On April 24, the suspected “Golden State Killer,” who is alleged to have committed 12 murders and more than 50 rapes in California between 1976 and 1986, finally was captured.
Prior to his arrest, Joseph James DeAngelo, now 72, had been leading a deceptively normal-looking retiree’s life in the Sacramento suburb of Citrus Heights. DeAngelo owns a boat, a motorcycle and two cars — one a Volvo. His clean, beige stucco house in what a nearby resident described as a “quiet, sweet, boring neighborhood” is neatly landscaped with sod, wood chips and decorative rocks. He worked as a police officer in two California departments, Exeter and later in Auburn, where he was fired following his arrest for stealing dog repellent and a hammer from a drug store. The dates of some of his crimes overlap with his police employment.
The Golden State Killer was infamous for his cruel and sadistic rituals. He would, for example, after tying up and raping a victim, sit next to her, place a teacup and saucer on her stomach and threaten to kill her if the cup rattled. Given the horrific crimes, can we all agree that his arrest is nothing other than a blessing?
Well, as University of Washington ethicist Malia Fullerton, whose work focuses on DNA forensics, said, “DeAngelo was a horrible man and it was good that he was identified, but does the end justify the means?” In other words, is law enforcement’s surreptitious use of a popular non-law enforcement DNA database without permission or a warrant justified by the result — DeAngelo’s arrest? That is the question, and here are more relevant facts.
Paul Holes, an investigator with the Contra Costa County district attorney’s office, worked this case for decades without tangible results. Then in 2017, after he began to explore genealogy as a means to solve this case, the investigator discovered a pristine DNA sample from a Golden State Killer murder in Ventura County that had been sitting in a freezer for 37 years. Thanks to a punctilious medical examiner who believed in creating forensic redundancies for later use, it was preserved, just in case.
Holes sent that DNA sample to GEDmatch, a genealogy website with a database of roughly one million DNA profiles, designed for persons searching for family connections. The DNA submission from Holes showed significant generic similarities to distant relatives of DeAngelo’s. The family tree, also available on the site, allowed law enforcement ultimately to focus on Joseph James DeAngelo, who matched the age and other characteristics of the Golden State Killer.
Police then secured a recently discarded and abandoned item with DeAngelo’s DNA on it. (Details of this part of the story are not yet public.) DeAngelo’s DNA matched the crime-scene sample. The police had their man.
In order to access the GEDmatch database, the detectives needed to lie about whose DNA was being submitted and whether they had permission to do that. The investigators created a fake profile with a pseudonym to which they added the misrepresentation that the purpose was to research their family history.
The legal team for law enforcement concluded that all this was OK. And GEDmatch agrees because its website, it says, warns users that their submitted DNA could be used for purposes other than genealogy. As for the police alias, GEDmatch specifically permits use of a pseudonym.
For these reasons, if challenged, the prosecution will point out that the persons who submitted their DNA sample made the results available to all users. There was, in effect, consent, and therefore, no invasion of privacy. And, in any event, the person or persons whose privacy arguably was invaded was not Joseph DeAngelo.
Besides, the prosecution will argue, the police are not required to tell the truth when conducting an undercover investigation. Quite to the contrary, deception is the mother’s milk of every undercover sting.
Understandably, almost unanimous appreciation and approval have greeted this novel, creative and successful sleuthing. That said, most customers of genetic testing services, such as 23andme (five million users) and Ancestry.com (10 million) never imagined that their DNA would be mined by prosecutors. True, both of these services have stated that they never voluntarily supply data to law enforcement and in this case didn’t, but a warrant issued by court or access achieved by a skillful hacker could upend that policy in a hurry.
The novel nature of this warrantless police search brings this case into somewhat uncharted legal waters. Courts will decide the legality of the investigation. But even assuming a judicial imprimatur, that result does not answer ethicist Fullerton’s question.
We are profligate in our online sharing of personal, sometime very personal, information that allows our privacy to be ripped off and ripped up. Witness, for instance, the recent Cambridge Analytica fiasco, where intimate information of 75 million Facebook users was disseminated without permission.
This is but one example of how our cavalier attitude toward the ever-increasing electronic evisceration of our privacy makes the famous quote from the comic strip Pogo on the first Earth Day resonate ever more loudly: “We have met the enemy and he is us.”
Bill Newman, a Northampton lawyer, writes a column published the first Saturday of the month. He is director of the Western Regional Office of the ACLU of Massachusetts. He can be reached at opinion@gazettenet.com.