Paul Holes called me with the news about the discovery of the pristine second rape kit in late November 2017. I was amazed that such a kit had survived and thrilled by the possibility that I might soon have a DNA profile that I could use for IGG. My guardian angel had come through again.
The first step in the process was to extract DNA from the semen in the rape kit and create something called a SNP profile.
In 2017, the only laboratories that were capable of creating a SNP array profile were the handful of commercial, direct-to-consumer DNA-testing companies that existed then. The big question was: Could we convince one of them to create a SNP profile for us from the DNA in the semen sample in our rape kit?
Steve Kramer reached out to all the direct-to-consumer companies, but only Bennett Greenspan, the founder, president, and CEO of FamilyTreeDNA and a true pioneer in the field of genetic genealogy, was willing to entertain the idea of working with law enforcement. I knew Bennett Greenspan from speaking with him at FamilyTreeDNA’s annual meetings for its project leaders, and he had granted me permission to have FamilyTreeDNA create SNP files and upload them to its database in two previous criminal cases on which I had worked, one of which was the identification of Terry Rasmussen.
Growing up in Omaha, Nebraska, Bennett Greenspan showed an interest in genealogy from an early age and enjoyed interviewing relatives at funerals. He built his first family tree at age eleven. “I was the only one in the family who was interested in it,” he told one reporter. “My parents didn’t understand, but it was great because it gave me an excuse to talk to my grandparents and great-aunts, and of course they loved that.” As an adult, he hit a dead end trying to prove his grandfather was related to a man in Argentina. The only thing that could help him was a DNA test, but no company offered such tests to the public for genealogical purposes. Bennett teamed up with a university genetics professor and in 1999 created FamilyTreeDNA, the first American company to offer DNA testing to the public. Its motto: “History Unearthed Daily.” By 2017, when Steve Kramer reached out to Bennett, FamilyTreeDNA had a database of more than 1.5 million test takers.
Kramer discussed two specific crimes with Bennett, including one of the rapes in the Golden State Killer case. If Kramer expected Bennett to politely defer reaching a decision and take time to gather other opinions, that did not happen.
Instead, Bennett gave Kramer his permission right then and there.
“I have made decisions on my own for a long time,” Bennett later explained to The Wall Street Journal. “In this case, it was easy. We were talking about horrendous crimes. So I made my decision.”
The one thing Bennett requested was that the involvement of FamilyTreeDNA in the Golden State Killer case be kept confidential and not made public.
Bennett Greenspan’s quick decision did not surprise me. At the time of Kramer’s contact with him, I personally did not feel that there were any pressing ethical issues stemming from the use of commercial DNA sites in criminal cases, and I agreed with Bennett that solving horrendous crimes was more than enough of a reason for him to grant us permission. It simply did not strike me as a complicated ethical issue—and I was someone who had more than a passing interest in ethical dilemmas. In fact, I had very nearly made studying them a career.
In high school in New Zealand, I tended to do well in the subjects that interested me, such as science, and not so well in those I found boring. I did not know why that was the case until many years later, when a psychologist diagnosed my son, Christopher, with attention deficit disorder. She then tested me and found that I had the same disorder, which is not surprising since it tends to be genetic.
At seventeen I stopped my schooling—after a dispute with a teacher cost me the chance to enter university in New Zealand—and took a job as a lab technician for a company named Lever Brothers (now Unilever) in Wellington. The company was delighted to be able to hire a high schooler with an aptitude in science for a university-graduate-level job (and pay her significantly less). The lab made soap out of lard, and one of my tasks was keeping track of the glycerin, a valuable byproduct of the process, that was produced.
Eventually, I did go back to school, this time in the United States. I graduated from the University of California, San Diego, with a BA in psychology and biochemistry and a PhD in biology, and after a postdoctoral fellowship at Roswell Park Memorial Institute in Buffalo, New York, I accepted a position as an assistant professor at the University of Texas Medical Branch (UTMB) in Galveston, Texas. There, as a member of the Medical School Admissions Committee, I interviewed many prospective students, nearly all of them high academic achievers with perfect GPAs. What I noticed, however, was that only a few of them were well-rounded students. They often did not have a broad range of experiences or interests.
