QUOTE OF THE DAY: "“It’s the entire case,” Nilo’s attorney, Rosemary C. Scapicchio, said in a hearing Thursday to get prosecutors to turn over more evidence and information about how police identified him from a match on an ancestry site and then obtained a sample of his DNA without his knowledge or permission."
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PASSAGE OF THE DAY: "Most famously used to help identify the Golden State Killer, the method involves running evidence from an unknown suspect against DNA people submit to ancestry sites such as GEDmatch and FamilyTreeDNA, hoping for familial matches that point police to a suspect. The results aren’t, on their own, probable cause, so police must get other evidence, such as the suspect’s DNA, sometimes by surreptitiously snagging a discarded cup or drinking straw. In Nilo’s case, Scapicchio said police had no other reason to suspect her client, nor did they have a warrant to conduct the genetic search and match, the use of which she said is unresolved in Massachusetts courts “Massachusetts courts have not yet considered the constitutionality of familial searching,” Scapicchio added in a court filing. “The warrantless search of familial DNA prior to arrest or indictment implicates both the United States Constitution and the Massachusetts general laws.”
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STORY: "Defense looks to challenge genealogy approach in case of Matthew Nilo, accused of sexually assaulting eight women in Boston," by Staff Reporter Sean Cotter, published by The Boston Globe, on September 10, 2024.
GIST: "It looks pretty straightforward on the TV crime shows: Police obtain DNA evidence from a crime scene, run it through their computers, and up pops a surefire match.
However, one type of DNA work that’s relatively new, known as investigative genetic genealogy, is more complex and indirect, requiring police to conduct a kind of connect-the-dots among a pool of possible genetic matches.
Now, such genealogy searches are facing a stress test in the courts, with the most high-profile challenge in Massachusetts coming from attorneys for Matthew Nilo, who is accused of sexually assaulting eight women in Charlestown and the North End in 2007 and 2008. They argue the method violated their client’s legal rights against unreasonable search and seizure.
“It’s the entire case,” Nilo’s attorney, Rosemary C. Scapicchio, said in a hearing Thursday to get prosecutors to turn over more evidence and information about how police identified him from a match on an ancestry site and then obtained a sample of his DNA without his knowledge or permission.
Most famously used to help identify the Golden State Killer, the method involves running evidence from an unknown suspect against DNA people submit to ancestry sites such as GEDmatch and FamilyTreeDNA, hoping for familial matches that point police to a suspect. The results aren’t, on their own, probable cause, so police must get other evidence, such as the suspect’s DNA, sometimes by surreptitiously snagging a discarded cup or drinking straw.
In Nilo’s case, Scapicchio said police had no other reason to suspect her client, nor did they have a warrant to conduct the genetic search and match, the use of which she said is unresolved in Massachusetts courts.
“Massachusetts courts have not yet considered the constitutionality of familial searching,” Scapicchio added in a court filing. “The warrantless search of familial DNA prior to arrest or indictment implicates both the United States Constitution and the Massachusetts general laws.”
It’s common for newer investigatory techniques to be put through the wringer in this way, where lawyers test how they play, both in front of judges in pretrial rulings and before juries whose “CSI”-informed expectations might not line up with reality.
The general trajectory for new scientific investigative techniques, legal experts say, is to slowly make their way into court proceedings, get challenged, and then, by either a body of decisions or a single case where a higher court stakes out a clear position, the law around them becomes settled.
“It becomes first, discretion of the trial court, and then you take it upstairs,” said Brad Bailey, a longtime defense attorney and former prosecutor. “If it gets up to the [Massachusetts Supreme Judicial Court] and the SJC makes clear this is established science, they can set a pretty bright line.”
So far, only Maryland and Montana have adopted laws governing the use of investigative genetic genealogy, with both requiring police obtain a court order before undertaking a DNA match.
