Procreation, by its very nature, implicates human sexuality; mysterious alluring -and sometimes illicit- sexuality. From time to time, people encounter the unexpected consequences of such procreative sexuality when searching for their ancestry. These days, with the assistance of genetic genealogy, family trees have come into much more detailed view.

Technological advances in genetic genealogy over the past decade have enabled genealogists to complete the branches of a family tree that were heretofore concealed. Sometimes those branches contain unwanted, even horrific, truths. Because procreation sometimes leads to court-admissible evidence of criminal conduct, law enforcement has long-realized the identification potential of the commercial databases. Genetic genealogy has become an all-purpose de-anonymizer.

How it Works

Genetic genealogy resulted from the proliferation of DNA testing and profiling. Ever-larger private DNA databases allowed genealogists to more thoroughly chart family networks. Genealogists now use DNA like NASA uses ever-more-sophisticated telescopes, to look far back into the paternal and matrilineal lines of a person's ancestry.

Genealogy enthusiasts readily submit to Y-chromosome and mitochondrial testing that results in a highly-defined family tree. Are the privacy rights of the members of that family tree violated by those test results that they did not request?

When you combine genetic genealogy with forensic genealogy, there is nary a soul on the planet who would remain unidentified so long as that person's DNA was available for analysis. Theoretically, the line of paternity of an unknown individual can be established using the latest DNA technology.

Until recent years, the national law enforcement database was limited to convicted offenders; if someone committed a horrible crime leaving DNA evidence at the crime scene, they could not be identified through the FBI's database unless they were a convicted criminal with DNA on file.

Where genetic genealogy comes into play is when law enforcement gains access to the private DNA genealogy databases to ascertain the identify of family members and other predominant biogenetic markers of suspects. Now, the data pool is broadened far beyond the convicted criminal population. This vastly improves the forensic identification process and has resulted in some spectacular cold-case convictions.

Just as a cold-case defendant eschews forensic identification, sometimes family members do not welcome the "clarification" DNA tests bring to the family tree. DNA tests can roil the family waters. More than a few times in my law practice, the inconvenient truth erupting from an unwanted DNA test has resulted in the termination of a marriage.

The Three-Quarter Sibling

For example, the whole concept of the three quarter sibling and its correlation with illicit sexual liaisons. We all understand half-siblings; these occur when the parents of one set of children separate and have children with other people. Half-siblings and step-siblings are ubiquitous in contemporary society.

Three-quarter siblings are different. There are two ways to produce three-quarter siblings: two sisters each give birth to children with the same father; or when brothers each sire children with the same woman.

Such circumstances could lead to cover-ups, fake paternity and faux maternity. The lies we tell ourselves can be foundational in such cases. In the genetic genealogy realm, an unsuspecting family member-malfeasant can be outed as having a direct -albeit concealed- paternity or maternity when another family member becomes curious about the family tree and submits a DNA sample.

Adoptees

Another area of law impacted by genetic genealogy is adoption. When adoptees come looking for their biological parents, genetic genealogy can be a powerful tool in this often-convoluted process. Privacy interests are also implicated.

When a woman puts her child up for adoption, she may wish to preserve her privacy; forever. Does an adult child's right to ascertain the identity of their birth parents outweigh a mother's right to privacy in the adoption process? Genetic genealogy has the potential to circumvent privacy barriers, laying family data bare for all to see.

Technology allows genealogists to track down the birth parents by comparing DNA samples against a very large and growing body of data; patterns are discovered that lead to match-based identifications. An adoptee's paternity is revealed with the aid of a genealogist, known as a "search angel". When the genealogist identifies a pattern, the family tree can then be traced backward, filling-in descendants to the present day.

Persons of Interest

Because genetic genealogy captures the living within its nets, identification by law enforcement is one of the functions of the technology. Genealogists have been involved in several spectacular cold case resolutions using the recently developed genetic genealogy to match DNA samples with a perpetrator.

DNA taken from a crime scene can now be compared to the law enforcement and private databases to glean a genetic pattern. With that information, a suspect pool sometimes arises. Location, general characteristics, and eventually, a complete identification can be established through the DNA.

Genetic Testing Company Links

Here are some companies that offer genetic testing services at reasonable fees. These companies are the source of the private DNA database. Some are in the process of modifying their user agreements. The old "default" was the election of shared data; the new "default" position is in favor of customers' privacy. Under the new default settings, law enforcement will need a search warrant to access the genetic data.

FamilyTreeDNA

23andMe

GEDmatch

We can help.

If you or a family member have privacy concerns, or are confronted with an unwanted identification, contact our law firm to assess your options. 

Post #630

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By: Timothy P. Flynn

On Sunday Morning, I was reading the Detroit Free Press about a rough incident of vigilante justice made possible by Facebook.  As the social media experience accelerates, we can expect more cases like this one.

