Attorney Bicka Barlow is from the Law Office of Bicka Barlow. In 2004, Ms. Barlow became the DNA attorney...
Bob Ambrogi is a lawyer, legal journalist, and the publisher and editor-in-chief of LexBlog.com. A former co-host of Lawyer...
J. Craig Williams is admitted to practice law in Iowa, California, Massachusetts, and Washington. Before attending law school, his...
Disclaimer: This episode was originally aired on May 17, 2018.
After decades of searching, Joseph James DeAngelo, whom authorities suspect is the so-called Golden State Killer or East Area Rapist, was arrested and suspected of committing a dozen murders and 50 rapes from 1976 to 1984. Prosecutors and law enforcement praised new DNA techniques used to catch the suspect, while defense attorneys and DNA experts voiced concern over the privacy and ethical concerns over customer data.
On Lawyer 2 Lawyer, hosts Bob Ambrogi and Craig Williams join attorney Bicka Barlow from the Law Office of Bicka Barlow, and Alameda County District Attorney Nancy O’Malley, as they take a look at the Golden State Killer. They discuss the latest DNA techniques used in cases, the controversy over tracking down alleged perpetrators through genealogy websites, law enforcement’s vantage point, the investigation process, and privacy and ethical concerns over data.
Special thanks to our sponsors, Clio.
Lawyer 2 Lawyer – Law News and Legal Topics
The Golden State Killer, Genealogical Sites & Privacy (Rebroadcast)
Hello listeners, the episode you’re about to hear originally aired May 17, 2018 and we’re replaying it because it’s about the Golden State killer and how law enforcement is using a new technique called Genetic Genealogy to help break open cold cases. So stay tuned. We hope you enjoy the episode.
Bicka Barlow: How do you balance law enforcements need and people’s interest in investigating crime while protecting people’s privacy?
Nancy O’Malley: How do we educate people about making the decision whether they’re going to put their personal business into a database or to a platform that can be accessed by pretty much anybody?
Intro: Welcome to the award-winning podcast Lawyer 2 Lawyer with J. Craig Williams and Robert Ambrogi, bringing you the latest legal news and observations with the leading experts in the legal profession. You are listening to Legal Talk Network.
Bob Ambrogi: And this is Bob Ambrogi coming to you from Massachusetts where I write a blog called LawSites. I also host another Legal Talk Network Program called Law Technology Now.
Bob Ambrogi: After decades of searching and investigations, law enforcement authorities in California have arrested Joseph James DeAngelo, who they suspect of committing a dozen murders and 50 rapes from 1976 to 1984. Information from an online genealogical site alongside a lengthy investigation led to his arrest.
Prosecutors and law enforcement praised new DNA techniques used to catch the suspect, while defense attorneys, DNA experts, and even privacy experts have voiced concern over the privacy and ethical concerns involved in the way the DNA data base was used in this case.
On May 3rd, a Sacramento judge ruled that authorities can in fact collect DNA fingerprints and body photos of the alleged Golden State Killer.
Bob Ambrogi: To help us do that today, we have two guests joining us. First of all I’d like to welcome to the program attorney Bicka Barlow from Law Office of Bicka Barlow.
In 2004, Ms. Barlow became the DNA attorney for the San Francisco Public Defender’s Office where she acted as an in-house expert consulting with attorneys on cases involving DNA evidence and acting as co-counsel primarily on homicide and serious felony cases. Now in her own private practice, attorney Barlow specializes in cases involving forensic DNA evidence throughout the United States. Attorney Bicka Barlow, welcome to Lawyer 2 Lawyer.
Bicka Barlow: Thanks for having me.
While attending University and volunteering for the Central Contra Costa County Rape Crisis Center in 1970s, she took calls from victims of the Golden State Killer, also known as the East Area rapist. Welcome to the show District Attorney Nancy O’Malley.
Nancy O’Malley: Thank you very much.
Nancy O’Malley: Well back in the ‘70s, actually in Berkeley, the first rape crisis center which is a grassroots effort began, it was called BAWAR; Bay Area Women Against Rape. And it still is called that, and is still in existence. But what it did was it began the creation of rape crisis centers that were primarily led by volunteers.
And while I was in college, I became a volunteer at a rape crisis center in Contra Costa County, it was one of the first in the state. The way the rape crisis centers worked back then is that and still do is that they have volunteers who would take phone calls of somebody, who around a sexual assault experience, whether it was a family member or someone wanting to call the police or a past experience.
And then when a sexual assault crime did occur, somebody, the police or the hospital or the individual would call the hotline, and an advocate like myself would actually go to the hospital with the victim, and be there while the hospital did an examination, including a forensic examination, which in those days we call the rape kit, with completed rape kit, we now call them sexual assault kit.
