The Decibel - Cold cases are being cracked with the help of ancestry sites

Episode Date: October 18, 2022

Finding a suspect based on their DNA alone used to be almost impossible: police could only search DNA databases of people who’d already committed crimes and been convicted. But the increase in popularity of online genealogy and DNA databases are changing what’s possible.The Globe’s Colin Freeze has spoken to Canadian detectives who are using the same technique that caught the Golden State Killer to solve cold case crimes here in Canada.Questions? Comments? Ideas? E-mail us at [e-mail]

Hi, I'm Mainika Raman-Wilms, and you're listening to The Decibel, from The Globe and Mail. Police have a new way of solving cold cases. It's called investigative genetic genealogy. It uses online databases like 23andMe and Ancestry.com, and it's already led to convictions in Canada. The semen sample and the saliva sample had lined up, and the blood was going to line up too. And so it was at that point that the conversation turned to what he would admit to. Colin Fries is an investigative reporter at The Globe,

and he spoke to some of the detectives using this new technique. This is The Decibel. Colin, thanks so much for speaking with me today. Good to be here. I have to say, this is a pretty incredible story. Can I just ask you, how did you first come across this? So somebody emailed us a tip in the fall of 2021 about a pair of detectives in Calgary who had actually taken these investigative genetic genealogy techniques to the next level, in that they were actually getting convictions through courts on them. We had heard, myself and some of my colleagues at the Globe and Mail had heard and

reported on cases of DNA techniques being used to identify killers who had gotten away a few years ago or identify human remains. But I think what we were waiting for was to see evidence that you could convict somebody with these techniques in a Canadian court,

get these prosecutions through the gate, if you will. And it was then that somebody said, you really should look out west because it's happening. So there are two detectives in the Calgary Police Department's cold case sexual assault unit, Detective Michelle Moffitt and Detective Trish Allen. Can you just walk me through the case they solved

using investigative genetic genealogy? 30 years ago in 1991 in Calgary, there was a horrible crime that was perpetrated, a crime that was both a home invasion, violent sexual assault, where there was a woman, a 28-year-old woman, who was at home alone with her. Her baby was in the house. Her baby was sick. And then an intruder basically broke in through a basement window, kicked in her door, and committed a violent sexual assault and fled into the night. But she did go to the hospital, right? And they did have DNA semen then to trace him with.

Right. Yeah. She did the thing that, you know, that happens in the aftermath of these horrible crimes, which is you go to hospital, you submit to a sexual assault forensic examination, and there was biological material recovered from her, as they say, and archived. So that was the offender's DNA that they had. But of course, in 1991, nobody knew how to interpret that. And 10 years later, you know, we are passing laws, DNA laws that give police some DNA investigative tools in terms of compiling and searching records of convicted sex offenders and whatnot into the Canada's National DNA Bank. So they never let go of the DNA evidence. In fact, Moffitt periodically, after joining the sexual assault squad in 2010, she would run this DNA through our databases, our conventional police databases again and again periodically and see if there was any hits and there was no hits.

And that's because this offender did not re-offend or he was never known to re-offend. But even those techniques were not useful throughout the 2000s and most of the 2010s. It wasn't until about 2019, I think, that this material became to be of some use. So what changed around then? So around 2017, 2018, there are cases very public, that play out very publicly that start revolutionizing this work across the continent, around the world. The most famous one being the Golden State Killer case, where there was, you know, basically a suspect from 1970s Sacramento, California, who committed, I think, more than a dozen murders and dozens of home invasions and sexual assaults.

