Did efforts to catch killer invade privacy in search?
Company will require warrant in future
The DNA technology that might have helped solve the 43-year-old murder of a young Green Bay couple is under assault over privacy issues.
Raymand Vannieuwenhoven, 82, of Lakewood, was arrested in March and accused of raping 24-year-old Ellen Matheys and murdering her and her fiance, David Schuldes, at McClintock Park in northern Marinette County in July 1976.
Marinette County investigators had preserved a DNA sample collected from Matheys’ clothing for all these
years but were never able to match it to any DNA in the national police database. But last year, they sent a sample to a company called Parabon NanoLabs, based in Virginia. Parabon uses genetic genealogy, the same DNA technology used commercially to tell people their great-grandparents really emigrated from Italy, not France, to help police investigate crimes.
Parabon was able to use the DNA sample and a database made available by GEDmatch, the commercial genealogy company, to narrow the list of possible suspects to Vannieuwenhoven’s family. Police then tricked Vannieuwenhoven into giving up a new DNA sample that could be tested against the original evidence, and he was arrested in his home about 24 miles south of the murder scene.
Defense lawyer Lee Schuchart is considering challenging the use of trickery to get Vannieuwenhoven’s new DNA sample, but it’s the use of public, commercially gathered DNA data for crime-fighting that worries privacy advocates.
“We are deeply concerned,” said John Verdi, vice president of policy at the Future of Privacy Forum, a Washington, D.C., think tank that advises commercial genetic genealogy companies on best practices for maintaining public privacy. “We recognize DNA information can be used to solve crimes, to catch criminals and exonerate innocent people.
“But unfettered access actually would create enormous risk to the public, and we think the benefits of access can largely be obtained through the traditional legal process that is required of government, which is typically a warrant.”
People who submit DNA samples for their own private purposes aren’t doing so with the expectation the police or other representatives of the government will swoop in and use it for some other purpose, Verdi said.
“I don’t think anybody who submits their DNA intends to subject themselves to a perpetual criminal lineup based on their genetic data,” he said.
CeCe Moore, Parabon’s genetic genealogy team leader, believes the privacy concerns Verdi raises make little sense. If law enforcement or your insurance company wanted your DNA, they could get it any time, Moore argued.
“When you apply for life insurance, they do a physical anyway, they take your blood,” she said. “If they want to run a genetic test, they just will. They can follow you to McDonald’s and pick up your cup. Police won’t bother going through GEDmatch. They’ll compel you, or they’ll follow you as they do in all these cases. It’s really not that big of a risk.”
The value of justice prevailing in otherwise unsolved cases is worth the minimal risk to people’s personal privacy, she said.
Verdi disagrees. “Constitutional protections, due process protections are in place for really good reasons,” he said. “They have served us well for over 200 years. ... They are important checks on government power.”
Verdi’s think-tank group advises those commercial DNA companies to require a warrant, a requirement that probably would kill the kind of sweeping research that Parabon used to zero in on Vannieuwenhoven.
Verdi spoke of a serial-killer case that was investigated in Germany in recent years. DNA evidence collected at several of the murder scenes eventually pointed the way to a factory worker, Verdi said. But it turned out that the factory where the person worked had produced the cotton swabs that had been used to collect the DNA data. The person became embroiled in a murder investigation because cotton balls had been contaminated at the manufacturing site.
It’s true that police diligence eventually cleared the worker, but the story demonstrates how unfettered government access to DNA data can have lifechanging implications, Verdi said.
Requiring a search warrant inserts a neutral party, a judge, into the process to determine whether probable cause exists to allow police to obtain voluntarily submitted DNA evidence, Verdi said. That is consistent with the Fourth Amendment of the Constitution’s protection of citizens against illegal search and seizure, which provides similar protections for a person’s electronic data and other matters of privacy.
Few judges would be willing to issue a blanket warrant, one that would allow a company or law enforcement agency to compare an individual’s DNA code against a million or more of others, Verdi said.
59 successful IDs
As the argument gets played out, Parabon is feeling the pressure, because the work requires access to databases, and those are beginning to dry up as companies respond to privacy concerns.
In response to public outcry over privacy concerns, GEDmatch recently declared it would not share DNA code in its database with law enforcement unless its customers sign off on it or unless someone obtains a search warrant.
That leaves the FBI database, CODIS, but the police departments nationwide that feed that database capture only 20 genetic markers — those deemed to be the least intrusive into people’s health and other areas of privacy — so that would limit Parabon’s genealogical research.
Parabon still has access to a few small data sets, and it already has the information it needs for some 200 cases it’s been working on. But the issue has had a significant impact on its ability to help police with everything from identifying abandoned babies and murder victims to capturing suspects like Vannieuwenhoven.
Parabon has been around and working with DNA-based nanotechnology — science at the atomic, subatomic and molecular level — since 2005, but it’s only been in the last 13 months that the company has been doing forensic investigations of the type that has been proving of use to law enforcement.
Since then, the company has conducted 59 successful identifications for law enforcement, Moore said.
The cases are still too new to have led to more than a handful of criminal convictions — the most recent being July 1, with the conviction of William Talbott in Snohomish County, Washington, for the November 1987 murders of a young Canadian couple.