When I was one of the advocates, a volunteer advocate, I did take phone calls from women who had been attacked by the East Area Rapist, and a lot of people who fought the East Area Rapist was in their neighborhood or around their house. And I accompanied one of the victim survivors to the hospital when she had her exam done.
Nancy O’Malley: When we called him the East Area Rapist up in Northern California, he had broke into houses, sexually assaulted women in Sacramento area, and then he started showing up in Contra Costa County.
There was one sexual assault crime that happened in Alameda County in the city of Fremont, there were eight in Contra Costa County, and there were several in Sacramento. I think there was one — there were few down in San Jose which is just going from east to starting south.
He had a unique MO, modus operandi as we all know. One of them is that he would sometimes it was not really clear how he got in the house so there was a question of whether he would go in during the day when people had their house unlocked, and stand in a closet or hide in the closet or someplace where he wouldn’t be detected.
Sometimes, he came in two sliding glass doors or through open windows. What was unique is that if there were oftentimes more than this victim in the house, a husband or partner or children, and he would use plates to stack on the second person with the threat that if he heard the plates move or if he heard them fall then he would kill the victim. He would take the victim to another room, sexually assault them repeatedly, sometimes he would rummage the house, and steal money or steal something and then he was gone.
And some of the times, he had his identity concealed though not always, it was always in the dark, and there’s always a way that he was able to not allow himself to be completely identified. And generally speaking, the crimes that happened at least in Contra Costa and Alameda County occurred more often on Friday or Saturday night, sometimes on a Sunday. But more close to the weekend, most of them were closer on the weekend.
So he had a very peculiar MO and a peculiar pattern to what he was doing, and how he was doing it. Unbeknownst to what was happening up in Northern California that he was also in Southern California and perhaps beginning in Visalia or somewhere in the central part of the state, where there’s at least one murder, sexual assault murder that he may be linked to, still working on that.
But in other parts of Southern California, Orange County, Santa Barbara County, Ventura County, and there were women who are being that we know of 12 women who were raped and murdered. They did not have a suspect in those cases, we didn’t have a suspect in ours.
Once we started testing forensic sexual assault, the sexual assault kits that I talked about, some of them were tested 30 years after the crime happened because in this state we had and in this country we had a big issue with rape kits or sexual assault kits not being tested. And what we discovered and I founded in my own county and then worked across the country with others, was that these sexual assault kits were put in an evidence room for the police and they were never taken out and never tested.
Once that effort started happening and I’ve written legislation around it and we started testing these sexual assault kits, all of a sudden the DNA profile started appearing. And it became the — what we discovered was the profiles down in Southern California matched the profiles from Northern California. And that was about a few years back.
And so once we realized that we had the same person had committed these crimes, the District Attorney from Sacramento County really took the lead on this by pulling together the different agencies that had a crime that had occurred attributed to this profile the person, we didn’t know who he was.
I was brought in, in part I had the case in Fremont but I was brought in because I was working in DNA and also my efforts to have all rape kits or sexual assault kits tested. And as soon as we started talking about the crimes, I realized wow, I know this case because I was there when it happened.
And I remember how it was for the communities being terrorized that they are afraid to leave their windows open or afraid to leave their door unlocked and it was very, it was terrorizing for about a year throughout the area where I was.
And so that taskforce started really giving focus to trying to figure out who this person was that was responsible for we believe 51 sexual assault crimes and 12 rape murders. And that’s been what this team has been working on for the last two years until they discovered his identity a couple of weeks ago.
Bicka Barlow: Well, she’s right about that. The testing methodologies have really evolved since the early ‘90s, going from technology where you would need large quantities of material like blood or semen to do the testing and get results to type of testing now which is able to detect just a handful of cells on an item or an object.
And I think that with this increase in the technology or the increase in the sensitivity of the technology, many more samples are being tested and there is an unfortunate downside to that increased sensitivity, which I think people need to be aware of which is that, as it gets more and more sensitive, the testing results in more and more samples where there are multiple people in the sample, so not just a single profile as Nancy was describing, but multiple profiles contained in a single evidentiary sample.
And the problem with that is that with older samples for instance, from unsolved crime, that the DNA has degraded and things happened so that you don’t get very good test results even with the increased sensitivity, and that’s where labs go then to testing such as the Y-STR testing which identifies male profiles versus just anyone in the sample.