The Crime.  A 15-year old girl with Down Syndrome was allegedly raped in the Hubbard Farms neighborhood on Detroit's Southwest side on July 17th.  Word got out that the suspect was a 45-year old man, also from Hubbard Farms.

The Consequences.  First, Emails circulated through the neighborhood about the attack and the suspect's involvement, divulging his name and address.  Next, graffiti below the suspect's apartment window pronounced the Hubbard Farms resident a "Rapist".  Once outed by the graffiti and emails, neighbors demanded to know what should be done about the attack, and the alleged attacker, like right now.

An Unfortunate Delay.  For their part, the Detroit Police bungled getting off the dime on the case.  The subsequent investigation into the girl's attack led to a rape kit that included a Buccal swab from the suspect.  The DNA samples, however, were not transmitted to the Michigan State Police crime lab by the DPD for over a week.

We here at the Law Blogger know, from our own cases, that the State Police crime lab is seriously backlogged, taking between 6-months up to one-year before test results are returned.

A Facebook "Call-to-Action".  So in the month since the rape occurred, neighbors who see the alleged attacker still walking the streets, have become incensed with the slow-moving wheels of justice.  They know that the suspect has not been charged with any crime; at least not yet.

This delay in justice was not acceptable to some of the neighborhood residents who recently struck-up a FB campaign calling for street justice; one post even suggested a back-alley castration; others posted equally specific threats.

The Beatdown.  Apparently, due to the e-notoriety of the alleged attacker, he himself was attacked on the street by several members of the neighborhood, beaten with a baseball bat and kicked in the ribs and face according to witnesses.  He survived the beatdown and his family moved him to an unknown location for his own safety.  [Note: Although witnesses to the beatdown contacted the DPD, the police arrived too late, apparently otherwise engaged with a fatal shooting nearby.]

Guardianship Proceedings.  According to the Freep article, the suspect has a mental illness, was committed to a mental health facility last year, and has a Guardianship in the Wayne County Probate Court.

Managing over 75 guardianships in my own law practice as a Public Administrator, I understand the challenges and heartbreak of mental illness.  Mental illness, however, is not a legal defense to most crimes.  When our wards get charged and convicted of crimes, their mental illness is taken into account at the sentencing hearing, but it does not exonerate the criminal act.

Vigilante Justice.  Vigilante justice is not the answer, even when the wheels of justice turn slowly.  While justice delayed is truly justice denied, vigilantism points to a critical breakdown in our society, letting us know just how close chaos looms beneath the surface.

As a criminal defense lawyer, I understand the necessity of the prosecutor to collect evidence to prove the charges in a court of law.  Nearly always easier said than done, especially in Detroit.

In this case, the Wayne County Prosecutor will bring criminal charges against the alleged attacker just as soon as they have sufficient evidence to prevail in court; that's how the justice system works.

We here at the Law Blogger find it ironic that technological advances such as the proliferation of social media serve, at least in cases like this, to accelerate violence in a frenzied rush to judgment.

What if the mob gets it wrong; where is the appeal filed from that injustice?

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Last year, I prepared and argued a series of appeals for a man convicted in Washtenaw County of sexual assualts near Eastern Michigan University.  He received life sentences in six separate cases.

The primary issue in each case was identification.  Due to the way the victims were raped, they never saw their attacker's face.  Condoms and other precautions minimized physical evidence left at the respective crime scenes.

In one of the cases, however, Washtenaw County Sheriff detectives were able to recover a small semen sample.  The Michigan State Police crime lab contracted with an out-of-state forensic laboratory that produced a report concluding the sample matched the defendant's DNA.

At defendant's trial, the Washtenaw County Prosecutor called the MSP lab tech and the out-of-state lab tech to testify about the matching DNA.  On appeal, I argued that defendant's Sixth Amendment right to confront witnesses was violated because the out-of-state lab tech relied on procedures and internal reports created from other technicians that were not present in court to testify.

Defendant's convictions were affirmed by the Michigan Court of Appeals and his petitions for writs of certiorari to the Michigan Supreme Court were denied last summer.  Around the same time, however, the United States Supreme Court decided Melendez-Diaz -v- Massachusetts.

In the Melendez-Diaz case, Suffolk County, Massachusetts law enforcement utilized lab "affidavits" concluding that a seized substance was cocaine.  The Supreme Court held that such an affidavit was insufficient to convict and that the lab technician must testify in open court.

In the few short months since the Melendez decision, law enforcement and prosecutors have raised an outcry about the increased costs and difficult logistics associated with producing the in-court testimony of lab techs.  The defense bar, on the other hand, has hailed the decision as a victory for individual constitutional rights.

