Blood ties

Morgan Harrington, 20, went missing after attending a concert in Charlottesville in Octoberof 2009. Her remains were found early last year on an Albemarle County farm, and DNA evidence police obtained during their investigation yielded no direct matches. Her father Dan hopes that an announcement last month from Gov. Bob McDonnell authorizing Virginia's Department of Forensic Science to use "familial DNA searching" means that police will be one step closer to locating her killer.

The technique, however, is controversial. Most states allow it in exceptional circumstances but some, including Indiana and West Virginia, don't because of concern that it violates privacy and could lead to racial stereotyping. Critics call that "guilt by genetic association."

The method allows law enforcement officers to use DNA from relatives to track suspects who have left a genetic fingerprint at crime scenes. Familial searching is usually only used in investigations of violent crimes when the suspect's genetic material reveals no direct matches in a DNA databank. Because DNA is similar among family members, software can find partial matches that may lead law enforcement to the relatives of the perpetrator.

"It is vital that our law enforcement agencies have every available tool at their disposal to protect public safety and investigate the most violent crimes in the commonwealth," McDonnell said.

Virginia joins several other states that, in some form, use familial DNA, including California and Colorado. "It has the potential to be an outstanding investigative tool for law enforcement," said Rick Conway, an assistant commonwealth's attorney for Prince William County. Conway had spoken before the Virginia Board of Forensic Science in 2010 calling for the use of familial searching in the then-unsolved East Coast Rapist case. When suspect Aaron Thomas was apprehended earlier this March, one investigator suggested that the East Coast Rapist case could have been solved years earlier if familial searching had been used.

In July 2010, California officers used familial searching to identify a suspect in the "Grim Sleeper" case. Lonnie Franklin, Jr. was arrested and charged with murdering at least 10 people over a 25 year span. The case was broken when Franklin's son was swabbed for DNA, and his sample came back as a partial match of crime scene DNA. Police then obtained DNA from a cup Lonnie Franklin Jr. used at a restaurant and identified him as the perpetrator.

The use of familial DNA is the subject of debate in most states across the country. A 2006 FBI interim policy allows individual states to decide whether to follow partial matches accidentally discovered or even to search for such partial matches deliberately. Some states, such as Colorado where Denver District Attorney Mitch Morrissey fought for years to use the method, embrace the use of direct familial searching.

Natalie Ram, a Greenwall Fellow in Bioethics and Health Policy at Johns Hopkins and Georgetown Universities, wrote in a 2009 report that many states were exploring the option of familial searching. While proposals to use the method have failed in states such as West Virginia and Indiana, other states make allowances for the use of familial searching on a case-by-case basis or when a partial match is accidentally discovered.

"The results of the original research conducted for this report reveal a startling lack of transparency in rulemaking," Ram wrote in DNA Confidential: State Law Enforcement Policies for Genetic Databases Lack Transparency. "Of the thirty-two responding states that have some policy or practice regarding partial match reporting or familial searching, at least 12 have left these policies unwritten."

Sonia Suter, a bioethics expert and Professor of Law at George Washington University, said that some people may become so excited with the method's crime-solving potential that they ignore possible risks. "Obviously you can get more information, so people see that as positive. But there's a tendency to focus on all the benefits it gives law enforcement without recognizing that it raises all sorts of privacy concerns."

Other critics worry that the method may infringe on the individual privacy of the relatives of criminals. Genetic counselors have urged caution, warning that law enforcement may potentially disrupt families or spill family secrets by revealing blood relations or prior convictions and arrests. Others are concerned over the storing of DNA samples from those exonerated of charges and from those related to suspects.

"Familial DNA searches are still in their infancy. Our objections are not so strong if they are used infrequently and only for the most difficult to solve violent cases," said Kent Willis, Executive Director of the ACLU of Virginia. He worries that the Virginia's decision may be a foot in the door for using the technique in routine investigations. "Everyone agrees that familiar DNA searches violate individual privacy--perhaps not in an unconstitutional way--but they do make suspects of individuals solely because they are related to someone who has committed a crime. This kind of guilt by genetic association, as I like to call it, has rubbed a sufficient number of law enforcement and elected officials the wrong way that is has already been banned in a couple of states."

"I think it raises privacy concerns, but I think a lot of that depends on how it's used, if protections are in place, and how the overall DNA testing works in the state," said Suter.

"Racial justice" is another concern. Because a disproportionate number of minorities are arrested yearly, states would place a disproportionate amount of surveillance on their minority populations. Maryland banned the use of familial DNA searching in 2008 because of racial justice concerns.

Stephen Mercer, chief of forensics for Maryland's Office of the Public Defender, said that familial searching "puts under surveillance a group that is already stigmatized by the criminal justice system."

Because of these concerns, McDonnell noted that familial searching "must be used cautiously and sparingly."

Peter Marone, director of Virginia's Department of Forensic Science, said that familial searches will be used rarely and only in investigations of violent crimes such as murder or rape. The state is currently drafting guidelines that will limit the use of familial searching.

"The guidelines are where we are starting," said Conway. "We're going to be as careful as we can."

The Associated Press contributed to this report.

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