Bob Ambrogi: Can I just ask Bicka, I just want — I mean part of what distinguished this case as I understand in part of what’s drawn the controversy about this case is not so much the sampling, but the way that those samples were used to search for suspects. Can you explain what was done differently in this case than what would normally be done?
Bicka Barlow: Well actually, I am relying totally on what I’m reading in the newspapers, but my understanding is that there were samples were tested in such a way that they could be used to upload to a public or semi-public genealogy database.
So it’s a database where people like any one of us, who’s interested in say your ancestry or your medical risk could put your DNA in there and look for other people who are similar to you. For instance, if you have your DNA in one of these databases like ancestry.com or I think 23andMe, those are the two big ones. Then what you get is a family tree. People who you never even knew you were related to now can reach out to you and contact you, which is why a lot of people are really interested in doing this.
And interestingly for many years when people have asked me, should they do it, I have always said no, and because of exactly what’s happening here today. I think the search itself, I mean it’s a wonderful result. It solved a crime I assume. We’ll see how the trial works out, but that needed to be solved.
But at the same time, we’re putting our privacy interests at risk by putting our DNA into these databases where we lose control of it. It’s not just the police that can access this information, it could be insurers or employers and that’s my biggest concern is the privacy rights of the individuals who are putting their DNA in there, plus, for someone say myself, if one of my relatives uploaded their profile or their data into one of these databases, then I would be exposed as well because of our relationship.
Nancy O’Malley: Well, first I think one issue or point to make is that this individual, DeAngelo’s DNA profile that law enforcement has known about for a couple of years now and so it was really — we had the profile just not who the individual was, and DeAngelo, his profile was not in any of these databases.
That’s the first thing is that it wasn’t that he was exposed to more, it was they were able to take a profile of an unknown individual who was responsible for this, and then start doing police work of looking to try to find and what they did was through these open sites, try to find some kind of a circle that he could be put in, or someone, the perpetrator could be put in.
There had been a lot of other ways that what we were trying to or they were trying to figure out who this person was. For instance, they had used People Magazine at one point that is a story, and they displayed some unique jewelry that was stolen from one of the victims and things like that.
So his profile had been around, that’s the first thing. I think the privacy issue is a legitimate issue of course, and I think that I believe that law enforcement, I can’t speak for all of them, but from my perspective I think that we do have to be careful and as what we were hearing from Bicka that if my insurance company can somehow get their hands on my profile or for somebody who is going to use it for some purpose that is not how I intended it, then I think that we have to really look at how those protections are in place.
From a law enforcement perspective that there’s the open source, and the one of the things that I do believe is that somebody can go to Utah and sit at the Mormon Temple and do their genealogy in sort of the same way just by sitting in front of a computer and putting your family tree together.
But I think that what this is doing is this elevating the conversation of how do we protect the privacy of people, even though they’re putting their DNA into a site that they don’t control and they know that other people are going to be looking at their profile or the system is going to link them to other people. How do we respect that privacy?
Bob Ambrogi: How would law enforcement normally track DNA? I mean my understanding from what I’ve read is that there is in fact a national DNA database that’s used by law enforcement officials to search for DNA, but what kind of differs here is that they went into this public open source database and my understanding from what I read is that they did so under false pretenses, in the sense that they created a false identity in order to be able to set up a profile and login to this site.
If they weren’t using the open source database, how would law enforcement normally go about the process of taking a DNA sample and look for a match?
Nancy O’Malley: Well, there are laws in many of the states that including California that if somebody is arrested for a felony crime, that a sample of their DNA is taken and then it’s profiled, and that known DNA profile goes into a database. That is controlled by law enforcement. The states have their own database, but it all feeds into the national database, which is controlled by the FBI called CODIS. And if somebody is they’re released or it turns out that that they’re not the person that that’s the suspect in the crime, then they can petition to have their DNA removed from that database.
But for those that are arrested, the profile goes into this database, the known profile. When there’s a crime scene, like in a sexual assault case or a murder case, if there is fluid that has taken that has the nucleus to identify the DNA, then that is profiled and that unknown perpetrator’s profile goes into a separate database and then those two databases are run against each other to see if there’s — the unknown person can be identified through the known population of DNA profiles.
So that’s how law enforcement does and that’s very protected. It’s extremely regulated and that’s how the law enforcement perspective is.
Bicka Barlow: I just wanted to just point out one difference between the type of searching that was done in this case, and at least as far as I know, and what law enforcement allows to the CODIS database is that essentially what we have here is like something would be called a familial search.
You’re looking for relatives and not the individual. So that raises different privacy concerns in the State of California as well as all of the states that participate in what’s called familial searching, meaning you’re looking for somebody who’s close but not the person. They have very strict requirements for doing that kind of testing that probably would not allow this type of search to be done even if somebody, the distant relative was in the database.
