, or the police knocking on someone’s door if it’s a familial search, and that unbalanced, the minimal intrusion is outweighed by the strong governmental interest of solving crime.

Well, that didn’t work insofar as the extent of the expansion that was sought. The governor wanted to have expansion to a broad set of arrestees, and that was scaled back to just a narrower class of arrestees, and in that context, the Maryland legislature banned familial searching. Why? Because there was a political base that actually galvanized around this issue. Now, you know, the history of DNA database expansion has basically been one that has been met with very little, if any, opposition or much public debate. That’s different with familial searching, and as CODIS folks you need to understand that. Because there was a political family that did form around this issue. And the reasons involved the racial justice implications, the abandonment of the original justification for including people in the law enforcement database, the fourth amendment concerns about privacy and really, frankly, the cost-benefit analysis, too. You know, what is the true benefit of this technique? What is its larger cost?

Likewise, in D.C. the following year, when law enforcement was seeking to expand the database in D.C., again I had the opportunity to explain to the D.C. council the concerns about familial searching. And again, there in D.C., the council banned the practice. The arguments presented were the same ones that were presented to Maryland. So, understand that advocacy for familial searching for the reasons that I’ve discussed and shared with you, can generate a political base against databases. And if what you’re going to be going after are property crimes and vehicle break-ins, and if the failures are going to be more than the successes, ask yourself why would you do this — in addition to the larger issues that I’ve talked to you about, in terms of a fully-functioning and flourishing democracy. I did have a clip here, but the prosecutor’s notebook won’t play it.

[Laughter]

Morrissey: It’s Apple, man.

Mercer: That’s right. I’m Mac; he’s PC.

[Laughter]

Mercer: But it was a clip of basically the answer to the racial justice implication. Because you know what the answer is? Well, let’s put everybody in the database. Let’s have a universal database. And I had this wonderful clip of the attorney general of the state of Maryland telling the Maryland legislature, “Hey look! Today we’re just concerned about putting persons arrested for felonies into the database, but you know, in the not-too-distant future, everybody’s going to be in the database, right? It’s just one expansion after another.” That’s the answer. And you know what, it doesn’t solve the racial justice issues; all it does is mask them. So it’s not a satisfactory answer at all.

Scrutiny of the future — and this is from the FBI’s own website — when we talk about where does familial searching technology take us, and does it imperil the primary mission of CODIS? But here on the FBI website, they’re talking about how the dramatic increase in the number of profiles in NDIS result in the need to re-architect the CODIS software. They want to enhance the kinship analysis — now, the initial purpose, of course, is to assist in the aid of identification of missing persons, but there’s going to be mission creep. It’s going to start off there, and then it’s going to expand beyond that. And that’s a real danger here, is that the familial searching technique, once employed, is going to again result in future mission creep and take you to a place that you never intended to be at in the beginning.

They’re using STR and MT-DNA information as well as meta-data. What does that mean? Now they’re linking up other databases with DNA databases to conduct additional investigations. And if you’re a thinking person about the control of your information in our society today, we should be concerned when the government starts linking up these large databases. And you look at the expansion of these databases — I’m preaching to the choir; you know this, these numbers, look from 2007 to 2011, an increase of over 5.5 million with arrestees and now we’re expanding this by a factor of, basically, five? If you’re including through familial searching all first-degree relatives? Is that really what you want to do with your database? You know, why is this going to cause eroding public support? Look at the concerns that have been reported as Americans’ top concerns for entering for entering the 21st century: Fear of loss of personal privacy; concern about misuse of personal information; and concern about the hallmarks of fair information practices, notice, consent and neutrality, which, with familial searching, don’t exist.

Also, something that has sort of gone “undiscussed” here today, but I think there’s also an awakening in the public consciousness to this DNA dollars and cents, concern that part of the expansion is being driven by some corporate interests that really have a big financial stake in DNA collection policies. Buy stock in ABI. Where should we go with this? Go back to the beginning. Go back to 1992, NRC 1, National Research Council 1. They recognized at the dawn of the forensic DNA era the threat of familial searching to DNA databases. And you know, they recommended “don’t do it.” Limit it through the software. Which is why CODIS is not a good tool for familial searching. And limit it by statutory guarantees of privacy. Maryland and D.C. have done just that. And other states can follow if this unfettered expansion to familial searching continues to be embraced. Thank you.

