Last year, DNA from an infant's blood sample was used to track down a sex crime suspect in New Jersey. Public defenders in that state are now trying to discover through an open records lawsuit how often law enforcement agencies have used blood samples taken from infants through a mandatory health screening program to support criminal investigations.

Health departments in all 50 states and the District of Columbia collect blood samples from newborns and test them for metabolic and genetic disorders. In New Jersey, all newborns are tested unless parents opt out on religious grounds.

In at least one instance, the New Jersey State Police subpoenaed the laboratory in charge of the screening program and used a baby's blood sample to create a genealogical map that allowed detectives to locate a man accused of a 1996 rape, according to a suit filed in New Jersey Superior Court last week.

While there are documented cases of police trying to obtain infant blood samples from state health departments' labs, the one in New Jersey is among the first known criminal cases where the practice has led to the prosecution of a suspect.

The public defender lawsuit and the underlying criminal investigation expose slippery slopes between health care and surveillance, genetic genealogy and privacy, and between the need to solve crimes and people's constitutional rights to due process.

"The danger is that you have the opportunity here for the police, potentially, to circumvent the warrant requirements," Jennifer Sellitti, the director of training and communications for the New Jersey Office of the Public Defender, told Law360. "Parents have a right to know how their children's blood is being used."

Her office had submitted an open request to the New Jersey Department of Health under the state's Open Public Records Act, asking first for redacted grand jury subpoenas it had received from law enforcement agencies. When that was refused, the office asked for at least an index tallying how many subpoenas were served on the Newborn Screening Laboratory and from which agencies.

After the department again refused to produce the records, the defender's office filed a suit to compel the records' release. The New Jersey Monitor, an online news publication owned by a nonprofit backed by Democratic donors, joined the suit. The Monitor first reported on the infant blood use earlier this month.

New Jersey Superior Court Judge Robert T. Lougy ordered the defendants to appear in court on Sept. 8 to respond to the suit. The New Jersey Department of Health declined to comment on the pending case.

Sellitti said the criminal case at issue in the complaint could be one of many instances of police using the blood stored by the newborn screening lab to investigate crimes.

"​​We need to know how often it is being used. That's step one," Sellitti said. "Then we go on to step two, which is: If it is a widespread practice, what do we do about it?"

How Genetic Sequencing Helps Investigations

When DNA evidence collected at a crime scene produces no hits with either state or national databases, police forensics sequences the genetic material through ​​single nucleotide polymorphisms, also known as SNPs, and creates a more complete profile for a suspect.

Because snippets of DNA are shared by members of the same family, investigators can use genetic sequencing to find leads. They can run a suspect's profile against other profiles stored on genetic genealogy websites, where people submit their DNA information looking for relatives and to inquire about family history. Sometimes, they get a lead.

"What they do is they find a family, a branch of a family tree, that has genetic similarity between the subject and the family," said Tamar Lerer, an attorney at the New Jersey public defender's office who specializes in forensics.

This type of investigative approach was used to identify Joseph James DeAngelo Jr., the serial murderer, rapist and burglar also known as the Golden State Killer, who was arrested in 2018 and is now serving a life sentence without the possibility of parole.

Since that case, more police departments across the United States have said publicly that they use genetic genealogy in connection with traditional DNA analysis to narrow down their searches for crime suspects, particularly in cold cases. According to a 2018 scholarly article published in Forensic Science International, genetic genealogy produced investigative leads in nearly 200 cold cases since the Golden State Killer case brought attention to the practice.

But often, when trying to figure out who in a family tree might be the suspect in a crime, police investigators often run into a wall: They don't have probable cause for a warrant to obtain DNA from any member of that family to find an exact match.

In the New Jersey case at issue in the suit, police forensics allegedly sidestepped that hurdle by subpoenaing the New Jersey Newborn Screening Laboratory and obtaining the blood sample from a child in the same family tree as the suspect's, sequenced it, and compared it to the crime scene DNA. The police eventually determined that the blood sample belonged to the suspect's son, who by that time was about 9 years old.

"Once they had that — the infant's DNA — they could figure out what their relationship is, because the closer your familial relationship, the more DNA you share," Lerer said.

An Open Records Suit

With the assistance of C.J. Griffin of Pashman Stein Walder Hayden PC, an expert in litigation under New Jersey's open records law, the Office of the Public Defender sued, arguing that the Health Department violated the Open Public Records Act and common law by refusing to release the records.

In the suit, public defenders argued the Newborn Screening Laboratory is legally only a witness in the criminal investigation process, and as such is not covered by the strong secrecy rules protecting grand jurors, prosecutors and court staff. But even assuming the lab was affected by those rules, they still didn't apply because the public defenders only asked for redacted records, the complaint says.

