The Golden State Killer Arrest—and the DNA Questions it Provokes

As anyone familiar with the story knows, the arrest of Joseph James DeAngelo in early 2018—the alleged perpetrator of the Golden State Killer/Original Night Stalker rapes, murders, and robberies—marked an outcome so dramatic, it felt better suited to the final chapters of a novel. Consider all the circumstances that occurred in this case that rarely occur in the real world grit and grind of law enforcement: a string of crimes persistent and vicious enough to gain the killer a household nickname, a veteran investigator witnessing the end of a career-long obsession in the days following his retirement, and dozens of victims and loved ones gaining closure after 30 years.

In a story so unusual, it is only fitting the techniques utilized were every bit as novel. While few individual facets of the approach could be considered new to the field, the precise combination of standard policework, technology, and outside-the-box thinking used to bring the alleged Golden State Killer (GSK) down certainly were. This was controversial even as they brought the tactic’s principal creator, Paul Holes, a groundswell of fame and public support. It also brought DNA-based investigation down an innovative, potentially legally-gray avenue: one that touches matters as serious as individual privacy, law enforcement reach and overreach, and the lengths to which a public entity should be allowed to go to catch a criminal that has not been active in many decades.

Holes’ application of the technique falls under the loose definition of “DNA profiling” or “familial DNA investigation.”  His technique represents a revised take on a method investigators have applied to criminal and unidentified-persons cases in the past. Cold case investigators in other states, undoubtedly following the GSK case, have subsequently attempted some manner of the technique in their own cases, with a handful of notorious crimes seeing closure in the months since DeAngelo’s arrest. This domino effect will likely continue, with high-profile cases begetting new attempts. This phenomenon will just as surely compel the courts to answer questions linked to the concerns posed above. With a practice that requires investigators to create false accounts on commercial genealogy databases and search the DNA profiles of millions of innocent persons, numerous untested areas need further coloring before the practice can gain widespread acceptance and usage.

GSK example requires greater scrutiny than usual LE controversy

In context of the DNA profiling techniques, it is admittedly hard to see Holes willingly sidestepping ethical or legal boundaries to work on the GSK case. If anything, his continued work on the matter post-retirement underscores just how driven he was to discover the killer’s identity. Having spent the brunt of a career on the case, experiencing such a lightbulb moment—namely, the idea to check the killer’s known DNA against information held in commercial genealogy databases, then using that data to search through public records, social media profiles, and other sources until he zeroed in on a valid suspect—and not pursuing it would be tantamount to torture.

In fact, the very actions that made the investigation a slow-burning success are the same that have garnered such criticism. It is a multifaceted issue, complex enough to fill entire books, but the highest-level concerns break down into a few points:

  • Finding a match means sifting through countless non-matches, as one resource linked above explains. It is not clear that Holes had much access to sensitive information—no more than the average user of the site he searched through—but there are still many citizens who would prefer law enforcement personnel did not search their (or their family’s) history under pretext, especially if that search sidesteps traditional criminal justice policy and standards.
  • Incrimination. Similarly, users who voluntarily submit their DNA to a consumer genealogy services generally do so to gain information about their genetic histories. It is fair to assume most do not wish to “unwittingly [become] genetic informants” on their own family members.
  • Holes and others who create false profiles or use the sites—most of which take strong stances against providing customer information to law enforcement without court compulsion—beyond their intended purposes inherently break the terms of service they agreed to when signing up. As above, most popular services in the market (i.e. the ones that inherently hold the most interest for investigators) have a long-running history of denying law enforcement requests unless they are made via subpoena. While violating a website’s terms of service is generally not regarded a crime, there is also the thought that law enforcement agencies, by their very definition, are there to enforce order and follow strict procedures.

Thus, the manner of DNA profiling Holes exhibited in the GSK case necessitates broader discussion, and makes a compelling case, both for and against broader use of DNA-based investigation in cold and current cases. These thoughts alone make the issues raised in the wake of DeAngelo’s arrest worth consideration, compared to the criticism that sometimes seems to follow high profile law enforcement activity simply because law enforcement engaged in it.

High-profile cases, DNA databases, and precedent may soon clash

The fact that Holes, along with other investigators who emulate the method he made famous, was forced to use a consumer-facing service to begin with poses several interesting questions as well. DNA is a fascinating topic within and beyond the scope of law enforcement; the study, collection, and manipulation thereof is a cultural touchstone and popular topic of discussion for science media, the larger news industry, and entertainment mediums alike.

It is also one of the most powerful tools at the criminal justice system’s disposal, a fact reflected in its ever-increasing usage across the system. At present, every US state collects DNA from violent felons, and over 30 take samples from every felon to hit the books, regardless of crime. The practice has been an unmitigated success at this level, with states like California clearing cold cases at impressive rates thanks to the ability to link new DNA to old crime scenes.

There are limitations, however, most of which owe to the privacy concerns presented above. Today, the New Scientist article linked above notes that a national or statewide database containing all citizen DNA is a highly contentious hypothetical at best, meaning law enforcement’s ability to cross-reference new and old DNA data stops where the state’s roster of past and present criminals ends. This is almost certainly the reason Holes and his team utilized commercial solutions in place of a government-sanctioned alternative.

If government-run DNA banks gained enough traction to start appearing at state or federal level, it is hard to imagine any variation gaining traction without significant negative public response. Whether the body in question gathers DNA samples as a matter of course (collecting data from infants at the hospital, for example) or acquires the data under other contexts (a comprehensive “family search” service) to law enforcement agencies, it seems that low engagement with or adverse reaction from the public are the only two possible outcomes.Commercial DNA sources remain the best investigative tool as a government-run, central database containing all citizen DNA is a highly contentious topic.CLICK TO TWEET

Thus, commercial sources represent a best option and forbidden fruit of source to investigative agencies, particularly those concerned with cold cases or unsolved violent crimes. While it is certainly not unheard of for service providers to sell or otherwise provide consumer data to law enforcement before subpoena is necessary, the kind of sweeping search that brought the alleged GSK to justice is, to this point, in a flux that invites public criticism.  Recent developments in the genealogy database market might suggest a growing willingness to sell data to other sources, including law enforcement.

Now consider the optics problem a case like the GSK arrest poses. It is much the same story when a decades-year-old child murder is solved using similar means, or when online sleuths use commercial genealogy databases in ways that conflict with their intended usage. Even with the conceptual concerns, it is hard to argue against the outcomes.

The point here is not to present a philosophical argument but to highlight the loose framework law enforcement DNA arguments will likely take as notable cases make headlines and wind their way through the courts. The issue rests on too many public-opinion hotbeds to think it will remain comfortably in the gray area highlighted by the Golden State Killer case.

Conclusion: DNA investigation is revolutionary—but it isn’t finished

Once the policy and court-backed decisions are determined, it is hoped that the ultimate result will respect the individual citizen’s privacy without restricting the average agency’s ability to identify and put away people like DeAngelo. In a sense, one could say the questions stemming from GSK are the biggest concept versus practice concerns modern technology has raised to date. There is undeniable value in the principle of government respecting privacy in all its forms, including that implied in DNA data, just like there are tangible benefits to identifying criminals.

Posted on May 6, 2019