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Police Used A Genealogy Website To Crack An Iowa Cold Case. The Tool Is Raising Concerns Elsewhere.

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Courtesy: Cedar Rapids Police
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A 40-year-old cold case was solved after officers turned to a family genealogy website. The practice is raising ethical and legal concerns across the country.

The cold case murder of Cedar Rapids teenager Michelle Martinko went unsolved for decades, until last month, when prosecutors won a guilty conviction by relying on a 40-year-old crime scene and a family genealogy website. It’s one of the first cases of its kind to go to trial but it’s raising questions about ethics and legality.

It was 1979, the week before Christmas when 18-year-old Michelle Martinko went to a brand new mall in Cedar Rapids to pick up a winter coat. But she never made it home that night; she was found stabbed to death in her parents’ Buick in the mall parking lot.

With no murder weapon and no clear motive, Martinko’s killing haunted Cedar Rapids residents for decades. Generations of police officers worked the case.

They tested and retested DNA evidence that the male suspect left at the crime scene, but never got a match in the FBI’s DNA database.

Then in 2018, they heard about a new tool. With the help of the private genetics firm Parabon NanoLabs, officers uploaded the suspect’s genetic profile to a public genealogy website called GEDmatch.

The site is somewhat similar to the better-known 23andMe or ancestry.com. It’s a favorite of people looking for long-lost relatives, and unlike the other services it’s free to use.

After nearly 40 years of investigating, officers got a hit on GEDmatch: a distant cousin living in Washington State.

From there, the private firm built a family tree of potential suspects and officers began the tedious task of tracking them down, secretly following the men, waiting for them to throw away something they could test for DNA.

For 64-year-old Jerry Burns, it was a straw he used at a pizza restaurant in Manchester, Iowa.

Thirty-nine years to the day after Martinko was killed, Officer Matt Denlinger and his partner J.D. Smith questioned Burns, in the city where he’d lived his whole life, just an hour from the crime scene.

They secretly recorded the interaction.

“Did you murder someone that night, Jerry?” Denlinger asked the man.

“Test the DNA,” Burns said.

“Jerry,” Denlinger continued.

“Test the DNA,” he replied.

“Why did this happen Jerry?” Denlinger questioned.

“Test the DNA,” he said again.

“What happened?” the officer asked.

“I don’t know,” Burns replied.

Last month, a jury convicted Burns of first degree murder based on the DNA evidence. Burns’ case is thought to be just the third in the country to go to trial.

"I see a utility in this, I do. But right now it's like the Wild, Wild West where people just kind of doing what they do, because there are no rules." State Sen. Charles Sydnor, D-Md.

Other similar cases, including that of the alleged Golden State Killer in California, are at various stages of investigation or are awaiting trial. The high-profile California case made national news in April 2018, when officers tracked down the accused serial killer after testing his trash for DNA. The development is considered a major breakthrough and has sparked similar investigations in other cases across the country.

But the use genetic genealogy by law enforcement officers remains controversial. In recent years, GEDmatch has changed its policies to alert users that investigators have an interest in the site. Where in the past police had access to the profiles of all of the site’s approximately one million users, those users are now required to opt in if they want to participate in searches by police.

State lawmakers in several states are considering restricting police access to consumer DNA databases.

At first, State Sen. Charles Sydnor ,D-Md, wanted to ban the practice. But after advocates pushed back, he’s seeking a compromise.

“I see a utility in this, I do,” Sydnor said. “But right now it’s like the Wild, Wild West where people just kind of doing what they do, because there are no rules,” Sydnor said.

There are some rules. The Department of Justice has put out guidance on how officers should use genetic genealogy. But it’s just that, guidance. And there’s a lot of interest in this technology.

Parabon NanoLabs, which worked on the Burns case and is one of the go-to private contractors in the field, says they’ve now worked with agencies in 47 states.

"We could set up a society where we catch every bad guy. But at the same time we would imprison ourselves to the government." - Michael Melendez, Libertas Institute

Consumer database searches are generally reserved for the hardest-to-solve violent crimes, often cold cases.

But sometimes investigators don’t really know who they’re searching for, and don’t have a warrant for their search.

Sydnor’s bill would put limitations on this practice, by restricting familial searches of genetic profiles to a smaller web of family members.

“[In larger searches] you’re implicating a number of people who have…where there’s absolutely no probable cause, they have nothing to do with whatever crime it is you’re trying to solve but yet you’re pulling their genetic information,” Sydnor said.

Michael Melendez of the Libertarian think tank Libertas Institute has helped write a bill filed in Utah. He says he doesn’t doubt that a larger scale of what some call “genetic surveillance” could help officers solve more crimes.

“We could set up a society where we catch every bad guy,” Melendez said. “But at the same time we would imprison ourselves to the government.”

"You can make an argument especially in light of recent Supreme Court precedent that obtaining information from either a public or a private database without a warrant is unconstitutional," - Christopher Slobogin, Vanderbilt University Law School

The practice of warrantless searches of the consumer databases also raises concerns for Christopher Slobogin, director of the Criminal Justice Program at the Vanderbilt University Law School.

“Oh yeah, I think they definitely gotta get a warrant,” Slobogin said. “You can make an argument especially in light of recent Supreme Court precedent that obtaining information from either a public or a private database without a warrant is unconstitutional.”

In fact, Jerry Burns’ lawyer argued that using the database in his case was an unconstitutional search and in violation of his Fourth Amendment privacy rights.

Legal experts say it’s the first time the constitutionality of these searches has been raised in court.

But the judge in the case shot it down citing what’s known as the third party doctrine, writing that because GEDmatch users shared their DNA with a third party (GEDmatch), they do not have an expectation of privacy over that information.

In the 2018 case Carpenter v. United States, U.S. Supreme Court justices hinted they could re-examine modern privacy rights to digital information. But it’s not clear how that could impact these consumer databases.

In the meantime, Janelle Stonebraker is thankful that investigators have this option. She is the sister of Michelle Martinko, and said she had given up hope on seeing a resolution in the case when investigators called to let her know they would be re-examining the crime scene DNA.

"That of course, was an amazing revelation and reorienting of thought and feelings. Because who else could it have been all those years?" - Janelle Stonebraker, sister of Michelle Martinko

The use of genetics in the case led to elimination of more than a hundred potential suspects. For Stonebraker, that meant the exoneration of her sister’s friends and ex-boyfriends, who had long been scrutinized by police.

“That of course, was an amazing revelation and reorienting of thought and feelings. Because who else could it have been all those years, in our estimation,” Stonebraker said.

Stonebraker said she is aware of the criticisms of the investigative method and has family members who are concerned about how genetic information could be used to discriminate against patients in healthcare settings.

“I think always the technology is ahead of the law,” she said. “So I think it will all have to be looked at, they will have to analyze all of the permutations and misuses and see what is see what is necessary.”

Another person thankful for this innovation in forensic investigation is Brandy Jennings. It was Jennings’ DNA that led officers to Jerry Burns in the first place. She says for her, privacy was never a concern.

“I don’t regret it. I don’t think that it’s a bad thing. I don’t think I would’ve chosen differently. You know, it’s kinda like one of those things, if you don’t have anything to hide what’s the big deal?” she said. “To me anyways.”

Like 200,000 people on GEDmatch, Jennings has agreed to let officers use her DNA in their searches.

As of now there’s not much stopping them from doing just that.