Court halts state's familial DNA searching procedures

A state appeals court, by a 3-2 vote, has struck down New York State procedures for familial searching, an emerging forensic technique used around the country to identify possible crime suspects.

The decision Thursday by the Appellate Division First Department found that the state Commission on Forensic Science and the Division of Criminal Justice Services operated outside their authority when, in 2017, they adopted rules on forensic searching, a technique that allows investigators to search state DNA databases to try to find a close match to the genetic profile of an unknown crime suspect.

In 2020, the state commission issued a supplemental rule for familial searching in cases of unidentified human remains, such as the Gilgo Beach killings.

Thursday's ruling by Justice Judith Gische stated that “overwhelming policy issues” related to familial searching “warrants a conclusion that it is an inherently legislative function and that the challenged regulations cannot stand.”

A spokeswoman for DCJS said the agency was reviewing the decision and would decide if there would be an appeal.

At least 10 states have approved the use of familial searching and used it successfully in cases. The method gained traction in the state after the 2016 killing of Howard Beach jogger Karina Vetrano, though familial searching ultimately was not used in the arrest of a suspect in that case in 2017.

New York prosecutors have brought two criminal homicide cases based on familial searching — one in Rochester and one in the Bronx — but it was unclear Friday what impact the ruling would have on those.

It also remained unclear to DCJS what impact the decision would have on the ability of police to use familial searching in the cases of three unidentified Gilgo victims.

The Gilgo investigation began on Dec. 11, 2010, when Suffolk police searching for a missing New Jersey sex worker instead found the body of Melissa Barthelemy, 24, in Gilgo Beach. Barthelemy’s body was the first of 10 found in the area, and all had been reported missing between 2007 and September 2010. 

Suffolk County officials with the FBI used investigative genetic genealogy to identify Gilgo victim Valerie Mack in 2020. She was last seen alive in 2000, and her body parts were found in Manorville and off Ocean Parkway years later.

The Legal Aid Society and the Manhattan law firm Gibson, Dunn & Crutcher LLP brought a state court lawsuit challenging the state regulations on behalf of Black petitioners who are relatives of convicted people whose DNA profiles are already in the state genetic database.

The petitioners argued that they don’t know if they would be targeted in familial DNA searches and “harbor great concern and anxiety” that they could be investigated because they are related to a convicted criminal, the decision noted.

In statements, Legal Aid and Gibson, Dunn lauded the decision and said it recognized important privacy rights and addresses concerns of people of color.

In a dissent, Justice Anil C. Singh said the petitioners didn’t allege they were ever approached by law enforcement, were unable to show they were in fact injured under the rules and lacked standing to bring the case.

“An investigation will not necessarily lead to prosecution, arrest or even any contact with police,” Singh said.

Former California prosecutor Rockne Harmon, an early proponent of familial searching, said people aren’t identified because of race but rather because of being a close relative of someone in the criminal database.

State Sen. Phil Boyle (R-Bay Shore), also a familial search backer, said he plans to introduce legislation in Albany to have familial searching enacted.

By Anthony M. DeStefano

tony.destefano@newsday.com

Anthony M. DeStefano has been a reporter for Newsday since 1986 and covers law enforcement, criminal justice and legal affairs from its New York City offices.