[Applause]

Rose: Stephen, Steve and Mitch, you did a terrific job of presenting the issues on both sides, and before we go to our question-and-answer period, two things real quick. I do want to recognize my colleague here in the audience, in the front row, Chuck Heurich, who I forgot to introduce at the beginning. He actually — there he is — he is my co-moderator, but we needed to make some extra room at the table, so he graciously sat in the front row. And he really is a subject matter expert on a lot of these issues, so I’m very grateful to have him here with us. And the second thing is, because the crime and genetics issue was raised, I wanted to let you know that because of the article that was in the New York Times on Monday around crime and genetics, did talk about this conference and our NIJ Director John Laub was quoted in that article. And he will be on the Diane Rehm Show, and there he is —

John Laub: Maybe not.

Rose: Oh, maybe not.

Laub: [Inaudible]

[Laughter]

Rose: Ok, well there was interest by the Diane Rehm Show in addressing this topic, and whether John appears on the show or not, she may be covering that, because we know it’s certainly an issue that is of great interest in this country. So I hope that you were thinking about some of the research questions that I mentioned at the very beginning of this panel as you were listening to the discussions. But why don’t we go ahead and open it up to questions right now. And I don’t think we have microphones here, so if you do have a question if you could speak very loudly. Dr. Laub?

Laub: [Inaudible]

Mercer: Well, I appreciate your comments, but I think they’re off base. To equate a racial disparity with gender disparity, I think misses the point.

Laub: I’m just saying there is disparity across the [Inaudible].

Mercer: Well, it’s not a distinction that I really think illuminates the issue at all. And we can have a discussion about various studies and life experiences, but the data, the government’s own data, is pretty darn clear that when you do an analysis and you control for all factors — for example, you talk about drug use. — Across all categories of drugs, the rate of white people who use drugs is much higher. But, the rate of black people who are arrested is greater than white people. So, you look at something as pedestrian as driving on I-95. There’s far more white people driving on I-95 than there are black people, but if you look at the litigation that has been ongoing in the state of Maryland, it’s quite clear that race is a factor when it comes to stops. When you talk about the detention of juveniles, again, the government’s own data, Department of Justice itself, concluded in a study, if I’m not mistaken funded by BJA or NIJ, that when you control all factors, race is a determining factor when it comes to the decision to detain or release a juvenile upon arrest. You don’t have to spend too much time in our criminal courts to understand that race is a factor. And it comes out in many different ways. Now I’ve been accused by some of raising the Boogeyman specter by talking about race because it is an emotional issue. I grant you that. And different people have different reactions to it. But we can’t move past our history. It is what it is. And we have to recognize that a law enforcement database that is comprised of a disparate number of racial minorities that’s further amplified through the technique of familial searching is really going to mean a lot to large segments of our population. And if you ignore that, you do so at your own peril.

Rose: Steve Siegel, did you want to respond to this?

Siegel: I do. A couple things. Dr. Laub, I tend to agree with where you’re going with this, and one of the things we seem to leave out in this discussion of “disproportionality” is the fact that the large majority of violent crime victims in the United States are also people of color. Forty-nine percent of the homicides in the United States were black males. So we’re missing that second part of the discussion. And I think that the socioeconomics — maybe that’s what Kris was asking for earlier, in terms of studies, future studies for NIJ — the socioeconomics and the other factors have got to be put in there when we’re talking about just blatantly laying out this idea of color and its role. And I thought there was interesting — I wrote down a quote that you talked about the impact on man of this familial searching, and in fact Mitch started talking about the fact that 90 percent of these crimes are crimes against women and children. And so I think there’s a need for balance when you’re using that kind of rhetoric about, as you call it, the Boogeyman.

Rose: Yes, ma’am.

Audience member 1: [Inaudible] I think that’s the issue, even when we talk about community involvement and sharing. Who are these communities? Another research body, another community organization again that doesn’t have a representative demographic to the communities affected that we’re talking about. [Inaudible]

Rose: Thank you for your comment. Questions? Additional questions for our panel.

Audience member 2: [Inaudible]

Mercer: Well, I think they’re both concerns. I mean, I have a concern about CODIS itself and the racial disparities that are reflected in any law enforcement database. And I think stakeholders do also. The public does. My point is that if you’re going to take a law enforcement database that already is disparate and disproportionate for a variety of reasons that reflects the history of race in our criminal justice system in this country, you’re going to further amplify that effect through familial searching, and now you’re effectively expanding the database again along the lines of race and class.

