Suffolk District Attorney Daniel F. Conley defended investigators’ use of clandestine tactics to obtain a DNA sample from a relative of Albert DeSalvo, who police now believe with new certainty was responsible for at least one of the Boston Strangler murders.
A half-century after the spree of killings stuck fear in the Boston area, authorities have been able to match biological evidence from the Beacon Hill scene of the murder of 19-year-old Mary Sullivan to a member of the DeSalvo family. They expect further testing will match the evidence directly to Albert DeSalvo who died in prison in 1973, serving a sentence for another crime. The DNA came from DeSalvo’s nephew, who was tailed for days earlier this year by police who confiscated an empty water bottle that he threw into a garbage can.
Family members said Thursday they were outraged by collection of the DNA without their permission. But Conley maintained Friday that police were well within their rights — a position with which legal professionals agree.
“What we did in this case was fair and ethical,” Conley said at a news conference at the district attorney’s office in downtown Boston. Asking the DeSalvo family for their relative’s DNA, he said, “would have alarmed them, would have angered them, would have upset them. We didn’t want to do that.”
Conley said authorities decided that “this was the best technique.”
‘It’s pretty clear that any kind of discarded material is fair game.’
Family members have insisted that they would have provided a DNA sample if investigators had asked. But police did not know that was the case, Conley said, and asking for permission in advance could also have prompted a legal battle and slowed down the investigation.
Additionally, he said, if DeSalvo’s DNA did not match, investigators did not want the word to get out that they had reopened the case.
“If it was not Albert DeSalvo, we would have alerted the real suspect that we were on the case again,” Conley said.
The DNA sample from DeSalvo’s nephew was tested by two private DNA testing firms. On Friday, investigators exhumed DeSalvo’s remains, hoping to further confirm, with tests on a sample taken from his remains, that it was DeSalvo who killed Sullivan.
In addition to DeSalvo’s family, civil rights advocates have raised concerns about the propriety of law enforcement agencies’ collecting DNA from people not accused of a crime without their knowledge or permission.
Christopher Ott, spokesman for the American Civil Liberties Union of Massachusetts, said he could not comment on whether the police tactics in obtaining the DNA were inappropriate, or whether the practice should be barred. But, he said, it’s easy to see why the practice raises red flags.
“We appreciate the strong public interest in solving this case,” Ott said, “but the reports about what happened confirmed one of our suspicions, which is that the people who might be targeted for this kind of investigation aren’t just those suspected of criminal activity but those who are simply related to people who are suspected of criminal activity.”
He continued, “It’s not hard to understand why people would be uncomfortable with having samples of their DNA collected and used without their knowledge.”
But Rosanna Cavallaro, a professor of law at Suffolk University, said police in this case were operating within the bounds of the law.
People not suspected in a crime are allowed “a reasonable expectation of privacy” under the law, Cavallaro said. But people cannot argue that an item was private if they abandon it in a public place, she said. And in an age of “CSI: Crime Scene Investigation” and “Law & Order,” she continued, it is difficult to make the case that anyone would not be aware that DNA could be gleaned from a cup left in public.
“It’s pretty clear that any kind of discarded material is fair game for the police to retrieve and use to obtain information,” she said. “If I take a cup and throw it in the garbage, that’s saying to the world, ‘I lost interest in this, it’s not important to me, and I no longer care what happens to it.’ ”
Conley said Friday that enhanced DNA testing has allowed the agency to solve an increasing number of cold cases that were once believed to be unsolvable, such as the 1984 murder of Elsie “Yolanda” Hernandes in a vacant Roxbury lot. Sultan Omar Chezulu was convicted of the killing in 2010, after improved technology allowed investigators to find a DNA match.
Conley is hopeful that the technology will be used more frequently in the future. But, he said, the state’s ability to use DNA evidence for convictions in both cold and current cases remains hampered by a shortage of samples in the state’s DNA database because of limitations on the situations in which police can collect saliva swabs.
“Massachusetts is behind other states in terms of our collection of a database of other potential suspects,” Conley said. “We don’t have the same quantity of specimens in the index like other states do.”
More than half of the states have passed legislation that allows police to routinely collect DNA of anyone arrested for a serious crime — a practice that was ruled constitutional by the US Supreme Court last month.
“In other states, they have more hits, and the more hits you have, the more cases you solve,” Conley said. “We do not swab, and in other states they do. I suggest and submit that we should be doing that here . . . we could likely solve more cases.”
But a spokesman for Conley said DNA data collected from people who are not the subjects of an investigation, such as DeSalvo’s nephew, would not be entered into a crime database.