A state commission voted this morning to adopt a controversial policy allowing police to perform familial DNA searches in certain criminal cases.
The 9-2 vote by the state Commission on Forensic Science lets cops investigating cases that pose a public safety threat—including murders, rapes, and arsons—to broaden DNA database searches to include close, rather than exact DNA matches. The technique is intended to show investigators close family members of the person whose DNA they have—a father or a son, say—in order to guide the investigation. Much of the state's database consists of samples obtained from people convicted of crimes, including offenses such as trespassing.
The governor-appointed commission's approval came with the strong backing of New York City prosecutors, as well as the father of murdered Howard Beach jogger Karina Vetrano. Phil Vetrano became a vocal supporter of familial testing when the DNA retrieved from his daughter's body failed to produce a match and the trail in the search for the killer seemed to go cold. The technique ultimately wasn't used, and family members of the suspect who was arrested in the case seem not to have criminal records, meaning the technique wouldn't have helped find him.
Still, Phil Vetrano continues to support the policy. He hailed its passage today, writing on GoFundMe, "Praise God, yes it's official. Karina's policy ( it's not a law ) has just passed the NYS DCJS in a 9-2 vote[...]Many families will benefit and many criminals will suffer. I thank all of you for your support. I was told back in November that I was waisting my time, I was told to forget it , that it would never happen. Well fuck them now..."
The support was not universal, though. Ahead of the vote, science Commissioner Marvin Schechter accused his colleagues in a letter of violating the state Open Meetings Law by meeting individually and in groups of two and three to come up with the policy, after a public hearing. He criticized the panel further for omitting a provision specifying that familial testing only be done when all other leads had been exhausted, which he said would limit abuse. Gina Bianchi, a lawyer for the Division of Criminal Justice, wrote in response that because the commission's DNA Subcommittee is comprised of seven members, four or more would have had to meet to break the meeting law.
Defense attorneys and civil liberties advocates also vociferously denounced the policy. One advocate noted that low-income people of color are disproportionately targeted for low-level enforcement, and said that the new searches would cast new suspicion on those same people through false positives and family ties, making familial testing a sort of "genetic stop-and-frisk." Following the vote, lawyers with the Legal Aid Society said that familial testing should be the subject of legislative debate, not implemented by an unelected panel.
"This whole body was created for scientific oversight of labs, which is in theory a good thing," said Allison Lewis, an attorney with Legal Aid's DNA Unit. "They shouldn't be in charge of passing policy that has effects on civil liberties and people's basic genetic privacy."
The state's existing policy requires that district attorney's offices and police apply jointly for DNA database searches, that their applications be reviewed by the state Division of Criminal Justice Services, and that they report the outcome of the investigation to the state agency. The new policy calls for more stringent requirements on familial DNA searches. Under the regulations, familial search requests must be approved by the state police, the Division of Criminal Justice Services [DCJS], the local district attorney's office, and the local law enforcement agency, and the search results must be evaluated by the state police forensics center before being provided to the requesting police department.
These protections don't do enough to keep police from misusing the lists of names generated by the new genetic searches, Lewis argued.
"This first level of doing familial searching is a genetic look. And then the information of the relatives is handed over to law enforcement, and then there's absolutely no guidance as to what they can and can't do," she said. She continued, "It's this really invasive sort of secret government surveillance, that we may not even see, to the point where they could knock on your door, knock on your neighbor's door, reveal that actually you fathered the boy downstairs, reveal all sorts of private things about the structure of your family."
DCJS spokeswoman Janine Kava stressed that the method was the subject of a public hearing in February, and that the circumstances where it can be used under the new policy are narrowly defined. She also emphasized that the policy requires that law enforcement agencies be trained on how to handle search results. The training is supposed to include an explanation of the state law that makes it a felony to disclose DNA records outside of specific court mechanisms.
NYPD Chief of Detectives Robert Boyce told reporters today that the department has already identified about a dozen cases that it wants to use familial testing for.
"We think it has been a great day for justice this morning," he said. "We are able to go back and take those new leads on cases that are open and we are still working."
The department's press office declined to explain how it plans to handle the records.
Eleven states already allow familial DNA searches, and they have been used to solve cold-case rapes and murders. Lewis acknowledged that the technology has helped convict people of "very serious, horrendous crimes. But what about the thousands of other people who've been now investigated and looked at and suspected and followed?"
The new policy, Kava said in an emailed statement, "will provide law enforcement with a proven scientific tool to help investigate and solve serious crimes, obtain justice for victims and exonerate the innocent without compromising individual protections."
The rules will soon go up for public comment, and Kava expects them to go into effect early this fall.
With Emma Whitford