Audience Member 2: [Inaudible]

Mercer: Well, let me say this, the metric that is used for CODIS right now to gauge effectiveness I think is misleading. I mean, the investigation’s aided metric does not tell you how many cases downstream have resulted in convictions through a database match. So that is, there’s a cost-benefit analysis that has to come into play. If you’re asking me do I support DNA databases, I have argued against the taking of a DNA sample from anyone without probable cause that they have committed an offense, so I won’t shy away from that. I mean, if you want to paint me as sort of an extreme because I’m opposed to CODIS, so be it. But that’s my personal and legal position is that the taking of DNA from someone without judicial determination of probable cause that they have committed a crime is a violation of the fourth amendment. And I’ll argue that to the end of the day. But let’s not lose sight of what we’re talking about here, which is the technique of familial searching. And my message, which is that if you embrace familial searching, you’re going to be encountering not just defense attorneys, but you’re going to be encountering a political opposition because of the issues that it implicates.

Rose: Thank you, Steven. I’m going to give Mitch a chance to respond to that before he jumps over the table.

[Laughter]

Morrissey: You know, I learned something very early in my career. [It] was a senior prosecutor; he said to me, “On closing argument, you need to convince the jury that Western civilization will collapse at its very base if they don’t find the defendant guilty in this case.” Now it was car break-in, so that’s pretty hard to do. And I have to hand it to Stephen, because this is the first time I’ve ever heard him say our democracy will collapse at its very base if we do familial searching. I’ve heard all of his other arguments, and I got to tell you a couple of things there are very misleading in what he said. One, those of you who know CODIS know victims’ profiles do not go into CODIS. But he slipped that in, and it was intentional because he was reading from a script. You know that and he knows that. This is not a fourth amendment violation under any circumstances. And if it was, Stephen would cite you the cases that says that it is. Let me cite you the most liberal federal district in the United States, the ninth circuit, which is the only court that has addressed familial searching specifically. And it says it’s questionable whether the rights of the perpetrator, if ultimately identified through the use of a familial comparison, are violated. And they go on to say that the individual who was actually compared that’s in the database that has focused the investigation on the individual eventually captured is not a violation of constitutional privacy either. It’s U.S. versus Poole, but he didn’t cite that when he through around his fourth amendment violations. Now I’ve heard all these scare tactics; I’ve heard all of the words, the “genetic informant,” all of these things, “genetic surveillance,” but when you get down to the idea that what this is, is using technology that we have and have paid for in a constitutional and legal way with very strict policies, all of his arguments fall to the wayside.

Mercer: For those of you in labs, how many of you maintain victim profiles and elimination profiles and quality assurance profiles, that is of staff members, police officers, or other people that come into contact with evidence, you have a local database at your lab that has those profiles, which you cannot upload into CODIS. Am I right or wrong? The practice varies between jurisdictions. On the local level, because local labs that maintain DNA databases are not subject to CODIS regulation. And if you want to look at a case, look at Judge Titus’ opinion from the U.S. District Court in Maryland, the Davis case, which talked about precisely this situation where today’s victim, whose DNA profile was in a local crime lab database, became tomorrow’s suspect. There was also a case out of Louisiana that was reported on by the Washington Post that involved a woman who had been the victim of a rape. Her profile was developed and through an assessment of that profile, an examiner noticed a similarity to the profile in a separate, unrelated case, and they went out after the victim’s brother. So the concern about being a genetic informant is real as you continue to expand DNA databases. And if I’m not mistaken, and correct me if I’m wrong, I’m sure you will, Mitch, but in your beta testing of your familial software, you used a DNA database that included quality assurance profiles of your lab workers and in fact hit upon one lab worker whose brother was implicated in a sexual assault. Accurate or inaccurate?

Morrissey: In our research, yes. But there is not a state policy in the United States that would allow you to do any kind of searching like that. The important thing to realize here is that familial searching can be used on any type of DNA database no matter how big; no matter how small. What we are asking the states that we’re dealing with is to do this in a very controlled setting where they have set down a policy that is based on the constitutionality and the legality of that. Maryland prohibits it. Stephen was successful. So until they change their statute, we are not advising Maryland that they should violate the law and do any familial searching.

Mercer: So just in terms of the accusation, the allegation that I had made a misstatement in my speech — that’s not correct.

Morrissey: But you said victims are in CODIS, and victims are not in CODIS.

Mercer: No, I did not say that victims were in CODIS.

