Sarah Sharman  00:00

Before we jump into this episode, we wanted to give you a content warning. This episode contains a real-world example of a case that was solved using DNA technology. The case will briefly mention a few themes that may be distressful for some listeners, like sexual assault and murder. We’ll give you a warning right before that section in case you’d like to skip it. So now, on with the show

Chris Powell  00:28

Welcome to this episode of Tiny Expeditions. It is season four, episode two, and we are going to continue our conversation on DNA and forensics. My name is Chris Powell. I’m going to be your storytelling guide for this episode.

Sarah Sharman  00:41

And I’m Dr. Sarah Sharman here to help you understand the science.

Chris Powell  00:46

Today Sarah and I are joined by a couple of familiar voices, the first of which is Dr. Thomas May, and he’s going to help us walk through the ethics behind using DNA for forensics.

Thomas May  00:56

I’m Thomas May. My background is in philosophy in moral philosophy. In particular, I work in the field of bioethics, particularly as it relates to the ethical, legal and social implications of genomic sciences. I am a research faculty here at HudsonAlpha Institute for Biotechnology, and I hold an endowed chair in bioethics at Washington State University School of Medicine.

Sarah Sharman  01:23

And we’re also joined again by Angelo Della Manna, the director of the Alabama Department of Forensic Sciences.

Angelo Della Manna  01:28

I’m Angelo Della Manna, and I’m the director of the Alabama Department of Forensic Sciences.

Chris Powell  01:39

The Golden State Killer is really the case that put DNA genetic genealogy and forensics on a lot of people’s radar. If you’re unfamiliar with the Golden State Killer, go back and listen to episode one of this season. In that episode, we talked through the whole case.

Sarah Sharman  01:56

And in that episode, we also learned that we all have unique DNA, a fact that is proven helpful for law enforcement to solve 1000s of cases that wouldn’t have been solved otherwise. Personally, I think the use of DNA technology in the forensic world is truly amazing. I mean, we did catch the Golden State killer after four decades using the technology. But you being a philosophy guy, Chris, I’m interested to hear your opinion.

Chris Powell  02:20

Yes. So the case like the Golden State killer, it does raise some very interesting questions, right? Like, I think we all want the bad guys to be caught, right? Like you hear the Golden State killer, and you want the Golden State killer to face justice. But on the flip side of that, what’s the price that we’re willing to pay personally in order to catch the bad guys, right? Do we want people to have access to our personal information, our DNA, our history that that DNA represents? I mean, it’s all questions that we have to wrestle with. And thankfully, we have Dr. Tom May here to help us wrestle with those questions.

Thomas May  02:56

I think the most important elements of that case for what we think about in terms of the ELSIs, the ethical, legal, and social implications of genetic sciences, are its implications for privacy. The Golden State Killer, himself had never submitted his DNA sample to any DNA databases, it was not present in any DNA databases. But when law enforcement had a DNA sample from a crime scene, they were able to upload that data to an ancestry related genealogy database, GED Match, and find distant cousins of the Golden State Killer. They weren’t close cousins. They weren’t first or second cousins, but they were third cousins and more distant than that. And through those matches were able to build a family tree of the Golden State Killer to identify about a half dozen individuals who were in the state of California at the time of the crimes, and possibly could be the Golden State Killer. The law enforcement was then able to surreptitiously obtain DNA samples from those individuals and was able to match one to the genetic material that had been left behind at the crime scene. The implications of this for privacy are quite profound in that we were able to identify the Golden State Killer, or law enforcement was able to identify the Golden State Killer, not through his own submission of his DNA profile to a genetic database, but by a distant cousin’s submission of DNA material to a genetic database, which means we know that individuals can be traced with enough effort and enough genealogy work through their family trees even if they themselves do not submit that information. And so that has very profound implications for privacy.

Sarah Sharman  05:08

We live in a society that does everything at hyper speed. So now that we have this technology, everybody wants to use it to catch the bad guys, understandably so. But should we slow down and make sure that we’re making appropriate ethical considerations when creating legislation around DNA privacy?

