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Family DNA Used To Track Down Suspect In 'North County Creeper' Case

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February 23, 2015 1:18 p.m.

GUESTS:

Michael Semanchik, staff attorney, California Innocence Project at California Western School of Law in San Diego

Greg Hampikian, , professor of biology and criminal justice, Boise State University

Related Story: Family DNA Used To Track Down Suspect In 'North County Creeper' Case

Transcript:

This is a rush transcript created by a contractor for KPBS to improve accessibility for the deaf and hard-of-hearing. Please refer to the media file as the formal record of this interview. Opinions expressed by guests during interviews reflect the guest’s individual views and do not necessarily represent those of KPBS staff, members or its sponsors.

Our top story on Midday Edition, for the first time in San Diego County, a suspect has been arrested as a result of a familiar DNA investigation. 27-year-old Gilbert Chavarria is arrested in a series of young girls being molested in their homes at night. DNA was collected at the scenes but it was not in the database. What was in the database with the DNA of a close male relative and by using that, police were able to track down Chavarria.The use of familial DNA has been deemed as a tool for last resort for investigators in California, but even so, some say it raises troubling constitutional and privacy rights issues. Joining me is Michael Semanchik, he's a staff attorney with the California innocence Project at the California Western school of Law in San Diego. Oh come to the program.
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Thanks for having me.
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We invited representatives from the San Diego State Department to join us but they declined. Michael, let's first establish more about the nature of these crimes. Because the fact that they were sexual in nature was one of the reasons a familial DNA search was allowed. Police call these the creeper series of home victimizations. How many girls were victimized?
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My understanding is that there were six different victims, four separate incidences. And, they ranged in age from 5 to 15 years old.
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This took place in Escondido and San Marcos. What did the attacker do?
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It sounds as if, from the reports that I've read, he would sneak in, through open windows, on nights when it was hot, once he got into the victims homes, he would molest the children, sometimes he would cut pieces of their pajamas away or cut them open to get to be able to molest these kids.
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The police and sheriffs department collected DNA at the scene of the assaults, but they did not get a hit in any database. So, they asked for permission to widen their search by using familial DNA. Tell us what that means, Mike.
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So you know, the DNA database in California is the biggest state database in the country, a familial search will allow you to look for not the exact person, but someone pretty close to them. Someone that is related to them. Once they come up with potential suspects, they can then build a family tree, figure out who is related to the person that is in the database, and start to, you know, follow these potential family members until they can come up with a DNA sample for the additional members of the family.
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Joining me is Greg Hampikian, Prosser of biology and criminal justice at Boise State University. Welcome to the program.
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Thank you for having me.
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I think we've all been told that DNA can identify one person out of 1 billion. How similar is it among family members?
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Well, so you know, I share 50% of my nuclear DNA with my children, and 50% with each of my parents, and it gets quickly diluted that nuclear DNA, after about four generations, it's very hard to trace relatives. But, with males, we can look at the Y chromosome in particular, and we can follow that very carefully. My labs worked on the population for hundreds even thousands of years, you can follow that Y chromosome. So in California, in the cases that I am familiar with, like the Grim Sleeper and this one, they also confirmed with a Y chromosome test that that is a chromosome that is not going to change, or be diluted one half with each generation. That is constant. For the female side, if you look at females, we can look at the mitochondrial DNA, mitochondria, these little circular DNA, maybe 1000 per cell, we get them from our mothers in the egg, so we can follow the female lineage that way and that also does not get diluted or recombined. So there are different types of DNA to use but it's a very good test, the science is rather basic, it's what the family tree and others use.
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Now when scientists get a familial DNA hit, does it indicate how close the original DNA is to the match?
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Yes. Yeah. I mean, numerically it shows us how close, how much it has in common with the evidence sample. But more importantly, California has developed its own software through the DOJ to determined relatedness, so to tell if it is a first generation relative or if it is further apart. So, they have some idea of how far apart the hit is from the evidence in California and supposed to be, as I understand with the rules, they are only going to look for first-degree, that is parent, father to son, that type of, you know, 50% dilution of the DNA, so one generation.
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Now you know, of course to complete the match, the police at some point have to obtain a sample of DNA from the suspect. But, is a familial DNA match enough to compel someone to give a DNA sample?
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While I mean, that's a question of law. You know, in England I've been involved with cases, they have been doing this since 2003 in England, and by 2011, they had about 160 investigations, 13 convictions. And a friend of mine was involved, she had been in altercation after drinking a bit too much, they had her DNA, one day she gets a knock on her door a couple of years later and the police say, we know you're not involved, there has been a murder in your hometown, your DNA is a familial match, will you draw your family tree? And she did . I asked her, you did not get lawyered up? She happens to be a lawyer. She said no, if there's a murder in my family, I would like to know it. So I think different people have different reactions, and in this case, as is done commonly, they got discarded DNA, and were able to do the match, you might remember the Bind Torture Kill, the BTK killer, they got his daughter's Pap smear to be able to do the magic of the got a court order for a Pap smear. This kind of technique has been used for a while. California has just made it a rather rigorous set of standards to initiate this process.
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Thank you so much for your DNA expertise. I've been speaking with Greg Hampikian, process or of biology at criminal justice at Boise State University. Thank you so much, Greg.
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Thank you.
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Back to Michael Semanchik, California state attorney with the instance project, going to post this question to you. It's a family DNA enough sufficient probable cause to compel the suspect to give up his DNA?