Rose: Are there any other questions from the audience?

[Laughter]

Rose: Yes, sir. Stand up, please. Thank you.

Audience Member 3: [Inaudible]

Mercer: I mean, there’s two questions there, and I think the first part of that question really goes to the core of the issue about “What is the privacy interest that is implicated?” And the point that I made in my discussion is that it is the surveillance itself that is the injury. It’s the surveillance itself that creates a stigma on a group that’s largely defined by race and class. And to have that stigma of being that group — if you think back to Dr. Seuss, has the blue dot or doesn’t have the blue dot — it’s that stigma. It’s the surveillance itself that causes the injury. That’s the point. It’s not — and this is something that the prosecution is always saying — you know, how is the family member injured? They’re not injured — are they injured when the DNA sample is taken from the convicted offender? Are they injured when there is a computer search? Are they only injured if the police knock down their door and arrest them? That misses the point. And I think this is something that, as a group of scientists, you have to be very sensitive to. Because this idea that a group is being targeted for surveillance really concerns that group. It may not concern you so much, but it concerns that group. And if that group is part of the political process, when it comes time to gain support for your CODIS database, or money for your CODIS database, you may be caught off guard.

Audience Member 3: [Inaudible]

Mercer: Is there intrinsic value to privacy? I mean, this is part of a much larger discussion about surveillance in our post-9/11 world.

Audience Member 3: [Inaudible]

Mercer: Yeah, it’s the stigma. It’s the surveillance that’s the injury. It’s the stigma that it causes when an individual is in a position where they are aware that, in effect, their DNA is in a law enforcement database. Now, maybe that doesn’t concern you, but it concerns other people that are not criminals, but are innocent people who are good, upstanding, law-abiding citizens who don’t see why their DNA should be in a law enforcement database when they’ve never done anything wrong. It really goes to the core of the values that —

Audience Member 3: [Inaudible]

Mercer: Look, if you want to walk down the street and be subject to a stop-and-frisk for no reason at all because it’s going to catch more criminals, all power to you. But that’s not the United States.

Rose: We have time for probably--I would say maybe one more question. Is there somebody that has to ask?

Audience member 4: [Inaudible]

Rose: It sounds like the question is, “Are people aware that if they commit a crime or are convicted of a crime that their profile could be put into CODIS?” You got to speak up loud[ly].

Audience member 4: [Inaudible]

Rose: “That if you commit a crime, your profile is going to go in, and basically that’s the right that you have given up.”

Mercer: What about family members though? I mean that’s the whole point of this discussion is that you stop someone on the street and say, “Hey, you know you could be in a law enforcement database because someone in your family committed a crime?” You know, we can slice this any way. In effect, your profile is in CODIS where they can use the software to identify you as a family member. That’s the effect of it.

[Inaudible]

Rose: Ok, we don’t want people talking over each other. Mitch, did you have something you wanted to say?

Morrissey: Well, I mean —

Rose: Is the answer always yes to that question?

[Laughter]

Morrissey: Yes, it is. You know, you can use all the scare tactics about this, but if you sit down and you read about it, and you do it in a fair, reasonable way with people that consider privacy, consider the constitution, the fourth amendment, this can be done in a very safe way for all the concerns that Stephen raises. And don’t let him scare you that you’re going to lose your CODIS database if you do familial searching. Because we all know if a court finds that something happened that was unconstitutional, they throw out the case, and you stop that procedure. That has not happened with familial searching in the United States, and I cited you the case where that’s taken place. But the world is not going to end if we do familial searching. CODIS is not going to stop existing if we do familial searching. It does not violate the fourth amendment, and we are proponents of that because we know those things. We’re not in the business of catching criminals that are raping and hurting people in our community only to go to court and find out what we did was unconstitutional. That’s all I have.

Rose: And Mitch, because I gave you the first word, Stephen Mercer I’m going to let you have the last word here. But you’ve got about thirty seconds.

Mercer: The concerns that I raise are real. They may not be real to my adversary, but they are real. And when you expand a database that already consists of a disproportionate number of profiles from racial minorities, you risk imperiling the primary purpose and mission of your database. Be careful whether you embrace this new technology because you will get pushback on it.

Rose: I want to thank all of our panelists. I want to thank Stephen Mercer, Steve Siegel, Mitch Morrissey. They provided incredibly interesting information and thank you for being such good sports with us here today. It was very informative. Thank you.

[Applause]