And he had escaped law enforcement efforts to identify and find him from the 1970s and the 1980s and the 1990s and the 2000s. And it wasn't until these sort of new investigative genetic genealogy techniques came online and were sort of pioneered that he was caught. And that was an inspiration to police forces across the continent, including in Calgary. So then what did they do? How did they actually go about that they've got this DNA? What's their next step? Right. So I think there's been a few things that changed in the last 10 years the most important one of them being the

the sort of advent of what are called direct to consumer genetic testing sites these are you'll hear a lot of advertisements this christmas from ancestry.com you know send in the saliva sample into us and we will tell you who's in your genetic family tree now they don't surrender these family trees these genetic profiles to police but they but they do surrender them to consumers, to the people who request them. And some of these people are being prevailed upon by other companies to hand over their family's genetic DNA profiles to searchable law enforcement databases, or at least a company that will maintain a database that will be searchable by law enforcement. So if you sort of see this, these are sort of like the sort of seedlings in a coming forest of family trees that will be amassed and aggregated and compiled that will, over time, will get better

as it grows into a forest of family trees that law enforcement can search as more and more people volunteer this information to these databases. So this is the database, or these kinds of databases are what the detectives are then searching. So they've got this DNA from the early 90s and all of a sudden now they have this kind of this other place to kind of look for matches.

Yeah, this is again, this is not a state run database from like the Canada's National DNA Databank. These are third party databases. is a GEDmatch service, I think is a popular one, a genealogical database where people can volunteer the family trees that they get from Ancestry, make them available to law enforcement searches. And usually the police don't search these databases directly. They will hire independent consultants and experts who are essentially genealogists who know how to navigate these two worlds, the worlds of law enforcement and the world of this sort of growing pockets of genealogical data about everybody. Certainly in Calgary, they did hire a few of these expert consultants as the detectives themselves tried to get the expertise to sort of gain insights into their own DNA samples.

But, you know, there might be, the way this works is there might be a trait, a telltale trait in the sort of biological material that speaks to a familial, something in a family's chromosomes. In these private sector databases might be somebody's grandmother or, you know, fourth cousin twice removed that shares that trait. And from there you can sort of build out. As I think Detective Allen told me, you go back until you can go forward. You find those common ancestors and you build it up, root to trunk to branch, in hopes of seeing how that genetic information traveled, and eventually settling on branches of a family tree, if you will, that may speak to the offender who was uncaught years ago. So this is really fascinating. So these detectives, they have the DNA from the early 90s.

They're looking at these current databases of DNA. They're finding familial matches, essentially, of maybe who this person's family members are. What do they do then? Well, yeah, and I don't want to make it sound like this is like, you know, push a button, out comes a suspect. It's not. You may get to the branch of a family tree that may comprise, you know, push a button, out comes a suspect. It's not. You may get to the branch of a family tree

that may comprise, you know, dozens of individuals, several of whom might be proximate to the scene of the crime, if you will. So from there, you might have to go into a higher level of conventional genealogy by going through the archives and finding out where people lived and where families, how families traveled,

whether somebody was living in an apartment close to the crime scene or what kind of car, if they had registered a car in the same city as the crime scene. And I think in this case, the Brody case, they did find that he lived proximate to the suspect at the time, which made him a likely suspect. But that all that gets you is, as the detective said, is a hypothesis. It is a genetic hypothesis. You don't know if it's right or wrong. You have to take other steps to validate that hypothesis. So what are the other steps? Once they've got the idea that this might be the guy,

this is their hypothesis, what do they do then? Right. So this is where some sort of tried and true police techniques kick in. And this is what's usually known as the search for cast off evidence in which, you know, you can put somebody under surveillance. You can ask the surveillance teams to sort of unobtrusively shadow somebody around as they live their day to day life.

And you might watch them drink a can of Coke and toss that can in the garbage, grab the can. You might watch them smoke a cigarette, toss it out the window, grab that cigarette. Because these castaway items will contain traces of the DNA that you can actually take from 20, 30, 40 years later and cross-reference it with the crime scene DNA. And if you have a match, then you're no longer working in hypothesis. You have evidence.

You can put somebody in jail. After the break... You basically surrender your entire family's genetic privacy, not for a short time either. By doing this act, I think some critics point out, are you implicating your unborn relatives in future crimes that they may commit? made. How did the detectives catch this guy from the 1991 case? What was the cast off evidence that they found? Court records were a little bit ambiguous on this, this point. And I asked Detective Moffitt, what was the cast off evidence in Brody? And I think she said, well,

words to the fact that he spit on the ground and somebody uh you know in the surveillance unit scraped it up um of course it took them a couple tries to get that telling saliva sample but once they did and once they sent it to a forensic lab uh the answers came back yeah same guy but that wasn't all they wanted to uh go a step further to corroborate that evidence and so what did they do to corroborate the evidence they got a third did they do to corroborate the evidence? They got a third biological sample, his blood. They went to a judge and swore what is known as a DNA warrant, which, where a judge will give a police officer permission to get a sample of somebody's blood. And they did this in the context of a police interview.