“Not every case results in an arrest,” Moore said. “In some cases, the suspect was deceased. We’ve also had a handful where the DNA was used to identify the crime victim, not the perpetrator.”
Educated guess
Police have been using DNA for years to identify suspects, but Parabon’s role is something new, something special. Parabon examines 850,000 DNA markers — police labs are limited to 20 — to help develop a profile of the suspect.
Parabon uses a combination of genetic genealogy and forensic genotyping that allows the company’s scientists to accurately predict ancestry, eye color, hair color, skin color, freckling and face shape, all from DNA markers.
Using DNA eventually traced to Vannieuwenhoven, Parabon was able to establish with 93.4% confidence that the suspect police were looking for had skin that was fair or very fair. With 92.6% confidence, they could say his eyes were blue or green. With 99% confidence, they could say his hair was reddish and with 99.7% confidence he had at least some freckles.
What they couldn’t say, not knowing the age or body-composition of the suspect at the time of the murders, was whether he still had hair on his head, wore facial hair, how wrinkly he might be, whether he was fat or thin.
But they could use DNA signals for making some predictions about face shape, size of jaw, distance from nose to forehead, that kind of thing, Moore said.
They came up with computer-assisted composite sketches, showing what the suspect may have looked like at ages 25 and 65.
Climbing the family tree
Where Parabon went from there was certainly a factor for law enforcement. Using GEDmatch’s database of
about 1 million people, Moore and her team compared contributed DNA samples to the DNA evidence that police had collected from Matheys’ clothing.
Moore and her team began to find people who shared at least some genetic coding with the suspect. She would not say specifically which distant family member’s DNA put her on Vannieuwenhoven’s trail, but that genetic clue led to other distant relatives until, leaf by leaf and branch by branch, Moore could reconstruct Vannieuwenhoven’s family tree.
It took until December 2018 for Moore to narrow the suspect pool in the murder of Matheys and Schuldes to a specific family: Edward and Gladys Vannieuwenhoven, any of their four sons, or any of their four grandsons. That’s as far as Parabon was able to take it, without having a specific DNA sample to compare against the preserved evidence. The rest would be up to police.
Connecting the dots
Early this year, Detective Todd Baldwin of the Marinette County Sheriff’s Office grabbed a garbage bag from the front curb of Cornelius Vanneiuwenhoven, one of the Vannieuwenhoven sons. DNA collected from a discarded pair of socks, a bandage and an inhaler was sent to the State Crime Lab for analysis. The DNA ruled out Cornelius as a suspect but confirmed he was from the same paternal line as the suspect.
Baldwin then turned his attention to a brother, Edward Vannieuwenhoven, who lives next door to a retired Oconto County sheriff’s detective with whom he was on friendly terms. The retired detective provided Baldwin with a coffee cup Edward had drunk from at his house. DNA collected from the lip of that cup also didn’t match the suspect profile, though it also confirmed it was from the same paternal line.
The third brother Baldwin turned to was Raymand, who lived in the town of Lakewood in Oconto County. Baldwin enlisted the help of Oconto County Chief Deputy Darren Laskowski, who asked Vannieuwenhoven to fill out a brief survey about policing in the county.
Laskowski had Vannieuwenhoven complete the survey, then seal it in an envelope, which required licking. That provided Baldwin with the DNA sample he was looking for, and the state Crime Lab analysis definitively proclaimed it matched the DNA sample collected from Matheys so many years ago.
That’s the part that defense lawyer Schuchart expects to challenge before Vannieuwenhoven goes to trial.
Detectives failed to get a search warrant but instead resorted to trickery, Schuchart said.
“I definitely think there could be grounds to challenge the DNA collected, not just because of the deceit but because it happened in the client’s house,” Schuchart said. “I know the police are allowed leeway to some extent, but in a home, which is more constitutionally protected. … I have never seen a case where ... trickery and deceit were used to obtain evidence from within a home.”
Vannieuwenhoven’s advanced age and susceptibility to deceit could also be a factor, Schuchart said.
With the constitutionality of the search under question, that could shift the burden to the prosecutors to justify the warrantless search, he said.
If a judge decides it was an illegal search, that would disallow the use of the DNA evidence, and, under the “fruits of the poisonous tree’’ doctrine, any evidence derived from that illegally seized evidence would also be disallowed, Schuchart said.
In any case, even if he doesn’t succeed in getting that DNA test thrown out of court, it’s important to remember the DNA by itself doesn’t really prove anything, Schuchart said.
“The DNA doesn’t provide a timeline, so even if it is his DNA (that was on the victim’s body), no way does that mean he was necessarily the person who killed her,” Schuchart said.
Nor does the simple presence of his DNA imply the sex was not consensual, he said.
Vannieuwenhoven is next scheduled for a Sept. 27 status conference before Marinette County Circuit Judge James Morrison. Schuchart said the plan is to give the judge some kind of idea of what’s coming in the way of motions and pretrial arguments. Schuchart said he won’t know until near then whether he will challenge the method used to collect Vannieuwenhoven’s DNA.