Suspect in closed Minnesota case alleges constitutional violations in DNA database search

Public defender JD Schmid said law enforcement, in cooperation with Parabon NanoLabs, searched two databases without warrant or consent from people whose genetic information was disclosed, in violation of the law of Minnesota and state and federal constitutions.

Schmid represents Michael Allan Carbo Jr., 53, who first appeared in person in court on Wednesday, June 30, nearly a year after he was first charged in 1986 with the rape and murder of Nancy Daugherty, 38 years old.

The Minnesota Bureau of Criminal Apprehension said the case was the first in the state to be resolved through the services of Parabon, a private company based in the state of Virginia.

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Parabon, according to court documents, received a sample of the suspect’s DNA from the crime scene and used genetic phenotyping – the identification of the individual’s potential physical characteristics – as well as genetic genealogy, which involves the identification of potential relatives and the construction of family trees through commercially available genetic databases.

Parabon found several potential matches in databases and developed extensive family trees based on the DNA sample, developing what the company called a “hypothesis” that Carbo was the source. Chisholm Police and the Minnesota Bureau of Criminal Apprehension then began pursuing him as a suspect, obtaining DNA samples from the garbage from Carbo and later from him directly.

PREVIOUSLY: Arrest made in 1986 homicide in Chisholm

But the use of Parabon presented a series of constitutional and privacy concerns that had never before been debated in a Minnesota courtroom. While prosecutors maintained that the company only provided a “lead” to investigators, the defense argued the employees were engaged in law enforcement work.

Schmid, in a written motion ahead of Wednesday’s hearing, asked Judge Robert on Friday to remove “evidence from all comparisons of (Carbo’s) DNA with DNA profiles obtained from probative samples in this case. “. Parabon, according to court documents, searched two databases known as FamilyTreeDNA and GEDMatch, both of which allow users to submit personal DNA samples for genealogical purposes.

“The people who have their DNA in the databases maintained by FTDNA and GEDMatch have not authorized the disclosure of their genetic information in a manner that complies with Minnesota law,” Schmid wrote.

Defense attorney also suggested that the warrantless seizure of Carbo’s garbage was a violation of state and federal constitutions, and that forensic testing of the garbage and a direct sample of Carbo “is the result of research. previous illegal acts in DNA databases “.

Schmid called no witnesses during Wednesday’s contested hearing, agreeing to work with St. Louis County District Attorney Chris Florey to submit a written factual basis to the court, after which the two attorneys will file briefs explaining their positions.

The judge on Friday suggested that lawyers address a number of legal issues, including the privacy rights maintained by clients who use private DNA databases, as well as the appropriate remedies for any constitutional violation during the course of the trial. a criminal investigation.

Controversial tactic

Law enforcement’s use of genealogical databases is an emerging, but controversial, tactic to solve decades-old homicides. Notably, Joseph James DeAngelo, the “Golden State Killer”, who committed at least 13 murders and more than 50 rapes in California between 1973 and 1986, was identified and arrested in 2018 on the basis of DNA samples provided by distant relatives for genealogical and conserved purposes. by GEDMatch.

The tactics have also been featured in the popular true crime genre. Parabon’s chief genetic genealogist CeCe Moore, who worked directly on Carbo’s case, appears on an ABC television show “The Genetic Detective,” in which she recounts past cold cases that she helped solve.

Schmid also renewed a motion to access additional information held by Parabon, including standard operating procedures, case notes, communications, documentation of database searches, as well as personal information and family trees of ‘others identified as potential DNA matches.

PREVIOUSLY: Defendant in 1986 murder of Chisholm not entitled to DNA database details, judge rules

Friday rejected a defense request in May alleging a breach of discovery rules, arguing that the defense had failed to prove the information was relevant because Parabon simply provided “background information” which led the forces to order to conduct their own investigation of Carbo. The company also maintained that the information withheld is proprietary.

Schmid, in the motion filed this week, said that a long series of emails, obtained through a subpoena, show that Chisholm Police Chief Vern Manner was in routine communication with Parabon managers between November 2019 and July 2020.

“Parabon acted entirely under the direction of the state and his only function in this matter was to assist in the law enforcement investigation into (Daugherty’s) death,” Schmid wrote. “Full discovery of Parabon is necessary to ensure compliance with discovery rules and due process.”

Florey asked the judge to dismiss the motion again.

“All it does is corroborate the court’s earlier factual findings,” the prosecutor said on Wednesday. “The state’s position is that this is no surprise; this is not new information.”

On Friday, he said he would likely vote on both issues in September. Carbo, who faces one count of intentional second degree murder, remains in the St. Louis County jail on $ 1 million bail.

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