So they basically brought Brody in, sat him down, you know, pricked his finger, got that blood sample, and it was in the course of that that Detective Allen, who was leading the interview, I believe, confronted Brody with what she knew. That the semen sample and the saliva sample had lined up and the blood was going to line up too. And so it was at that point that the conversation turned to what he would admit to. And did he admit? Yeah, he was admitted on the spot. You know, the evidence was clear. So I think it was in the context of this conversation that set the stage for a guilty plea and sentencing proceeding, both of which have occurred in the past year.

And he was sentenced to seven years. This seems like a pretty incredible technique, particularly to solve cold cases that have gone unsolved for years. It's also making me think about the ethical implications here, though, because, I mean, is it okay to find someone's possible DNA in this way? Well, it does lead to a host of downstream questions, some of which, you know, mirror, I think, the police use of facial recognition techniques. It's pretty clear that anonymity is fast becoming impossible in a lot of contexts in this world. Your face is no longer going to be anonymous in a crowd.

We already know there's software that can pick it out and use social media accounts to put your identity to it. The question becomes, you know, when should police use it and who should give permission for police to use it. Now comes the issue of genetic privacy, which, you know, I think privacy commissioners in Canada have been sort of beating the drum for years. I think of the former federal privacy commissioner, Dan Therrier, and the current Ontario privacy commissioner, Patricia Kosim, I think have been warning people, don't use these ancestry sites. You know, they would say that a lot of this is on some levels fruit of the tainted tree in that if you as an individual decide to lick a, you know, a saliva sample and put

it in an envelope, send it to a United States company that defines your genetic family tree and then go a step further and hand it over to another company that surrenders this to law enforcement, you basically surrender your entire family's genetic privacy, not for a short time either. I mean, there's no way to put it back in the box. So by doing this act, I think some critics point out, are you implicating your unborn relatives in future crimes that they may commit? Because it is going to be that powerful. As these sort of, right now, if you view this technique as something like a mosaic of everybody's family tree, there's only a couple of tiles in the mosaic. It's a very partial picture, but you don't need many families to create pictures for law enforcement to implicate people in crimes.

So as you build this data, as you amass this data, as you aggregate it, you know, the question becomes under what conditions should police be allowed to use it? Yeah. So just to clarify, if you've used 23andMe or Ancestry.ca or something like that, can your genetic data right now be used in this way by police? No, I've had some conversations with Ancestry in particular, but they say they do not surrender customer data to police. That's their sort of, I do know that a Canadian law enforcement did try to sort of serve production orders on them through a mutual legal assistance treaty. But I don't think they got very far. I mean it is – police will always try to use the courts to get companies to surrender data. But I think Ancestry's position and the position of other companies like Ancestry is that they will resist this.

They don't think it's their job to hand over this information to police. But it's these next order of companies, these get matches, these companies that are explicitly soliciting people to donate their genetic family profiles that I think are the ones that are given keys, given the police the keys to the kingdom, if you will. So people, these, today people actually have to volunteer that information in order for it to be accessible by police then? That's right, yeah.

Okay. This is obviously a very new frontier of crime fighting, Colin. Is there any legislation in any part of Canada that addresses this? No. Our DNA Act is frozen in time from a time around 1998 to 2002. was police and judges will be allowed to compel convicted offenders, often sex offenders, to submit their DNA to Canada's national DNA database upon conviction. But this tool does not permit what is known as familial searching. And that's by design, because in that frozen in time bargain from the early 2000s, the concession to privacy officials

was that we would not permit this sort of searching. But now entirely new tools have come out of nowhere and made themselves available to police. So how is this allowed now then? Well, you know, I think bringing it back to the Brody case, the prosecutor, Pam McCluskey, who works closely with the two detectives in Calgary, said he's got to be condemned for what he did. And what he did was horrible and violent and awful. At the same time, we will admit that he did save the court some time by admitting everything. And he did not challenge the technique or the evidence.

