Why isn't Washington using DNA tool to solve crimes?

In early October, an arrest was made in the 1991 murder of Federal Way High School student Sarah Yarborough.

Three detectives who worked the case for nearly 30-years are frustrated it took that long.

“We certainly would have solved it much sooner than we did,” Kathy Decker, who has been with the King County Sheriff’s Office since 1985, told KIRO 7 after she helped close the cold case.

Retired Detective Jim Allen said he stayed with the KCSO “a couple of years extra” because of the Yarborough case.

Tom Jensen is also now retired from King County.

The veteran detective, most known for his decades of work on the Green River Killer Task Force, also investigated Yarborough’s murder for years. He, Allen and Decker all believe a suspect could have been identified 14 years ago if the state of Washington utilized familial searching.

“Knowing that the possibility was there in 2005, and knowing that 14 years passed, yeah, it’s frustrating,” Jensen said during a recent interview with KIRO 7.

It wasn’t until Oct. 2 of this year that 55-year-old Patrick Leon Nicholas was arrested in connection with Yarborough's murder.

The Covington man was charged with murder in the first-degree the following day.

However, a familial search could have provided a crucial lead more than a decade ago.

This is how it works: After a crime scene DNA sample is entered into the Combined DNA Index System, or CODIS, and does not lead to a match, software geared toward familial searching can determine if there’s a close relative already in CODIS;That means a parent, child or sibling.

A computer-generated list can then provide potential familial leads, which are then subjected to additional YSTR testing.

In the Yarborough case, the suspect's older brother, Edward Peter Nicholas Jr., is a convicted rapist and registered sex offender whose DNA was entered into CODIS in 2005.

After that entry was made, had DNA collected at the Yarborough crime scene been used in a familial search, a link to the older brother could have been made.

Further investigation would then have led to Patrick Leon Nicholas, according to Decker.  “Had we had the opportunity and the ability years ago to run familial testing, we would have identified, conceivably, that brother.  And it would have helped us to narrow down and figure out who ultimately was responsible for this particular crime,” Decker told KIRO 7.

Instead, Allen requested that DNA left at the Yarborough crime scene in Federal Way be used in a genealogy-related search, a process that took eight years and led all the way back to the year 1620 to establish any family link.

Nicholas’ DNA was related “to the Fuller family, which came over on the Mayflower” Allen said.

All three detectives believe a familial DNA search “would have been basically instantaneous,” according to Allen.  “I knew familial searching was available, but our lab wasn’t doing it.”

Decker added that “every county, city or state jurisdiction in Washington is going to have a case or two or three that would benefit from being able to utilize familial DNA testing,” which all three detectives say they’ve asked the Washington State Patrol Crime Labs to explore – with no success.

So KIRO 7 went to Olympia to ask the WSP’s director of communication why its five crime labs won’t use familial searching.

“It’s not that we won’t.  It’s that we don’t right now,” Chris Loftis responded.

Loftis explained that the state's crime labs have been ordered by the Legislature to process more than 9,000 backlogged rape kits by May of 2022.

So for now, a “change of direction” such as familial searching, is on the back burner.

“It’s not being ignored.  It’s not being dismissed.  It’s being evaluated,” according to Loftis. He explained the adoption of a new DNA strategy is not as simple as turning on “a light switch. This is a process. It’s a complicated process with legal, practical, ethical issues, and we just have to navigate all those issues.”

However, former California prosecutor Rock Harmon so strongly believes the legal argument against familial searching is a red herring, he flew to Seattle on his own dime to sit down for an interview with KIRO 7.

“There’s no legal issue you can pin on familial searching,” he said.

Harmon fought for familial testing in California, where it lead to the arrest and conviction of the "Grim Sleeper" nearly 10 years ago. In that case, a familial search first identified Lonnie Franklin Jr.'s son, who then lead to Franklin, who killed 10 women over a 22-year period.

Harmon explained the state of California allows DNA be used for familial searches every year.  In the Grim Sleeper case, no DNA match was made until the suspect’s “son had been arrested, convicted and was in the database (CODIS)."

"So when the son wasn’t there, nobody was on the list. When the son was in there, he’s the son or the father of the person who left the evidence” at Grim Sleeper crime scenes, Harmon explained.

Karen Klaas' California killer was also identified through familial DNA, as was the suspected murderer of LaTorrie Beckford and eight other victims in Arizona.

Familial searching also identified 54-year old Mark Mitcham, who is behind bars in Arizona for child molestation. His CODIS DNA led investigators to his brother, Ian Mitcham, who is now charged with the 2015 death of Allison Feldman in Scottsdale.

As a former prosecutor and forensic expert who has studied DNA evidence laws in Washington state and nationwide, Harmon has been arguing for years that there are no legal reasons against familial searching.

“There has never been a legal challenge to familial searching in 10 years. Now, you know defense attorneys are paid to challenge even the imaginable or barely imaginable,” Harmon said. “There’s no cognizable legal issue that you can base a legal challenge on” when it comes to familial DNA, he added.

Allen, Decker and Jensen have spent decades investigating homicides and other violent crimes – many of them cold cases, like Yarborough’s murder.

They told KIRO 7 they are weary of any roadblocks that keep them from doing their jobs and want familial searching available statewide as soon as possible.

The state “owes it to the public to let the police do the best job that they can.  And if familial testing is part of that, we should be doing it,” Jensen said.

According to Decker, “It’s ridiculous that we’re not able to solve cases that we could solve so easily.”

Click here or here for more resources on Familial DNA.

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