Chris Powell  05:25

Each of us make ethical decisions every single day of our lives. The question is, are we fully aware as we’re making those decisions? Well, we probably should be. And that’s the whole point of this episode. How are we coming to these ethical conclusions? Are we being pragmatic? Do we just make these decisions based on what’s good for the common good? Or do we have a sense of justice that we need to see lived out in society? Are we making these decisions based on equality? Or do we have some kind of a virtual or moral center that we’re pulling from to make these decisions? Right? These are all questions that we go through. But many of us go through these questions without even really thinking about it. But if we don’t think about it, then in many cases, we just let these kinds of things happen. And before we know it, our privacy could actually be gone.

Thomas May  06:16

Yeah, I think there’s a balance to be drawn here. I agree with you that in the case of serial killers, I think most people think this is a very good use of genetic databases, right? But we also have to remember that there’s a lot of history in the United States anyway about the protection of privacy that will sacrifice some law enforcement goals. Right. So, if we didn’t have restrictions in search and seizure, for example, it’d be much easier for law enforcement to catch criminals for a variety of types of crimes. But we recognize that the downsides of those violations of privacy, the unrestricted violation of privacy, if you will, right, that those are even greater than some of the crimes that don’t get solved because we have those restrictions in place. I think we have to think seriously about genetic material in the same way, right? Having unrestricted law enforcement use of databases could represent a violation of fundamental individual privacies in the ways that we’ve been describing here today that have implications for the loss of privacy that may outweigh some law enforcement aims. And so, we are so new in the implementation of this technology that really is sort of a wild west out there right now. We don’t have regulations to guide us in how to reasonably restrict ourselves. And so, I think we have to spend a lot more time and effort thinking about those guidelines and what regulations we need to have in place to protect individual privacy in this new age of genomic information, where information about you can be obtained, even if you don’t want it to be obtained through others participation in genetic databases.

Chris Powell  08:18

So, is this a trade that we’re willing to make our privacy for capturing the bad guys? Because the deeper question is, is that really the choice that’s put before us? Or is this question even more nuanced than simply trading privacy for catching bad guys?

Sarah Sharman  08:34

What Dr. May just said is another really important point. The Golden State Killer never uploaded his DNA to a database, but he was caught because a distant relative was in the system. The big question becomes how much control should I have over my DNA information once I’ve submitted it to a database? DNA helps solve crimes and diagnose diseases, which I would argue are very important. But what happens if your DNA is used for something you did not originally consent to, or you don’t believe in?

Thomas May  09:02

In the 2000s, genetic researchers at Arizona State University wanted to do a study of the potential genetic basis of diabetes. Diabetes was particularly prevalent in a Native American tribe in the area, the Havasupai tribe. This tribe agreed to participate in the genetic study of diabetes in the hopes that it would result in the advancement of treatments and cures for diabetes. Nothing was found; no advancement was made there. But the genetic material provided was then used for a number of other studies, including some that might potentially be stigmatizing to the community, as well as studies that delved into the historical migration of ancestors of the tribe across the Bering Straits that were a threat to deeply held spiritual beliefs within the tribal community. So, these other projects, these extra diabetes projects, if you will, were things that the tribe members had not consented to, that were undertaken using the genetic material that was provided for the diabetes study. So, it’s another example of how the advancement of science sort of neglected the effects of other projects on that community and the ways that that community might be affected or harmed by those studies.

Chris Powell  10:45

It’s hard to imagine if you were a member of the Havasupai tribe to be told one particular cultural narrative only to be told, well, this is not true. I mean, what the people of the Havasupi tribe signed up for was diabetes research, and what they got was something that contradicted their founding cultural narratives. DNA redefined their reality. What if DNA defines a reality that is not representative of the world that exists? The CODIS database mentioned in our previous episode contains the DNA of those with felony charges. This database is largely composed of those who are black, Indigenous, and people of color. Is DNA technology helping increase equitable justice? Or is it contributing to the inequality in the system?

