Times Union: DNA scrutiny of relatives faces legal challenge

The search for the killer of a 30-year-old woman who was raped and strangled while jogging in Queens in August 2016 had stalled.

Police had found traces of the killer’s DNA on the battered body of Karina Vetrano, but it did not match any of the more than 600,000 DNA profiles on file in the state’s database -- samples taken from evidence collected of unsolved crimes and also people convicted of offenses ranging from misdemeanors to murder.

On Dec. 7, 2016, Queens County District Attorney Richard A. Brown wrote a letter to the chairman of New York’s Commission on Forensic Science, imploring the commission to authorize the use of a technique called “familial searching,” in which the state’s DNA database would be searched for profiles of potential relatives of the unknown suspect.

“The killer remains at large, the public remains in danger, and the suffering of the victim’s family is amplified by law enforcement’s inability to yet solve this most awful crime,” Brown wrote. “I believe the familial searching can be a powerful investigative tool in this case.”

The search technique, approved in a dozen states but, at the time of Brown’s request, not New York, was not used and played no role in the February 2017 arrest of 22-year-old Chanel Lewis of Brooklyn, who was charged with Vetrano’s murder. His trial ended with a hung jury — despite what prosecutors claimed was irrefutable DNA evidence — and he remains jailed awaiting a retrial. But Brown’s request set in motion an effort by the state forensic science commission that would lead it to implement a controversial new regulation allowing familial DNA searches.

The Legal Aid Society, which represented Lewis at his first trial, is waging a legal fight to halt the state’s use of familial searches. The society argues that the commission had no authority to pass the regulation and that such searches will lead to a disproportionate number of minorities being subjected to police encounters, simply because their DNA may be similar to someone in the databank’s.

A state Supreme Court justice in New York City heard oral arguments last week in a case filed in February by the Legal Aid Society on behalf of two downstate men who have never been arrested but whose relatives have been convicted of crimes that resulted in their DNA being added to the databank.

The lawsuit asserts that the Legislature has never ceded its control of the DNA databank, which was created by statute in 1994, and has rejected proposed bills to authorize familial DNA searches, a technique that has been legalized in states such as California and Colorado.

People convicted of certain crimes in New York are required to provide a sample of their DNA, which is then added to the state’s massive databank. When it was first created, the Legislature mandated only that those convicted of murder, assault or sexual offenses were required to provide their DNA. But through the years the Legislature has tweaked the statute and now samples must be provided even by those convicted of misdemeanor offenses.

The familial searches entail comparing the DNA of an unknown suspect — obtained from evidence such as a strand of hair or bodily fluids — to the 681,001 DNA samples currently in the databank. Investigators and law enforcement authorities say the hope is that an unknown suspect’s DNA may be linked to a relative whose identity is known, providing a lead that might otherwise never surface.

The legal challenge questions whether the privacy rights of New Yorkers are being violated, and challenges whether three executive branch agencies — the Division of Criminal Justice Services, the state Commission on Forensic Science and the commission’s DNA subcommittee — had the authority to create the regulation allowing familial DNA searches.

The lawsuit notes the familial search criteria set up by the regulation, which went into effect in October 2017, gave DCJS acting Commissioner Michael C. Green the sole authority to approve applications from police agencies to conduct familial DNA searches involving unsolved crimes.

The system “fails to ensure the most basic protections against abuse,” the lawsuit notes, adding that there is no judicial review of the process, no avenue for someone targeted to object to the DNA search and no notification to the public.

“Familial searching invites a broad new class of individuals to experience encounters with police — based solely on their biological relationship to individuals convicted of certain crimes,” the lawsuit states. “This new class of targets may be stopped and interrogated by police ... (and) subjected to scrutiny by law enforcement for no other reason than the possibility that their genes are similar to those of a data-banked individual.”

The legal petition outlines how the state Legislature — which had failed repeatedly to pass legislation that would have granted the executive agencies the authority to authorize familial searches — was debating the very issue last year when DCJS and the forensic science commission took the extraordinary step of authorizing the regulation on their own.

At a forensic science commission meeting last week, state officials reported that Green, a former Monroe County district attorney and chairman of the forensic science commission, has reviewed 23 requests from law enforcement agencies seeking to use the familial DNA searches. Twelve were approved by Green, seven remain in the review stage, and four were rejected.

