Two printer-size machines stored at the Utah Attorney General’s Office can process DNA evidence in two hours, instead of the days or weeks a laboratory analyst typically needs.
That speed is changing forensic police work, according to some law enforcement experts and the company that makes the devices.
“Persons of interest that have no link to a case can be identified and removed from consideration more quickly, dead-end leads can be discarded and, in general, scarce investigative resources can be more effectively utilized,” said ANDE, the company that sells the C6 Rapid DNA machines, in a statement.
And when the process identifies a suspect, the results will survive scrutiny in court, ANDE, based in Colorado and Massachusetts, believes. But that is a point of contention.
So far, Utah police have used the attorney general’s machines to investigate 21-year-old Alex Whipple in the death of his 5-year-old niece, Elizabeth “Lizzy” Shelley, and to confirm the identity of human remains found March 17 in Weber County as a person reported missing earlier that month. The technology also has helped nab alleged serial burglars and linked more than a dozen felons to firearms they “had no business” putting their hands on, said Nate Mutter, with the Utah Attorney General’s Office.
Mutter and others at the office pitched the machines to prosecutors around the state at a November 2018 Utah Association of Counties meeting in St. George. The attorney general’s state website also features a section about Rapid DNA with a video of Attorney General Sean Reyes speaking glowingly of the machines.
Mutter said ANDE has never paid the office to promote the technology. A Salt Lake Tribune search of state-level campaign finance disclosures found no evidence ANDE or its CEO George Heinrichs had ever contributed to Utah candidates or political action committees.
Yet some state leaders in law enforcement and national experts are hesitant to embrace Rapid DNA. The FBI, in addition to preeminent national groups for prosecutors and forensic crime analysts, have said the automated machines aren’t ready for the field, and shouldn’t be used to solve and prosecute crimes. They worry that courts will reject the DNA results, leading to cases being tossed out or criminals getting non-guilty verdicts when they shouldn’t.
The groups do, however, approve of using the technology for booking people into jail — taking a cheek swab like you would a fingerprint.
Though these groups don’t disagree with the technology’s potential, they wonder if the machines are reliable without further testing and the development of best practices.
Using Rapid DNA in Utah
Utah’s Attorney General’s Office purchased the ANDE machines after the company approached staff in spring 2018. Mutter declined to say how much they cost; The Salt Lake Tribune has filed an open-records request for that information.
Mutter said Reyes was initially intrigued by the machine’s potential to “keep communities safer” by expediting investigations and closing cases faster — and for less money — and said Reyes decided to take a chance.
“And, you know,” Mutter said, “so far to date, that’s exactly what we’re seeing.”
The office used the machines 37 times in the first six months, typically for local law enforcement agencies. In the past three months, Mutter said, they’ve used the machines nearly twice that amount.
Initially, the office planned to use the machines primarily to analyze DNA traces left when people touch guns, he said. But since then, they’ve been tapped for varying types of crimes, such as a sexual assault, a homicide and to catch an alleged serial burglar.
Logan police used the machines while investigating Lizzy Shelley’s disappearance, and matched the girl’s DNA to blood found on a knife that allegedly belonged to Whipple, in addition to blood on his watch and sweatshirt, court documents say. Whipple’s DNA also was linked to a beer can found near a wooded area where investigators located the knife and Shelley’s discarded clothing.
They did this just 96 hours after the girl disappeared — and before officers had found her body. Whipple has been charged with aggravated murder and other counts.
(Eli Lucero | Herald Journal, pool photo) Alexander Whipple stands next to his lawyer Shannon Demler, while in 1st District Court to set a date for a preliminary hearing on Monday, June 24, 2019, in Logan. Whipple has been charged with seven felonies, including aggravated murder in connection with the death of his niece, 5-year-old Lizzy Shelley.
Cache County District Attorney James Swink said there was enough forensic evidence found in the Whipple case that law enforcement used both the ANDE machines and the state crime lab to analyze samples and confirm each technology’s results.
In other cases he has prosecuted, Swink said, there has been so much other evidence to support the Rapid DNA machines’ results that defense attorneys haven’t questioned the technology.
But if he had a future case, such as “an auto burglary, or some case like that” that hinged on Rapid DNA testing and might go up on appeal, Swink said, “I'm willing to take a case like that quite frankly, because I think technology as we've seen it it can be very useful.”
Questioning Rapid DNA’s reliability
The attorney general’s office proposed that Salt Lake County District Attorney Sim Gill use Rapid DNA technology to analyze evidence in the June disappearance and death of University of Utah student MacKenzie Lueck. Gill said his decision to reject that option was simple.
Do you want to use a methodology that doesn’t have any “standardized protocols,” which might give a result some may accept and some may not, he asked, or do you want the “tried and tested” results from a crime lab? Gill said he will always choose the latter.