I began to ask the candidates questions about controversial medical issues: abortion, surrogate parenting, frozen embryos, end-of-life practices. I wanted to see if they understood, or had even considered, the ethical dilemmas that might be created by the work they would do. Most of them had not given these issues a thought, and some were not even aware of them.
In the process I discovered I was especially drawn to medical ethics. I found the issues involved so compelling that I changed my plans and applied for admission to an accelerated program at the University of Texas at Austin School of Law. My new plan was to pursue a career in medical ethics, and after accepting a coveted place at the law school, I resigned from my position at UTMB.
Two years later I changed my plans again. When I interviewed at law firms and attended job fairs, a number of people noticed all the science on my résumé and suggested that I consider becoming a patent attorney. The field was expanding and patent attorneys tended to be well paid. After graduation I took a job as an associate attorney with a Dallas law firm that specialized in patent law, but I soon switched firms to work with the fabled patent attorney Bertram Rowland. Dr. Rowland was known and heralded for obtaining the first-ever patent in biotechnology. The patent was jointly owned by Stanford University and the University of California. Known as the Cohen-Boyer patent, it was the genetic-engineering patent that essentially launched the biotech industry in the 1970s. Professors Stanley Cohen and Herbert Boyer, the inventors, had created the first organism containing recombinant DNA—a gene containing DNA spliced into it from a foreign source.
Cohen and Boyer’s work was so groundbreaking that scientists called for a halt to any further work so that the ethical implications of the new technology could be discussed and its future uses considered. For example, recombinant DNA could theoretically be used for human germ-line intervention to replace a defective gene, or for genetic enhancement to an embryo to increase intelligence, or to alter eye or skin color, or even to clone humans—all sci-fi-sounding technologies that had vast moral and ethical implications and deserved vigorous debate.
In other words, should humans be messing around with DNA?
As the debate continued, the technology surged ever forward. The emergence of the internet and the dot-com boom of the late 1990s spurred the biotech industry even further, and patent attorneys were suddenly a hot commodity. Over the years I worked for several different firms and developed a stable of loyal clients who followed me from firm to firm. In 1995 I finally launched my own company, the Rae-Venter Law Group.
Along the way I developed a unique way of working with biotech inventors. Quite often, their view of their invention and its applications was fairly narrow. They had worked on their inventions with such hyperfocus for so long that they often did not see past their original goal. My job was to persuade them to consider other possible uses for their inventions, in addition to the way they had intended. This was where my grasshopper mind came into play.
It was my job to thoroughly understand an invention so that the legal claims I drafted would encompass the invention, its uses, and how it was made as broadly as possible. I had to persuade inventors to consider alternate embodiments of their inventions, something that I needed to do very carefully. Patent attorneys generally do not want to play a critical role in the development of an invention, because to do so would make them inventors as well. It is preferable to ask questions that tease out alternate embodiments, along the lines of “Could X be used for Z?” or “Is there another way to produce Y?”
Sometimes, when I asked my questions, an inventor would look at me with a puzzled expression, disappear in thought for a moment, and then say, “You know, if I tweaked this and that, then, yeah, I guess it could be used for Z.”
My questioning mindset—Is there some connection here that we’re not seeing?—turned out to be an asset not only in patent law, but, eventually, in genetic genealogy as well.
One of my earliest clients as a patent attorney working with Dr. Rowland was Calgene, a small biotech company in Davis, California. They introduced a new product called the FLAVR SAVR tomato—the first-ever genetically engineered fruit to be cleared for human consumption by the FDA. The Flavr Savr was a genetically modified tomato, altered so that it could be picked off the vine perfectly ripe. Its existence, however, sparked a powerful anti–GMO (genetically modified organism) movement, a collection of skeptics and ethicists who derisively dubbed such genetically engineered creations “Frankenfood.”
I was unprepared for this backlash. There were arguments that genetically modified organisms could damage the environment, or make farmers dependent on commercial seeds, or prove harmful to humans. A group of Catholic bishops called GMOs “morally irresponsible,” while the environmental lobby Greenpeace also came out against GMOs.
