Rapid DNA, a police tool, faces backlash from forensics experts

By Maura DolanStaff Writer

Sept. 25, 2019 5 AM PT

For decades, scientists have used ever-improving DNA forensics to help solve crimes and detect suspects in cold cases such as the Golden State Killer. But it has never been quick work: Laboratory analyses of genetic evidence can take weeks, even months to complete.

That could all change, if private companies succeed in widely marketing a device called “Rapid DNA.”

The printer-sized boxes — costing up to $250,000 apiece — can analyze a sample of blood, saliva or other biological matter in about 90 minutes, and they have a number of potential applications. A machine developed by Colorado-based ANDE Corp. helped identify victims of the 2018 Paradise fire and the more recent Conception dive boat disaster.

But it is the prospective use of Rapid DNA in criminal investigations that is setting off alarm bells. Both privacy advocates and some forensic scientists fear police will abuse the technology to test people without their informed consent, or to mishandle evidence that could compromise prosecutions.

“There is no question that getting faster DNA results is good for everyone in the criminal justice system,” said Lynn Garcia, general counsel of the Texas Forensic Science Commission.“ But we have to be sure that any technology is ready for prime time and is reliable and that the people who are using it are trained.”

Two companies dominate the U.S. market for Rapid DNA, Colorado-based ANDE and Massachusetts-based Thermo Fisher Scientific. They stand to capitalize on the mushrooming demands for DNA analysis, and both are seeking to change state and federal laws so they can expand use of their machines.

In California, Contra Costa, Sacramento and Orange counties have acquired the devices, and both the Los Angeles Police Department and the Los Angeles County Sheriff’s Department are trying to do so, as part of an FBI pilot project. Proponents say Rapid DNA would allow officers to more quickly identify a serial rapist or even a murderer, preventing suspects from slipping from their grasp.

In June, U.S. Immigration and Customs Enforcement issued a $5.2-million contract to one Rapid DNA company to determine familial relationships of migrants at the border and to deter fraud and human trafficking.

There is no question the devices work well on “single-source DNA,” genetic material that comes from a single person. The problem comes when there is a mixture of DNA from multiple individuals, said Vincent A. Figarelli, superintendent of Arizona’s Crime Laboratory System. In those situations, a trained forensic scientist is needed to interpret it.

“Mixture interpretation is the most difficult thing that crime laboratory analysts have to do by far,” Figarelli said. “There’s no way you want a Rapid DNA operator doing a mixture analysis.”

Another concern is that police might consume an entire genetic sample while conducting a Rapid DNA test, leaving nothing for an accredited laboratory or the defense in future court proceedings.

In Kentucky — where it is a felony to completely consume a DNA crime scene sample — ANDE and Thermo Fisher last year approached state law enforcement, misrepresenting their products’ immediate potential, said Laura Sudkamp, director of the state police forensic laboratory.

“I jumped all over them,” Sudkamp said. “They were not telling the truth.”

Ron O’Brien, a spokesman for Thermo Fisher, said the company was unaware of any employees improperly promoting the product in Kentucky. Jim Davis, chief federal officer for ANDE, said some laboratories feel imperiled by the new technology and underestimate the abilities of law enforcement.

In Texas, the practices of ANDE prompted some to worry about a rushed rollout.

In May, the Texas Forensic Science Commission learned that ANDE and a Houston hospital had entered into an agreement to test rape kits with Rapid DNA, without the written consent of victims or knowledge of forensic scientists. The company claims the Houston Forensic Science Center knew about the project, a claim Peter Stout, who heads the science center, disputed.

Also in Houston, police were found to be using Rapid DNA on a variety of crime scene evidence, without alerting the Houston science center, according to Stout. After the Texas forensic commission learned of the practice, prosecutors decided they had to inform defense lawyers in about 80 cases that the DNA results had been obtained outside of a laboratory, potentially compromising the prosecutions.

The forensic commission in June told ANDE to stop all Texas projects that did not involve an accredited DNA laboratory. That prompted criticism from Davis, who said his company was being targeted by “a small number of entrenched labs, which frankly, are feeling threatened.”

Records show that ANDE has hired various lobbyists to promote Rapid DNA in Congress. Thermo Fisher has also contracted with several firms, including Gordon Thomas Honeywell Governmental Affairs.

The company announced in January it had hired ex-congressman Dave Reichert to work on “policy changes necessary so law enforcement can harness the power of Rapid DNA.” Reichert, a former county sheriff in Washington state, became nationally famous in 2001 when he used DNA analysis to help catch the Green River Killer.

DNA companies are pushing for changes in state laws so police can more easily use Rapid DNA on suspects as soon as they are arrested.

Roughly 30 states allow immediate DNA testing of crime suspects — including California, which permits it for all felony arrestees. Several states have no such laws, or limit such testing to only the most serious felony cases.

Federal laws and regulations also limit the use of Rapid DNA. The FBI currently refuses to allow any profiles produced by the devices to be uploaded to the national offender database. Five states, including California, are part of a pilot project to test the machines at booking stations, where genetic profiles of arrestees eventually will be uploaded to the national database for searches.

In a 2017 Swedish study, crime scene DNA was tested on a Thermo Fisher device and reportedly produced one inaccurate profile and posed risks of contamination and sample mix-up. A company spokesman declined to comment on the study.

Arizona’s Figarelli said the devices work well if technicians are trained to operate them and if forensic scientists are on call to assist law enforcement.

“If you set up your program properly, you can use these instruments on crime scene samples — just not on all,” said Figarelli, adding that ANDE has been aggressively marketing the machines in Arizona.

Since Arizona validated Rapid DNA in 2014, about 400 cases have been run on the machines, and all the results have been replicated in the laboratory, Figarelli said.

The Orange County district attorney‘s office has used a Rapid DNA instrument for about five years. The office runs crime scene samples against a database the office built from misdemeanor offenders who agreed to DNA testing as part of plea agreements. The database currently includes about 187,000 individual DNA profiles, and has been controversial among privacy advocates.

Prosecutors use two forensic scientists to review the genetic profiles produced by the device. They also limit testing to biological samples that are likely to have come from a single person, according to the district attorney’s office.

As of July 1, a device produced by a company that was later bought by Thermo Fisher had tested samples from 373 cases, and obtained 118 hits from profiles in the district attorney’s database. Prosecutors filed charges in 95 of those cases. Convictions were obtained in 75% of them, and 24% of the cases are pending, according to the district attorney’s office.

Meanwhile in Kentucky, Sudkamp has been testing an ANDE machine in the laboratory to match genetic profiles from new rape kits against a copy of the state’s offender database. She said the laboratory can remove most of a victim’s DNA, leaving only the profile of the attacker.

Sudkamp said the device has worked well so far, but she wants to ensure that others who use it in the future are trained and certified and protocols are in place.

“You have to make sure that it works before you let anything loose,” Sudkamp said.