Sheriff Jeopardizes DeAngelo Case by Cutting Corners

We are all glad DeAngelo was caught.  As the East Area Rapist, there is a shared community interest in seeing that this monster suffers a long and agonizing demise.

But Sheriff “Shoot from the Hip” Scott Jones has jeopardized this case by cutting corners. Once again, the guy who cannot stay out of scandals, has found himself in the middle of yet another one because of ego and poor decision making.

But in criminal cases, the manner in which evidence is collected can be everything.  Illegally obtained evidence can be thrown out under the exclusionary rule which states “evidence collected or analyzed in violation of the U.S. Constitution is inadmissible for a criminal prosecution in a court of law.”

Despite a decade to do so, Scott Jones had never set a formal policy on how to proceed with instances of unsolved cases and methods for utilizing DNA evidence.  So detectives had no departmental protocol to follow, and were left to devise a strategy on their own.

Without probable cause, Sheriffs detectives created a false ID to access the database under fraudulent means, and then uploaded DNA that was not theirs, and were not authorized to do so as required by the terms of service for  Detectives and the Sheriff had publicly admitted they “just wanted to see” what they could find (i.e. no probable cause to proceed).

Illegally obtained DNA evidence has been thrown out by many other courts due to Fourth Amendment protections against invasion of privacy, and Fifth Amendment protections against self-incrimination (using elements of your body as witness against yourself by way of DNA information).  The exclusionary rule is designed to protect privacy rights, with the Fourth Amendment applying specifically to government officials, ever since Burdeau v. McDowell, 256 U.S. 465 (1921).

To proceed, detectives violated the confidentiality standards of the website in order to gain access by deception and fraudulent means by creating a fake identity and certifying the (suspect’s) DNA was actually their own personal DNA.  Without this initial fraud, detectives would not have obtained the access to the DNA database, the DNA match, and the identity of the East Area Rapist.

According to Erin Murphy, a law professor at New York University and expert on DNA searches, using a fake identity might raise questions about the legality of the evidence.  Users of the website only consented to having their DNA uses for genealogical purposes, and not law enforcement investigations.  Consent was never given for law enforcement use.

But detectives tricked GEDMatch and its users, and not DeAngelo.  Right?

Detectives did trick GEDMatch and its users.  An argument can be made that Scott Jones’ department directly violated the privacy of the relatives of DeAngelos who submitted their DNA which was used by detectives in their investigation.

But is that enough for DeAngelo to raise Fourth Amendment claims on behalf of his relatives?  Probably.

In Singleton v. Wulff, 428 U.S. 106 (1976), the Supreme Court held that the intimacy of relationship between the third party (i.e. GEDMatch, and DeAngelo’s relatives), and the accused, may establish standing for the accused to assert constitutional protections over that third party.

Apparently detectives didn’t read what they were agreeing to when they clicked “Accept” and accessed the site.  According to Blaine Bettinger, an attorney for GEDMatch, “The purpose was to make these connections and to find these relatives.  It was not intended to be used by law enforcement to identify suspects of crimes.”

According to the website’s Terms and Policy Statement “Results presented on this site are provided ‘as is’ and no representations are made regarding their accuracy or usability. Changes in software and analysis tools may be made from time to time that could change results from those previously provided.”   So, without having first obtained independent verification by a third party expert, the Sheriff lacked authority to verify those results as accurate, and now the People will be faced with going back and trying to prove accuracy as the basis for their developed conclusion which created their probable cause.

All the detectives had to do is go to a judge, and get court approval to proceed.  Then, armed with that court order, enlist the opinion of a DNA expert and coordinate efforts to access the database and then verify results.

Cutting corners could set a serial rapist and serial murderer free because Scott Jones couldn’t follow proper law enforcement procedures.