The most powerful arguments on the other side include the potential for GMOs to alleviate world hunger and possibly to prevent blindness due to a vitamin A deficiency in the millions of children whose diet consists primarily of rice. This has been accomplished in the form of “Golden Rice”—rice in which a gene that adds beta-carotene, a precursor of vitamin A, has been inserted. There is also the potential to create genetically modified plants that can thrive in a warming world or with less water, or even in salt water. So far, these potential positive uses have not been enough to lessen the stridence of the technology’s critics.
Certainly any new technology deserves debate, but I knew from the extensive research done by Calgene that their GMOs were safe. I also understood that consumers tend to balk at change, and at anything they don’t quite understand. When something is new and innovative, it can also be, to some, a bit scary. Certain groups sounded the alarm about horrible foreign substances being inserted into their food, and conspiracy theories arose about evil corporations bent on controlling humanity. Over the years, the Frankenfood contingent succeeded in shaping a negative public perception of GMOs.
As for the Flavr Savr, our firm helped it obtain a groundbreaking patent that cleared the way for the tomato to be sold commercially, and it was, in 1994.
Little did I realize that my battle with the Frankenfood folks would prepare me for the even more intense ethical dogfight that resulted from my work on the Golden State Killer case.
When I agreed to help Deputy Headley and the New Hampshire State Police on the Lisa Jensen Project and the Bear Brook murders case, and then Paul Holes on the Golden State Killer case, I had no apprehensions about doing so. Identifying victims and criminals felt like a good and noble endeavor, and I did not see it as a two-sided issue: If the technology existed, why should we not use it in pursuit of violent criminals and in identifying their victims? There were no ethical discussions of which I was aware about adoptees using all of the direct-to-consumer databases and GEDmatch to find their birth families, or about other people of unknown parentage, such as those conceived via egg or sperm donation (even though egg and sperm donors were guaranteed anonymity). Thus it was a surprise to me that the use of the DTC databases and GEDmatch for investigative genetic genealogy would suddenly become an ethical issue.
But it has.
When FamilyTreeDNA founder Bennett Greenspan agreed to create a SNP profile for the Golden State Killer and upload that file to FamilyTreeDNA’s database of 1.5 million users, the controversy about direct-to-consumer DNA sites and law enforcement had yet to erupt—mostly because nobody knew about the collaboration. Soon enough, though, Bennett’s decision not to tell his customers about helping law enforcement would be heavily criticized. Although I did not realize it at the time, by agreeing to work on the Golden State Killer case I was thrusting myself into a fierce ethical debate. It was, at least for some in the genetic genealogy community, a fraught gray area they preferred not to enter.
“I saw how vitriolic people in the community became when investigative genetic genealogy first began,” says Richard Weiss, a prominent genealogist and an adoptee who, like me, was one of the students in the original autosomal DNA class offered by DNAAdoption (he is the group’s former director). These days, Richard declines to work on criminal cases. “IGG completely fractured the community, and I did not want to bring that into DNAAdoption,” he says. “There are people who believe that helping law enforcement is a violation of privacy and just flat wrong. They argue that people’s data is being used in ways that they never agreed to.”
But Richard also notes a key distinction that often gets overlooked in the debate: the meaning of privacy versus anonymity.
“No one has a legal right to anonymity,” he says. “Who you are, where you live, your birthday, that is all publicly accessible information. You do, however, have every legal right to privacy, especially from the government. But that doesn’t mean you can hide who you are. No one is entitled to have a relationship with you, but everyone has a legal right to contact you.”
Some people believe direct-to-consumer DNA testing in general should be more regulated, so that users are better informed about the potential risks involved in unearthing family history.
“The biggest danger is that folks don’t seriously consider that their very sense of who they are can be totally upended by these tests,” says Judy Russell, a former federal prosecutor, defense attorney, and professor who has a popular blog called The Legal Genealogist. Judy is a prominent critic of unregulated investigative genetic genealogy. “People don’t believe [genetic genealogy] will tell them anything new and are utterly shocked when it does. That includes everything from learning about the increased risk of certain diseases to unanticipated relatives to discovering that those they believed to be biologically related are not. They don’t understand how an unexpected result can reverberate through the entire family.”