Legal and forensic experts said to think of the information from forensic genetic genealogy as an off-the-record tip to police. It’s not enough for an arrest, but helps create a list of suspects for police to investigate further; they must still find other clues, such as putting the suspect in proximity to the crime scene.
After that, authorities likely would seek to run a full DNA test on the person — possibly with DNA obtained surreptitiously — to see if they are a match.
“It’s good science,” said Ann Marie Mires, head of the forensic criminology program at Anna Maria College. Though now in court, “It’s being put through the paces, like happens with all new scientific techniques.”
Around the country, the process has broadly weathered court challenges. In Massachusetts, a judge in Middlesex County in April ruled against Christopher Aldrich, accused of a rape in Acton in 2013, who had sought to get evidence stemming from investigative genetic genealogy thrown out.
The judge wrote DNA matching is like a “valid search in which two people reside in a home together and only one gives consent to law enforcement to search the home.” Aldrich, who pleaded not guilty, is scheduled for trial in December.
Nationally, there appear to be few cases in which appellate courts have ruled on the practice. Jennifer Lynch, general counsel for the Electronic Frontier Foundation, a civil rights group that has sought to curtail this type of genetic investigation, said it’s often used in “these very splashy serial crime cases” like the Golden State Killer.
“That makes people think the ends justify the means, and that’s not how our criminal justice system should work,” Lynch said. “Should we allow the government to have access to people who have no contact with the criminal justice system?”
Much about the genealogy search remains unclear in the Nilo case, as little of that part of the investigation has been publicly disclosed. On Thursday, a Suffolk Superior Court judge said prosecutors need to turn over more evidence about it by October, or he expects Scapicchio will file a motion to dismiss the charges. The prosecution said it’s trying to get more information from the third-party contractor who conducted the investigation.
Federal agents working with Boston police made their move at a private corporate dinner, seizing items he used that evening, including utensils and glasses. A cocktail glass gave law enforcement the DNA hit they’d sought, matching evidence taken from one of the rapes in Charlestown, the defense wrote.
In June 2023, authorities charged Nilo with rape. Over the following months, prosecutors added other charges, saying they connected him to additional attacks.
Nilo has pleaded not guilty to all charges. As evidentiary issues in his case continue to drive delays, there is no trial date scheduled.
As for whether authorities had the right to seize Nilo’s cocktail glass, the devil is in the details, said Suffolk Law professor Christina Miller, a former assistant district attorney: Were police allowed to be at this private party? How big was it, and what was Nilo’s expectation of privacy? And, did he “abandon” the items by leaving them or throwing them out, making them fair game for authorities to snatch?
“At any point if there was an unconstitutional action, then everything else can become fruit of the poisonous tree” and not admissible as evidence, Miller said.
Mires, the forensics expert, said any problems with forensic genetic genealogy would be over how law enforcement use it. If investigators are over-reliant on it to the exclusion of other evidence, she said, the defense can argue the police investigation was insufficient.
“It’s not the science. It’s how we’re going to be using it,” Mires said.
Lawyers for Marvin “Skip” McClendon Jr. made that argument during his trial in December for the death of 11-year-old Melissa Ann “Missy” Tremblay, a three-decades-old cold case in which investigative genetic genealogy helped lead police to accuse him of murder.
They said police “omitted” investigatory steps, inappropriately focusing on McClendon despite evidence they said pointed to other men.
Ultimately, the jury could not reach a verdict, and the judge declared a mistrial, according to court records.
The Essex district attorney’s office declined to comment, citing a retrial of McClendon scheduled to begin Sept. 30.
McClendon’s lawyer, C. Henry Fasoldt, said in an interview he believes investigative genetic genealogy can be a useful tool. In the McClendon case, he argues it was “misanalysed and then misinterpreted.”
“I think it was misused to the point of creating a really significant injustice,” he said. “They can and they should be used. They should be used appropriately.""
The entire story can be read at:
https://www.bostonglobe.com/2024/09/10/metro/matthew-nilo-rape-dna-geneaology/