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To compel him to give it up? You know, I don't know if that means that criteria. And you know, in this case, they do not have to compel him at all. They follow their typical guidelines, which is if they want to get DNA, the Supreme Court has said that you can pull DNA from people's trash, anybody that throws a cigarette out the window, for instance, I don't think they said in this particular case how they got his DNA, but it was something that he had discarded. If they happen to be following him and he throws the cigarette out, that the pretty easy thing they contest and compared to the items that they have from the crime scene.
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I think we've all seen not on movies and TV quite often, that the police would wait to get a potential suspect to touch anything, to drink out of a cup or something like that, to test the DNA. But, Mike, is this whole procedure troubling to you, from a constitutional or privacy standpoint?
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I mean, from a privacy standpoint you have to think about it like this. They have this massive database, millions and millions of people around the country are in this database. And, they have the ability to get to people that aren't in the database. So in other words, if one of my brothers commits a crime, and they are subsequently convicted and their DNA ends up in [ Indiscernible ] that could somehow comeback against me. Proponents of familial searches say if you're not doing anything wrong? Karen that's often a position that you here, you know, from law enforcement. But, the fourth amendment wasn't created, it was not crafted by the founders to only protect those that were law-abiding, it was to protect all citizens. The privacy concern arises in this situation because personally the defendant in this case was not in the database and had to go through is relative.
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What protections exist now that would prevent law enforcement to just keep on going to the database and do these familial searches for just about any reason they wanted to?
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While, California, the Atty. General, has set up some pretty rigorous standards for when they can use this type of test. It has to be a serious crime, so a rape case or in this case, child molestation case, murder cases would qualify. So, they can't just use it on every case. They also require that in order to use this, the investigators have to show that they are out of leads, they have nothing else that they can use to try to find a suspect in the case. So, it is limited in scope, and I think that, you know, San Diego has only used it, maybe about a dozen times since 2010. So, it's not something wide used by law enforcement currently, but, that is not to say that they could change their direction or the Atty. General. could say , you know, we want to use this more often, because there is currently not a law in place to prevent them. The only real thing to prevent them right now would be the fourth amendment. And in this case, I'm not sure that he has a fourth amendment claim, and the difficulty arises because they did not have the defendants DNA, they did not test it, they tested his family members. So the question would be, does the defendant have standing to challenge law enforcement's use of his family's DNA? And, that is something that a court would presumably have to make a decision on, but you know, standing, in this case, at least in my opinion does not look like it could exist.
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Did the San Diego County Sheriff's office and Escondido police made public that this is the way that they tracked on the suspect?
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I don't think they had to come on and say this right off the bat. I mean, certainly is going to have to come up in discovery during that, you know, pretrial motions and whatnot. Which I think, you know in this case, is, you know, bravo to the law enforcement for coming forward and announcing how they were able to make this connection. I mean, there were other ways that they could have gone about it that we've seen that I would recall sort of deceptive practices by other law enforcement agencies around the country where they are hiding behind what they will call confidential informants, and try to keep secret of the technologies that they are using, stingray, for one, the license plate tracking system in place in San Diego and other places, where the kind of hide behind this fake confidential informant. So you know, bravo for them for coming out and saying, you know, this is the way we got it, yes, it's controversial, we have things in place to address it.
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Under what circumstance do you think the use of familial DNA matching would be a good thing in law enforcement?
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I mean in this case, it's not as if this isn't a good thing. The suspect is no longer on the street, no longer able to commit crimes against children. So, you know, it is a good thing. It's just, we have to do a balancing act where we have to say, you know, keep law enforcement in check, do not allow them to, you know, get further down the road and expand upon their use of this, and that's always going to be an issue anytime you have any kind of technology or ability for law enforcement to pry into the individual's lives. And so, you know, is there a time when it's good? Yeah, I think in this case it's absolutely good that this person is no longer on the street but at the same time, we have to consider privacy rights of other individuals in the community.
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Know more about DNA, there was a bill introduced last week in a Sacramento that would expand DNA collection in California from only felony convictions, people convicted of a felony, to some people who are convicted of a misdemeanor. Do you think that's reasonable?
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You know, I think it's a tough thing to consider. I mean, for somebody that is -- and I have not seen the specific crimes of their outlining with misdemeanors, but, with somebody that has been convicted of a DUI, does their DNA belong in the database? Does somebody convicted of, let's say, possession of a large amount of drugs, does that warrant putting their DNA in the database? And I think civil liberties, organizations would argue no, that we should keep our database in check, it should be only save for those people committing violent crimes. And, law enforcement I think would have it the other way where they were to say, let's get it as big as possible, and that way, anybody that commits any crime, we just run a quick search and can figure out if they left some genetic material behind.
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Last question, the California innocence project relies on DNA evidence in some cases to prove their client innocent, and in some cases the DNA tested things other people to the crime . so how is that different than what law enforcement is doing here?
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What you know, we've actually never use familial DNA, a familial search. So it's different in that regard. But you know, our big thing is that we don't have access to CODIS. In fact, nobody does except for the Department of Justice. And so, problems arise where we do an investigation, we come up with a third-party suspect in a case, for example, the Uriah Courtney case we exonerated in 2013, it took quite a long time, and we had the district attorney working with us, but law enforcement and the Department of Justice, well, law enforcement in San Diego was not willing to take that third-party profile and run it in CODIS to see if any suspects would come back. So we had to go to orange county and ask the Orange County Sheriff's Department if they would be willing to do it for us and they did which ultimately resulted in a hit. And so you know, why should it be just the Department of Justice toy to play with? Why not give access to additional people? And so, that is kind of our position on it.
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Okay, I've been speaking with Michael Semanchik, staff attorney with the CaliforniaInnocence Project. Thank you for speaking with us.
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Thank you for having me.