Thomas May  11:33

If we don’t have an equal application and enforcement of laws to all groups, the sense of equal standing within society and the sense of equality of individuals will be lost. You know, we need to back up those ideals with the way that we implement the rules of society. And what we know as a fact today in society is that some populations are overrepresented in the criminal justice system. By a very large margin. You know, the number, the percentage of those communities that are in prisons, far exceeds the percentage of that community in the general population. And the implications of this then is if everybody who gets placed in prison has their genetic material entered into CODIS for future law enforcement use, then the application and enforcement of laws will reflect the disparity in imprisonment that we see in our society in general. So, it will further exacerbate those inequalities. And I think that’s a very serious problem for our country as a whole. You know, I think it’s very important to have an understanding of equality in which laws themselves are equally applicable to all segments of society and all populations within society, and that enforcement will be equal within those different segments of society.

Sarah Sharman  13:22

Thankfully, people are thinking and talking about these inequities, and we do have some regulations in place. Here’s Director Della Manna to tell us more about CODIS legislation.

Angelo Della Manna  13:33

As the DNA database laws were implemented throughout this country, Alabama, in 1994, we were one of the original six states that passed a law that established the DNA identification act in our DNA database law. And Alabama and the other five established the statute that allowed at that time for the collection of a DNA reference sample from any individual convicted of any felony. So, the two operative words in that sentence are convicted and felony. Okay. There were only six states in the mid-90s that had that type of law on the books. The vast majority of the other states, when they first established their own DNA database laws, typically said your sample would go into the DNA database if you are convicted for either a sex offense or a violent offense like homicide, for example. And in terms of legislation, what is really lightspeed, you know, in a 10-year period, all 44 other states went back and amended their legislation to be more like Alabama’s legislation. And so, as we sit here today, every state in the Union collects from all convicted felons and burglary-type offenders.

Angelo Della Manna  15:12

Another wave of amendments to the DNA database laws at the federal level and at the state level happened where instead of only collecting DNA samples upon conviction for any felony, the next wave dealt with considering whether or not we could collect a DNA sample at the point of arrest for any felony. So the reasoning behind that is if you could identify an individual as the perpetrator when they’re in the jail before they’re released on bond, at the point of felony arrest, then you may not only prevent other crimes from happening, but like you wouldn’t necessarily have to wait for the court system to complete the adjudication process that may take a year to two years to result in a conviction. And when you’re arrested, you know, you haven’t been convicted of anything. You’ve met a threshold for probable cause, but you haven’t been convicted of anything. And so, placing a DNA sample in the database at the point of arrest was a hotly debated topic in the late 2008 to 2015 time period. But ultimately, in cases that went all the way up to the Supreme Court, and in Alabama and our legislature, as we sit here today, now 31 states, including Alabama, now collect a DNA sample at the point of arrest for any felony and certain misdemeanors that have a predisposition to be sex offense related.

Angelo Della Manna  17:01

So, in Alabama, I believe we have one of the fairest DNA database laws in the country. If you provide a DNA sample pursuant to a felony arrest, and then that charge is either, you know, it could be dropped, it could be no billed by a grand jury, you could be found not guilty at trial, etc., there’s a process in place that if you wish to have your sample expunged, you can do so.

Chris Powell  17:34

Sarah, it’s hard to talk about the criminal justice system and forensics without talking about the idea of the panopticon. Are you familiar with the panopticon?

Sarah Sharman  17:41

Yeah, that’s the idea that we’re constantly being watched and monitored by the man, right?

Chris Powell  17:46

Yeah, exactly. This idea came up as a way of the ideal structuring for a prison, right, so you have a guard that’s in the center and this guard at any point can see any prisoner that’s in the system. The idea is that not only is it helpful for the guard to see everyone, but if you feel like you’re being watched, you behave differently. So, this idea was picked up in philosophy, and it’s been looked at as a way of structuring society, right? If we in society think that we’re being watched at any given point, we will behave differently. We walk into buildings, and we’re fully aware that we are being watched that basically all times we look for the cameras that are in the room. The question that really came up in my mind, though, as we were talking with Dr. May and Angelo is, well, is our DNA just another way of us being watched?