But had he done so, I'm sure we would have succeeded. So what does that say? It tells you that the Canadian Crown is confident that this technique can survive a constitutional challenge, could survive a privacy challenge. But that remains to be seen because again, for all the value of the Calgary cases, those suspects admitted their guilt and went straight to sentencing. And the courts were not forced to weigh the value of the technique against the constitutional freedoms or privacy. So it hasn't really been legally tested in that way yet because these have all resulted in pleas so far.

Right, exactly. The two Calgary cases generated guilty pleas, as did some of the other convictions. I think a total of four that I'm aware of. So the question then becomes, once an accused does put up a fight and says, look, I don't believe this technique is legal for X, Y, and Z, then what does the judge who is hearing that argument do with that argument? Of course, the other side of it really is that victims and their families,

to dredge up these cold cases again is a lot, I'm sure. Do 30 years on, 40 years on in some cases, the victims can still live this every day. Brody's victim, the young mother of 28, you know, she writes that she still checks the stairs every night to make sure there's not an attacker coming up to assault her in her home. And that's pretty powerful stuff. Like it's, it's just,

it's just, these people were denied justice. And so I think, um, they are getting their day in court. I think she did write though, that she was sentenced to life on May 4th, 1991 in her victim impact statement.

She said she was sentenced to life because of the fallout from that crime, which she, which complicated her relationship with her first husband, um, with her child that she had. And I think, you know, she also even went to the bank to say, I can't stay in this house anymore. Can you give me some mortgage relief? And the bank said, no.

All of these things are sort of dredged up at the sentencing hearing where she basically just talked about this incredible pain that she'd gone through. The other part of it, too, is that, you know, I think Detective Allen talked about how she's called up several of these victims from 30 or 40 years ago and victims who had thought police had forgotten them and she announces to them that, you know, by the way, we figured out who did it and it might go to court and you might have to testify, which is its own horror.

I mean, it's the it's, it's the people in their sixties being asked to relive what happened to them in their twenties publicly. I mean, they're, they're, you know, the Calgary police detectives did talk how a lot of the job is, is in working with these victims and sort of, you know, finding them that counseling that they may never have gotten and making sure they're all right through this process. Cause it is, it is a searing one for sure. So there are obviously some big questions about ethics at play here on a couple of different sides. But of course, this technique can help solve these cold case murders and sexual assault. So I guess it just raises the big idea here, Colin. How do we decide if this is really worth it?

Yeah. I mean, here's what's going to happen. There's going to be a case. There's going to be a case where somebody doesn't plead guilty. There's going to be a case where somebody will try to impugn the technique. If they fail to impugn the technique, then nothing happens. If they succeed, then you might get a lower court judge saying, I can't endorse this technique that police are using. And that might go to an appeals court or a Supreme Court.

And eventually it will go to Parliament. You know, if there is a disconnect between the technique and things like our privacy act and things like our constitution then ultimately parliament will have to square this and say you know red light green light amber light sort of thing but we're probably years away from that conversation but i think with each convictions that's registered it's an invitation for for all of us to have start having these debates about, you know, how comfortable are we in a world where there is no genetic privacy, at least for heinous crimes that police want to solve.

Colin, this is a fascinating and a really important issue here. Thank you. Thank you so much for taking the time to speak with me. Yeah, thanks very much. Before we go, I wanted to let you know that the Globe's Report on Business magazine is asking for nominations for its yearly changemakers list of emerging leaders who are changing business today. The magazine will profile 50 bold, innovative, up-and-coming individuals based on their ideas, their accomplishments, and impact. To nominate a changemaker, you can go to tgam.ca slash changemakers and fill out the form by this Friday, October 21st. That's tgam.ca slash changemakers. That's it for today.

I'm Mainika Raman-Wilms. Our producers are Madeline White, Cheryl Sutherland, and Rachel Levy-McLaughlin. David Crosby edits the show. Kasia Mihailovic is our senior producer, and Angela Pichenza is our executive editor. Thanks so much for listening, and I'll talk to you tomorrow.