Russell is dead set against law enforcement accessing a genealogy site without the consent of its users. “I would support a ban on allowing any third party—law enforcement, pharmaceutical companies, insurance companies, and more—to use genealogy databases without users’ consent,” Russell says. “Just because there’s new technology doesn’t mean we toss out essential guarantees.”
I believe, however, that the emergence of new technology can sometimes lead people to focus on issues that are not especially relevant to the technology’s use and purpose. Fingerprints, for example, were considered an invasion of privacy when they were first used in the United States around the turn of the century to identify and help convict criminal suspects. My thinking, however, at least early on, was far more straightforward: the more I learned about the Golden State Killer and his heinous crimes, the more convinced I became of one simple fact: This man needs to come off the streets. Thankfully, Bennett Greenspan felt the same way.
“If we can help prevent violent crimes and save lives and bring closure to families,” he later explained about his thought process, “then we’re going to do that.”
And so it was that, with Bennett’s help, we were finally able to get down to the business of solving who the Golden State Killer was.
FamilyTreeDNA developed a SNP profile from our crime-scene DNA and uploaded it to their database. In February 2018, Steve Kramer and Paul Holes emailed me a text file that represented the Golden State Killer’s DNA profile. I uploaded the file to GEDmatch on February 18, 2018, under a fake profile.
It would take several days for each site’s matching algorithm to compare the SNP profile that we had uploaded against other profiles in its database. Any people identified as having matching DNA with our DNA profile, over a threshold amount, would be considered to be genetic cousins of the Golden State Killer. The amount of matching DNA between our profile and the genetic cousin would be used to estimate how closely related the genetic cousins were to the Golden State Killer. With that information, we could begin to build family trees for the closest matches.
While we waited for this process to complete, I ran some of GEDmatch’s utilities on the DNA profile that we had uploaded.
At the time, the technology behind DNA analysis was growing exponentially, and new tools were becoming available seemingly every day. For instance, a site called OhMyGene could identify a single gene that might lead to Crohn’s disease. Another site, Athletigen, was tailored to athletes and analyzed DNA with an eye toward health, nutrition, and performance. Infinome promised analysis that could help people lose weight and “fit better into our genes!”
I started with a tool offered by GEDmatch: an eye-color estimator. The tool used information from the many SNPs related to eye color to predict a person’s specific coloring. A typical line of data produced by the tool might be: GG at rs7174027—blocks some melanin; often gives light-colored eyes, or TT at rs1129038—penetrance modifier; blue eyes. It was by no means a foolproof test, and it tended to work better for people with European ancestry. What it could do, however, was provide me with another piece of data that could potentially narrow down our list of potential suspects.
I ran the eye-color estimator on GEDmatch on the Golden State Killer’s DNA profile, and the results were clear—the killer’s eyes, the tool predicted, were blue.
Next, I turned to a site called Promethease (the name is a take on the Greek god Prometheus, who sculpted mortals out of clay and bestowed fire on humanity). The site scans your raw DNA data to determine gene variations and match them to existing scientific reports about the variations and the diseases they could cause. It was another predictive tool that had its limitations but that could yield a potentially crucial bit of data.
The analysis confirmed the GEDmatch estimation that the killer’s eyes were blue.
It also indicated our killer would likely be prematurely bald.
As I would learn after we had solved the case, I was not the first person to use the Golden State Killer’s DNA to predict his likely eye color. A Snapshot report had been obtained years before I had begun working on the case. That report predicted that the eye color of the Golden State Killer was green or hazel. That lab also declared that its test results specifically ruled out the possibility that the Golden State Killer’s eyes were blue. Although I did not have access to this report, the other folks on the team all did.
That is why they all believed they we were chasing a green-eyed monster, while I was looking for one with blue eyes.
These tiny bits of biographical data about the killer were the modest beginnings of what we hoped would be a complete unmasking of his identity.
In other words, the hunt for the Golden State Killer was on.