So that’s one big different between these two types of searches, I just want to point out.
Bob Ambrogi: And what a couple other statistics that are important to put into this whole thing is that when someone puts their personal DNA into a familial DNA website, that marker will expose potentially 300 relatives around you because the markers are similar that far away that someone could search and find you.
The other statistic that’s also important to remember is that Governor Brown and this whole of a familial DNA search in California is strictly regulated. In fact from what I’ve read, only 156 searches have been conducted so far using this technique. Nancy does that change your mind or does that bolster the law enforcement’s opinion about the viability and the lack of privacy concerns here?
Nancy O’Malley: Well I agree that and it is true that access to familial DNA is very restricted and very controlled. So I think that the dilemma and again this is all raising an issue that people really didn’t think that about, especially the general public, but they put something into a relatively public database and what are the restrictions on being able for me to be able to go search that as well, I don’t mean me as a law enforcement person but me as a as a regular person.
And for people that are on ancestry.com or 23andMe, the big ones, they report that they’ll get emails all the time saying I may be your second cousin, I may be your third cousin, we may share a relative in common and they don’t know the people either. So the real question for me that is really the discussion point that we will engage in, of course, is how do you protect the privacy, how do you balance the privacy of people that are putting their DNA profile into a system versus the ability of law enforcement to access that system.
Like for instance, we do now know that there have been subpoenas, law enforcement subpoenas to ancestry.com and 23andMe, not in this case but in other cases. And both of those commercial sites have declined to respond to those subpoenas. I am not sure that their law enforcement actually but there are subpoenas requesting certain information and they are transparent about the receiving subpoenas or requests and not complying or if they did comply putting that in their annual report.
I think that this is the place where it’s an open site, it’s open to anyone but now it’s being used for law enforcement purposes. And whether or not, there should be ever a warrant out sought in order to access an open site. I mean the law is not that clear about if it’s an open site and we have concerns that we want to have people’s privacy protected meaning we in society, I as well.
And so how do we address things like the ability of anybody to go into an open site or certainly does it change the dynamic if it’s the insurance company versus the police department or if it’s a stalker versus a legitimate search like a third cousin or something, these are questions that really have been brought to the surface that need to have conversation, we need to figure out how we’re going to reconcile them and not — I don’t know that there’s a clear answer to any of these questions but the stalkers idea versus the distant relative is not unlike the same privacy issue, how do we protect people and how do we protect people when they’ve put their DNA profile into or they’re creating their DNA profile into a public site or an open site.
Bob Ambrogi: We need to go to a break we’ll continue to talk about this in just a moment, so please stay with us and we will be right back after hearing a message from our sponsor.
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Bob Ambrogi: Welcome back to Lawyer 2 Lawyer, this is Bob Ambrogi and joining my co-host J. Craig Williams and I today are attorney Bicka Barlow from the Law Office of Bicka Barlow in San Francisco and Alameda County District Attorney Nancy O’Malley.
Bicka I want to ask you whether the use of a public DNA database such was the case here in any way heightens the risk of a false positive. I know the Los Angeles Times reported that the DNA search in this case for the Golden State Killer kind of took the investigators down a couple of wrong paths when they thought they had DNA matches or they found DNA that seemed to closely match and they turned out to be dead ends.
But does the fact that this is a public database or a familial database in any way heightened that risk?
Bicka Barlow: I’m not sure that it, I can really answer that question. I don’t think it heightens the risk, but I do think the idea of familial searching in particular creates a different kind of problem and there is actually a rather well-known case that came out of New Orleans where an individual, his father had his DNA in the ancestry.com website and he was identified as almost an identical match to sample taken from a rape homicide I believe in Iowa.
And what that led to was an investigation of this gentleman’s family and the investigation of one of his sons and where they took DNA from him they got a warrant and it turns out that there were many facts that were circumstantially putting this young man near the scene of the crime, which if there had been a false match he would have been prosecuted and that evidence would have been used in his Trial.
But it turned out fortunately for him that it wasn’t him. And one thing I like to point out is that because we really don’t understand how similar we all are and I think we’re starting to learn about this now, it’s possible that you could be identical to someone in one of these DNA databases like the CODIS system and you in fact are not the person who left behind DNA at a crime scene.
So it’s a complicated question and I think it’s a very complicated answer but I think that Nancy’s point is well-taken which is how do you balance law enforcement need and people’s interest in investigating crime while protecting people’s privacy and I have been thinking about this case in the context of all of the Facebook scandal that we’ve had in the last couple months.
