Gilgo case figures say NYS should not delay DNA techniques

ALBANY — The future use of DNA evidence in criminal cases in New York was hashed out in a low-ceilinged government meeting room Friday, with key players in the Gilgo Beach case asking regulators to push the envelope and civil rights and defense attorneys calling to pump the brakes.

At issue is a request by the New York State Police to allow public forensic laboratories to use "next-generation sequencing" technology to support "forensic investigative genetic genealogy" to solve crimes. The decision will be made by the state’s Commission on Forensic Science, which called witnesses on both sides of the debate to Friday’s hearing and could act as soon as December.

Public labs in New York now are limited to using a genetic technology that doesn’t fare well with degraded, low-quality DNA samples, experts said. Advocates said the new technology solves the issue by developing usable profiles from highly fragmented DNA evidence to help identify or even clear suspects.

There are 25 public forensic labs in the state, including five on Long Island. But for now, only the state police lab is requesting permission to use the emerging technology.

Ray Tierney, the Suffolk County district attorney who successfully prosecuted the Gilgo case, agreed. His office used DNA work from a private lab in California to ultimately tie Rex A. Heuermann to the killings of eight women. It took an unprecedented judicial ruling for the evidence — a whole genome sequencing method used on nine hairs found on the victims — to be used.

"If not for NGS, Rex A. Heuermann would still remain at liberty," Tierney told the commission Friday. "Currently, New York State public laboratories stand on the sidelines while private laboratories are leveraging NGS every single day."

Melissa Cann, whose sister, Maureen Brainard-Barnes, was murdered by Heuermann, called the new technology "the miracle" that finally held Heuermann accountable. Further, she noted two of his victims, Karen Vergata and Valerie Mack, couldn’t be identified using older DNA technology.

"I am here to explain to you that the science being discussed helps people like me," Cann said. "It helps families learn what happened to their missing family members and reunite us with their remains, so we can have a funeral and bury our loved ones."

Cann urged the commission not to delay because "somewhere right now, another family may be waiting."

The use of new technology, Cann said, "means answers."

"It means names. It means accountability," she said. "And, ultimately, it means justice."

Heuermann’s attorneys had sought to exclude the DNA evidence from the trial, arguing it was inadmissible under state law and that the California lab’s standards and weighting of probabilities to establish a link to their client were unreliable. They ultimately lost that bid.

But those were some of the same issues that an array of public defense attorneys, the Legal Aid Society and law clinics raised when they testified.

They also said expanded use of DNA could encroach on the rights of a suspect’s distant relatives, who have no connection to the case, and eventually be used for an ever-broadening deployment.

"Is the technology only for state police, or every lab in New York State?" asked Richard Torres, an attorney with Brooklyn Defender Services. "Will New York share information with external agencies such as [Immigration and Customs Enforcement]? Will it be used to identify people seeking abortion services or gender-affirming care?"

Others urged the commission to go through the State Legislature to develop auditing standards and penalties for labs, make clear law enforcement must get judicial authorization on a case-by-case basis to use next-generation technology, or outline how information will be formalized and presented to a defense attorney in compliance with fair trial laws.

"Good intentions fill this room," said Sarah Chu, policy and reform director at the Perlmutter Center for Legal Justice at Cardozo Law. "But they are not a safeguard."

After his testimony, Tierney said the commission shouldn’t punt to the State Legislature, "which lacks the expertise of a body like this."

"They’ll be quicker and they are experts," Tierney said of the commission. "So, they’ll do a better job of it."