In a rare move, the U.S. Supreme Court has scheduled oral arguments for January 2010 in Briscoe -v- Virginia; a case raising the same issue the high court so recently decided in Melendez-Diaz.  The New York Times has speculated that Briscoe will not overturn but rather, simply explain and clarify the Court's earlier ruling on lab technicians.  One such procedure would be to make lab technicians available for cross-examination rather than requiring their testimony in the prosecutor's case-in-chief.

At this date, my client is left with only a series of federal court habeas corpus petitions based on the Sixth Amendment.  Although his state-court remedies have been exhausted, the decisions of the United States Supreme Court, discussed above, will have a significant impact on his habeas petitions soon to be pending in federal court.

The slightly increased cost to the state of securing the in-court testimony of all the lab techs that worked on his DNA sample is a small price to pay for our collective constitutional liberties.

The goal of a criminal defense at trial is to force the government to prove the elements of their case.  The goal of all criminal appellate representation is to ensure that the defendant's trial and sentencing were fair. Without these safeguards, our Sixth Amendment right to counsel is meaningless.

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Every so often, the seven Justices of the Michigan Supreme Court have a golden opportunity to consider momentous legal issues arising from our county family courts.  As recently as last week, the Supreme Court had the chance to decide a crucial case involving the use of DNA to determine the rights of competing Fathers.

Suprisingly, however, the high court passed on the Genesse County Family Court's Lipnevicius case, remanding the matter to the Michigan Court of Appeals for a determination of parenting-related legal issues.

Months earlier, the Michigan Court of Appeals likewise took a pass on the case when it denied leave to appeal one of the lower court's orders. Essentially, by remanding the case, the Supreme Court is now forcing the intermediate appellate court to decide the issues, despite that court's earlier reluctance to do so.

The case arose in October 2006 when Mother filed for divorce and sought a determination that her husband was not the biological Father of their minor son.  (Note: In Michigan, there is a rebuttable presumption that children born during a marriage are the biological issue of that marriage for purposes of a divorce proceeding.)  DNA testing confirmed that husband was not the biological Father of the boy.

Complicating matters procedurally, bio-Dad (the "other man") was allowed to intervene in the divorce.  Also, Genesse Family Court Judge Michael Theile determined that Mother effectively rebutted the presumption of her husband's paternity with the DNA test.  For his part, Husband requested the family court judge to determine that he was the equitable father of the child, thereby granting him all the rights and responsibilities of a natural father.

The case came close to a trial in November 2008. Interlocutory appeals have since tied the matter up; the case has yet to have a divorce judgment entered as the matter runs its course. The tortous proceedings have included several collateral issues such as drug-testing for the parents, psychological evaluations for everyone, discovery motions, show cause hearings, and a change of domicile to Ohio.  Michigan's jurisdiction over the child also may be tested in the pending appeal.

Meanwhile, Bio-Dad has married Mother and the parents currently live together with their minor son.  The ex-husband has lost significant contact since the child, now 5, was only two years old at the time the divorce was filed. What a mess. 

In Michigan, the equitable parent doctrine was formally established more than 20-years ago in a Michigan Court of Appeals case, but has it's roots in the "equitable adoption" doctrine from over a century ago.  The doctrine seeks to take into account the love and support of a man serving as the true, day-to-day father of a minor child.  In the well-known 1987 divorce case of Atkinson v Atkinson, the Court of Appeals established the following test for application of the doctrine:

[W]e adopt the doctrine of equitable parent and find that a husband who is not the biological father of a child born or conceived during the marriage may be considered the natural father of that child where (1) the husband and the child mutually acknowledge a relationship as father and child, or the mother of the child has cooperated in the development of such a relationship over a period of time prior to the filing of the complaint for divorce, (2) the husband desires to have the rights afforded to a parent, and (3) the husband is willing to take on the responsibility of paying child support.

The equitable parent doctrine has a long tradition here in Michigan and is recognized in many other states.  Ohio, Illinois, Wisconsin, Pennsylvania, Nebraska, New York, Kansas, Oregon and Massachusetts all apply this paternity doctrine in one form or another.  The doctrine is for the benefit of the child, not the parent. 

The Lipnevicius case is destined to return to the Michigan Supreme Court.  Justice Marilyn Kelly, among others, believes the Supreme Court should decide the unique questions of law presented in the case rather than leaving development of the equitable paternity doctrine to the intermediate appellate court.

The case goes to the heart of what constitutes a family and a parent.  Unfortunately, in the modern era of no-fault divorce, given the seemingly ubiquitous nature of contemporary adultery, our family law jurisprudence needs devices such as the equitable parent doctrine in order to protect our children from ourselves.

If you need legal guidance in matters of a parenting schedule, paternity or custody, contact our office to discuss your legal options.

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