Thomas May  18:36

We’re seeing the advent of artificial intelligence and machine learning in ways that predicting your behavior and your circumstances through things that don’t directly say you have those traits or tendencies is increasingly possible. You know, we’re seeing commercial firms identify the likelihood that you will want a certain product through indirect behaviors, right? And it’s machine learning thats saying people who act in these ways tend to like this product. And we’re not even aware of this tendency ourselves, right? And all of these things can be threats to our privacy, our freedoms, through the surveillance state that are not unique to genetics. And the fact that genetics can make you identifiable through distant relatives is just one more instantiation of that threat and concern that we all should be aware of and, again, calls for the need to think very seriously among our elected representatives about the types of regulations and laws and protections that need to be put into place just so that this ability is not misused.

Sarah Sharman  20:04

I think you could argue that we invite this type of surveillance into our lives because it offers us certain benefits. Looking at my DNA could help predict whether I’m going to have health problems in the future. And I love that I can turn my lights on just by talking to Alexa. But what if this technology starts to predict our behavior? And this has actually been shown. In the 2000s, Target actually predicted a woman’s pregnancy by looking at her shopping habits online. This is great for marketing. But is it good if we’re using it to predict future criminal behavior?

Angelo Della Manna  20:37

In that first five to ten-year period, we compiled a lot of objective data that showed when we got a cold hit. So, when we identified the perpetrator in a previously unsolved sexual assault case, almost 80% of the time that individual went into the database for a property crime or a burglary conviction. And so, what that showed, which was consistent with our experience in working 1000s of cases, is that sexual assault is oftentimes a crime of opportunity. So, you have an individual, for example, that may be struggling with a drug addiction. And so, they’re breaking into apartments to try and find electronics to then go to a pawn shop to get money so that they can support their drug habit. And so, they break into an apartment on Monday, and they break into another apartment on Tuesday, and they may break into a third apartment on Wednesday. And now they come across a co-ed who’s sleeping in between classes in the middle of the day. They didn’t know that the individual would be there. But that opportunity presents itself, and in that example, when it does, they oftentimes would escalate to sexual assault. And if they had provided a sample to the DNA database for the burglary conviction, if and when they escalated to sexual assault, we would then identify them by searching CODIS because we had their sample database for the burglary conviction.

Chris Powell  22:17

Sarah, I don’t know if you remember the movie Minority Report. But in that movie, there was a whole division of law enforcement that dealt with pre-crimes where they would arrest people before they committed crimes. Now, we don’t have pre-crime divisions, but it is interesting what Angelo is telling us that forensic experts readily admit that there’s some sort of a connection between past criminal behavior and future criminal behavior.

Sarah Sharman  22:43

If you follow true crime stories like I do, you will have probably heard plenty of examples of criminals who escalate from a menial crime to more serious ones. But what about the burglar who just stays a burglar and later gets profiled and accused of a crime they didn’t commit? While examples like these raise a lot of questions, there’s some really great benefits that have come from the use of DNA and forensics, one of which is proving innocence of those wrongly accused of crimes.

Angelo Della Manna  23:08

The DNA testing that is that goes on each and every day is cutting edge and Alabama. And that’s a great thing that we take a lot of pride in is that we have certainly the great ability to not just identify perpetrators of violent acts across 1000s of cases a year, but also to exclude individuals who are falsely accused. That is the true power of forensic DNA testing. And it’s often overlooked. But it’s important to me that people recognize that objective, independent forensic DNA testing is exactly what an individual who was falsely accused would want to happen, right? Because that is an independent, objective way to say you are not the source of a potential crime scene stain in a particular case.

Chris Powell  23:59

DNA is powerful. It can make sure that the bad guys go to prison for a really long time. And it can also exonerate those who are falsely accused. When we sat down with Angelo, we were curious and asked him to give us an example of a case that was solved using DNA technologies. Now, in the very beginning of this episode, we gave you a warning that we were going to share something that included a description of sexual assault and murder. It’s happening right now. So, if you would like to skip ahead, please do so. This will take about three minutes of time, and you can join back in with the episode. But here’s Angelo to tell us of a cold case that was brought back to life through DNA technology.