Details about the specific cases, including which police agencies requested the searches, were not provided to the commission at its public meeting.

“It’s unfair, unconstitutional and it violates equal protection,” said Terri S. Rosenblatt, an attorney in the Legal Aid Society’s DNA unit. “This is a job for the people who are accountable to the voters, and the people who made these rules are not accountable to the voters.”

The 14 members of the Commission on Forensic Science include a judge and two criminal defense attorneys, but it has multiple crime laboratory scientists and law enforcement officials, including Green, State Police Superintendent George P. Beach II, and district attorneys William Fitzpatrick of Onondaga County and Scott McNamara of Oneida County.

Green, who has been DCJS’ acting commissioner since 2012, declined to be interviewed for this story.

In a court filing in response to the lawsuit, Green said that in 2010 the forensic science commission, DNA subcommittee and DCJS approved a regulation allowing scientists to explore “partial matches,” which occur “inadvertently” and indicate that a suspect may be a close blood relative of someone whose DNA is on file in the databank.

Since then, he said, there have been 92 instances in which a potential partial match was identified. In one of those cases, Green said, a partial match to a man whose DNA was in the system for a low-level offense led detectives to focus on and eventually arrest his brother, John Bittrolff, 52, who was convicted last year of murdering two women on Long Island in the 1990s.

Green’s court filing failed to disclose that there had been serious internal problems in the handling of that case. A DNA “hit coordinator” for DCJS had falsified a document certifying the laboratory results associated with the high-profile case, according to the agency’s former forensic science director and an inspector general’s report obtained by the Times Union. The document was later corrected and, according to law enforcement, disclosed to Bittrolff’s attorney, who did not respond to a request for comment.

Both DCJS and the office of Inspector General Catherine Leahy Scott, which investigated the allegation, kept the matter quiet and the female employee was suspended and subsequently retired.

Brian J. Gestring, the former forensic science director at DCJS, wrote a letter to the Commission on Forensic Science earlier this year and accused Green of lying to the panel about the agency’s work in that case and others during a March meeting.

Gestring, who was fired this year after an allegation that he made inappropriate comments to female colleagues, said Green had wrongly informed the committee that DCJS does not get involved in DNA identifications. In fact, Gestring said, DCJS employees are responsible for making the identifications based on the information provided by crime labs.

He said that Green also concealed from the committee that “he was aware of three catastrophic DNA hit-notification failures directly attributable to DCJS within the last year. In all three cases, the wrong individual’s name was reported on a DNA hit notification.”

Green, in a court document in the familial DNA lawsuit, defended the DCJS program and said that familial searching is simply a “statistical evaluation of near-matches to identify the potential relatives to the donor of the forensic sample.”

Fitzpatrick, the Onondaga County district attorney, also defended the commission’s decision to enact the familial DNA-search regulation, saying it would be justified even if only a single rape or homicide is solved. He said the application process that Green oversees is rigorous, and assures that the familial searches would only be used to solve homicides or other violent felony offenses.

“Assuming you jump through all the hoops and DCJS approves the request, then (police) have to undergo a several-hour training program, so that you don’t have cops banging down the door and grabbing toothbrushes and combs from somebody’s house who might be totally innocent,” Fitzpatrick said. “I feel very comfortable about the efficacy and legality of what we do.”

Rosenblatt asked why law enforcement officials, and all other New Yorkers, don’t put their DNA in the databank.

“We don’t because we value our privacy,” she said. “And particularly as New Yorkers, we have traditionally had a very protective view of our privacy.”

Rosenblatt said it’s troubling that there is no judicial oversight of the searches as there is for search warrants. Also, the regulation allows police agencies to apply for familial searches not only for crimes such as murder and sexual assault but also for any case that concerns “a significant public safety threat.”

She said that final clause allows Green and other law enforcement officials to subjectively determine what that means: “What if someone is sending anonymous complaint letters to the mayor? Is that a public safety threat?”

Also, “There has to be a showing that reasonable investigative efforts have been made, but that’s not defined,” Rosenblatt said. “They could have said ‘once all law enforcement efforts have been exhausted.’”