“Because on the cases that matter, and the cases that are important, I'm going to want the most effective, predictable, acceptable, scientifically defendable methodology,” Gill said. “Because I don't have the luxury of playing Russian roulette with the lives of my victims, or on those types of cases.”
Instead, staff in the state crime lab worked quickly to process evidence in the Lueck case in the days before Ayoola Ajayi was charged with aggravated murder, Salt Lake City Police Chief Mike Brown said at the time.
The National District Attorney’s Association and the Scientific Working Group on DNA Analysis Methods, or SWGDAM, agree with Gill. While the groups approve the use of Rapid DNA machines to process cheek swabs on inmates being booked into jails, they contend using them to process crime scene evidence is a mistake.
A 2017 statement from SWGDAM’s Rapid DNA committee outlines several reasons why:
Crime scene samples are often limited and irreplaceable, and Rapid DNA machines consume the evidence they analyze.
Crime scene samples often contain scant amounts of DNA, which may be damaged or degraded and contain DNA from multiple people, which is known as DNA mixtures. DNA evidence in that condition must be evaluated by a trained forensic analyst.
The machines’ results don’t yet meet the FBI’s quality assurance standards to be uploaded into the agency’s FBI major DNA database, known as CODIS — the Combined DNA Index System.
Jennifer Lynch, an attorney with the California-based Electronic Frontier Foundation, also is skeptical of the technology being used on evidence that may have DNA from multiple people.
“My sense is that the manufacturers of these machines are now trying to sell their technology more broadly, and so are advertising that it can be used for these multiple source DNA samples even though the machines were never designed to do that,” she said.
Lynch, the group’s surveillance litigation director, pointed to a 2017 Swedish study of similar technology. The Swedish National Forensic Centre evaluated machines from the company IntegenX, hoping it could help alleviate its analysts’ heavy workload. The study found technicians had difficulty processing even single-source samples with the machines, because of contamination inside the devices.
The study found deficiencies in the machine’s firmware, hardware, software and the cartridges that hold the DNA, including leakage from one DNA cartridge into another.
“I think [the technology]’s hugely problematic, and if I were a defense attorney, I would really challenge that in a case,” Lynch said.
FBI testing
Jay Henry, director of Utah’s state crime lab, has long been an advocate of Rapid DNA technology. He wrote in a 2016 Tribune editorial that its “quick response allows officials to efficiently determine if a suspect is connected or not connected to a specific crime…, thus expediting the wheels of justice while saving the taxpayer money.”
Henry still believes that, but he thinks more testing needs to be done to make sure the Rapid DNA results can withstand courtroom challenges, he said.
“I don't want to poison the well,” Henry said. “That's not what I'm trying to do. I'm trying to say there's probably a use here. Rapid DNA is coming.”
The FBI is doing just the sort of testing that may assuage Henry’s fears.
The agency has been looking into Rapid DNA technology since at least 2010, when its Rapid DNA Program Office was established to develop the technology for law enforcement use, according to its website. Before then, the technology was primarily used in combat situations to link DNA found on, for example, roadside bombs with terrorists, Henry said.
The 2017 Rapid DNA Act, introduced by then-Sen. Orrin Hatch, R-Utah, and Rep. James Sensenbrenner, R-Wisconsin, spurred further research by the FBI. An agency task force created in 2018 is divided into two groups: One is looking into the “maturity” of Rapid DNA technology and how to further develop it, including allowing its results into CODIS; the other is creating best practices for law enforcement to use it with crime scene evidence and build confidence in that process. Both the National District Attorneys Association and SWGDAM are participating in the task force.
ANDE suggests a shift to allow overburdened forensic laboratories to spend their time on only the “most complex of cases,” while Rapid DNA takes care of the rest. The machines, the company said, have “completed many validations” with agencies across the country.
“Time after time, we have shown that ANDE produces results that are consistent with or better than those produced by laboratories for the same/similar sample types tested,” its statement said.
ANDE makes the only Rapid DNA systems approved by the FBI for use in the National DNA Index System (NDIS), which is a part of CODIS. However, labs who want to submit results to NDIS from ANDE machines must first have the individual machines they own tested and validated by the FBI.
Advocates for the technology often liken it to portable breath-testing machines, which police use to determine a person’s preliminary blood alcohol content as probable cause in DUI cases. While that technology was once new and untested in court, it’s now routine, Mutter, with state attorney general’s office, said.
Mutter said he understands some prosecutors may be hesitant to rely on Rapid DNA, but “I truly believe it’s going to stand up in court, and I can’t wait for that to happen to kind of quiet the masses.”
With the number of police agencies using the technology in Utah, he said, the Beehive State could be the place where that court battle takes place.