Angelo Della Manna  24:43

So, we had a rape-murder case of an elderly lady who was a widow and lived alone in the Smithfield community outside of Troy, Alabama. And was just a lovely old lady that the community just adored. And it was very shocking to that community in the early 90s when she was brutally raped and murdered. And for years, as law enforcement would develop suspects and submit samples, we had our crime scene stains that were recovered, and we had DNA profiles or evidence recovered from her body at autopsy, demonstrating that a sexual assault happened. And as law enforcement would develop suspects for 15 years, we continued to do DNA testing on the submitted suspect. And so, this went on, and we continued to test suspects. Almost 100 different suspects were submitted in this particular case. And we continue to exclude them saying, that’s not the perpetrator, it’s not the source of the semen, or the source of the crime scene staying recovered from the victim’s body.

Angelo Della Manna  26:06

And one of the great allowances in our DNA database law is not just that individuals had to provide a sample if they were convicted of a felony but also if they had ever applied for a pardon. And so, this is one of these examples where an individual 20 to 25 years after the offense wanted to have his civil rights restored. And in Alabama, that typically happens for one of two reasons: they want to have the ability to vote, or they want to have the ability to purchase a firearm. And if you were convicted of a qualifying offense in the way the Alabama law was written or you were incarcerated for a qualifying offense on or after May 6 of 1994, then when you apply for a pardon, you’re required to provide a DNA sample. And so, this individual showed up at a probation office wanting to apply for a pardon. He filled out the paperwork and the probation officer in Central Alabama said there was a new law and we will process your paperwork for application for a pardon but you have to provide a mouth swab and a DNA sample to the Alabama Department of Forensic Sciences. And so, thankfully, that probation officer swabbed him right then that day. And she had asked him to come back in a couple of days to finalize the paperwork and sign all the pardon application, but he never returned. And that sample was collected and sent to our laboratory. And I still remember the feeling today when we conducted that search, and it hit to that unsolved case. I remember the case number like it was yesterday. And I thought, I cannot believe we have solved it. We’d known her as Miss Edna. It was Miss Edna’s case. And, it’s just another great example of the types of cases that we feel very responsible to play an important role in trying to solve and it happens every day, you know, every victim is important, every case is important. And our role in that process is to conduct the highest quality forensic testing available using the latest technology so that we can develop a DNA profile, enter it into a lawfully protected database to try and identify repeat offenders. And you know, we’re very successful in doing that.

Chris Powell  28:59

Sarah, we’ve covered a lot of ground in this episode. And we’ve asked a lot of really important questions. But I’m curious where you land on this, right? So, from a continuum from using our information to catch the bad guys to protecting our privacy and not using that information to catch bad guys? Where are you on all this?

Sarah Sharman  29:16

I’m afraid it’s not so black and white. So obviously, I think it’s great that we’re catching serial killers, and we’re solving cold cases, giving people the peace of mind that you know, their family member’s killer has been caught.

Chris Powell  29:29

I think you’re right. This is something that is not as clearly defined as what many of us think, but I am grateful for those, like Angelo and Dr. May, who are thinking through these questions and helping us wrestle because this is not something that’s going to be settled once and for all. We’re going to have to continue to wrestle as new cases are being presented, and we find ourselves in new scenarios. We all have to stay curious and keep asking these questions.

Sarah Sharman  29:56

Thank you for joining us for this tiny expedition into the ethics of DNA technology in the forensic space.

Chris Powell  30:02

Next episode, we’ll embark on a journey to Northern peat bogs, where we’ll discover how researchers are harnessing the power of genomics to tackle the pressing challenges of climate change.

Sarah Sharman  30:11

Tiny Expeditions is a podcast about genetics, DNA, and inheritance from the HudsonAlpha Institute for Biotechnology. We’re a nonprofit research institution in Huntsville, Alabama.

Chris Powell  30:21

We’ve got a campus full of scientists doing public research alongside companies developing products and services, all with one aim to translate genomic discoveries into real-world applications that make for a healthier, more sustainable world. And includes everything from cancer research to agriculture for a changing climate.

Sarah Sharman  30:38

If you find our podcasts interesting, please rate review, like and subscribe on the podcast app of your choice. And tell someone that you listen to this interesting little story about genetics. Knowledge is better when you share it.

Chris Powell  30:50

Thanks for joining us!