"We've asked for them to be redacted so that we don't know which newborn they've subpoenaed and which investigation it's for, and that sort of thing, but rather, just so that we can count the number of subpoenas that there are," Griffin told Law360. "I think that it was sort of alarming that there was such secrecy and that they wouldn't even tell us how many times law enforcement is doing it. They could have just told us and there wouldn't have been a lawsuit."

2 Jersey Shore Cold Cases, 1 Suspect

For over 25 years, the criminal case involving the rape of a 10-year-old girl in Egg Harbor City, New Jersey, in 1996, remained unsolved. Then, in January 2021, the New Jersey State Police and the Brigantine Police Department reopened the case. Months later came a breakthrough: Using genetic sequencing and family research, the state police found a match for the DNA recovered at the crime scene.

In a press release on Sept. 17, 2021, the state police said it used "various investigative means" to identify the suspect, Brian Lee Avis, who was later also charged with the 2003 rape of a 5-year-old girl from Galloway Township, New Jersey. Avis could not be reached for comment.

The timeline of the criminal investigation in Avis' case appears to be in harmony with the information in the open records complaint, which says that in August 2021, the state police served a subpoena on the Newborn Screening Laboratory, requesting access to the blood sample of a child born in 2012.

A spokesman for the state police told Law360 it "does not comment on pending litigation," but stopped short of confirming the defendant in the 1996 rape case mentioned in the open records suit is Avis. The New Jersey public defender's office also did not confirm it.

"The confidentiality rules are very strict and prevent us from commenting even when the point may be obvious," Sellitti told Law360 in an email.

Concerns About Privacy and Due Process

Between 24 and 48 hours after birth, nearly all babies born in the United States go through blood screening. A blood sample is taken from an infant's heel and transferred to a newborn screening card. Roughly one in every 300 newborns has one of the rare inherited disorders state laboratories screen for, and without immediate medical care, they risk dying.

Each state has different regulations on the number of disorders it tests for, and for how it stores the blood spots and the genetic information extracted from them. Michigan keeps the screening cards the longest —100 years.

Experts in genetic privacy and bioethics agree with medical experts that the screening programs serve a crucial public health purpose, but they warn their misuse can lead to blatant invasion of privacy and breach of Fourth Amendment rights against unlawful search and seizure.

"Just because an investigative technique facilitates solving crimes doesn't mean that we should always do it," Natalie Ram, a professor at the University of Maryland's Francis King Carey School of Law, where she writes about privacy and its intersection with the criminal legal system, told Law360.

"We have procedures in place, as demanded under our constitutional system, for regulating the boundary between government surveillance and individual privacy," Ram said. "And both of those are important, and we can have them both."

Ram, who authored an in-depth analysis of laws and regulations concerning newborn screening programs, published in June in the Texas Law Review, said a majority of states have laws that should at least in theory prevent access to blood spots or their genetic information as part of criminal investigations.

Law360 asked health departments in all 50 states if their newborn screening laboratories were ever subpoenaed for either blood spots or extracted genetic data as part of criminal investigations. A spokesperson for the Washington State Department of Health said the department was aware of at least one case in the past six years in which infant blood spots were subpoenaed as part of legal proceedings.

Spokespersons for health departments in California, Michigan, Texas and Missouri said infant blood samples can be used in criminal investigations in their states, but legal requirements vary. Some states, including Arizona, Colorado, Minnesota, Pennsylvania, Rhode Island, Virginia, West Virginia and Wyoming, said they do not authorize such use. Others did not respond to requests for information.

In California, at least five instances in which law enforcement sought warrants for blood spots have been reported. At least one of them led to the arrest of a suspect.

Crystal Grant, a molecular biologist and technology fellow at the American Civil Liberties Union Foundation who works on developing policy on genetic privacy and surveillance, told Law360 that research in 2018 estimated that about 60% of white Americans are already potentially identifiable to law enforcement because either themselves or members of their families have used genetic genealogy services. That share was projected to reach 90% by 2021 as more people sign up for these services.

The increasing popularity of consumer genetic technology poses even greater privacy concerns in light of documented intrusions of law enforcement into newborn screening programs, she said.

"The more the police try to hijack this health screening system meant to protect babies and turn it into their own personal genetic database to check for suspects, [the more] it risks making people not want to have their babies go through this screening system," Grant said. "It risks public trust of doctors and medical professionals and scientists. And that would be a huge loss. And additionally, it completely compromises genetic privacy."

--Editing by Robert Rudinger.