And I think similar to that people want to know about their history, they want to know about their genealogy and they don’t understand that by putting their profiles into a database that they are opening themselves up to people who they don’t want to have access to it, having access to it, like I mentioned before employers or as Nancy said, a stalker. And I think we have to think long and hard about privacy in the context of all of these different areas and I don’t think we have been doing a very good job of that, but I think this is a wakeup call for that.
Nancy O’Malley: I agree entirely with that and I also — we’ve looked at the issues around the Facebook that when Facebook first came about the rules were if you don’t allow someone to be your friend and only your friend could see your posting and then pretty soon we learned that the friends friends and friends could see the postings, and it became and now we know that they’re selling information about the privacy of the people who are subscribing to Facebook or other sites like that.
And so the same call for the question about how are we protecting people’s privacy in Facebook when they feel like they have a privacy right, even though the system is not set up for that, how do we educate people about making the decision whether they’re going to put their personal business into a database or to a platform that can be accessed by pretty much anybody.
Bob Ambrogi: Well, of course the irony is, is that people do this because they want to find those matches. I mean they’re looking for relatives, they’re looking to figure out their genealogy, their family history. Bicka, what do you advise people and I think you said earlier in the show that you would tell people not to put their DNA into something like GEDmatch, what about using just the regular services, the ancestry or 23andMe, do you have advice for people on how they should use those services or whether they should use them?
Bicka Barlow: Well, as I said earlier my advice generally is especially if you’re a man that it’s probably not a great idea and the reason for that is sort of a different issue or different question than what we’re talking about today, but I think I mentioned at the beginning of this conversation which is that as the technology is improving in DNA testing, we’re getting more and more complex samples and that means that they’re harder and harder to interpret and the labs are having more and more difficulty identifying sources to these samples because they’re complex mixtures.
And the problem is if you misinterpret a sample from a crime scene and then identify an individual who could be a source of that sample, you could very well be identifying a completely innocent person. And I mean I will say this and here and I said it many times before, but I am a 100% convinced that there are people currently in prison right now who have been convicted of a crime based on shoddy DNA evidence and they are 100% innocent. I’m absolutely convinced of that.
And that’s really my concern when it comes to just the over extension of the use of DNA without having corroborating evidence to support DNA evidence in the courtroom which does happen.
Nancy O’Malley: Well let me —
Nancy O’Malley: Well, it’s a critical point to make that. Prosecutors I will say, for the most part, you can’t speak about everybody, but prosecutors have no interest in having innocent people be convicted or incarcerated. And part of how we are able to rely on the validity and the credibility of that DNA evidence is looking at the history of the lab.
So labs have to report when they have false positives or when they make mistakes or when they mix their samples those types of things. Most of DNA analysis is now done by robots and by computers and so there’s less opportunity for those types of mistakes that are made in labs, but labs have to document that. And when they do document it, that becomes part of the case.
So as a prosecutor if I look at a lab’s history and see that they’re sloppy or that they’ve made mistakes or they’ve misidentified, I’m not likely to take that to use that lab for any of the work. And this point I’ll make is that whenever the suspect — if a suspect is identified and that person is brought into the court, there’s a second DNA test that’s done.
So we always do a confirmation test on the person that is identified by the profile to make sure that the person who’s sitting in that room is the same person who’s responsible for the DNA that was left at the crime scene. And in this particular case, multiple crime labs identified the same profile even though they didn’t even know the others were working on that, on crimes from the same person.
Nancy O’Malley: My phone number is 510-272-6222 and my email address is [email protected]
Bicka Barlow: Well, I just think that we need to be cautious when we use DNA evidence in cases regardless of how you find the match in individuals. I think people overestimate the accuracy of the testing and with the advances in technology and sensitivity, I think that it’s something that we should be looking at and we don’t want to wake up one day and have people coming back to court saying, look I now can prove my innocence based on a new or different type of technology.
We don’t want to have what’s happened in the United States with eyewitness identification and tool marks and fingerprints. That would be another travesty. And that’s about all I have to say.
My contact information if anybody wants to speak to me you can get on my website which is my name bickabarlow.com.
Bob Ambrogi: And I also like to just take a moment to thank Bicka Barlow and Nancy O’Malley for taking the time to be with us today. Thanks a lot, really appreciated your insights and comments on this issue.
And of course, you can also visit us at legaltalknetwork.com or you can leave a comment on today’s show and sign up for our newsletter. This is Bob Ambrogi, on behalf of Craig Williams and everybody at the Legal Talk Network, thanks for listening. Join us next time for another great legal topic, when you want legal, think Lawyer 2 Lawyer.
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