Appeals Court hears DNA privacy arguments in UAF cold case murder conviction

Downs’ attorney, Assistant Public Defender Emily Jura, argued Monday that the Alaska Court of Appeals should reverse Downs’ conviction. Assistant Attorney General Diane Wendlandt represented the state.

Chief Judge Marjorie Allard and Judges Tracey Wollenberg and Timothy Terrell heard the oral arguments at the Boney Courthouse in Anchorage. Each side had 30 minutes to present its case.

DNA search

DNA taken from Sergie’s body shared 23% of its profile with a match found in a genealogical database. An employee at the private genealogy company used public records to map out the individual’s family tree and identified Downs as a potential or likely match to the family member who had submitted her DNA.

Jura argued that the search of the genealogical database, GEDmatch, without a warrant violated Downs’ and his relatives’ right to privacy and should be subject to constitutional oversight.

“The investigative technique used here is both a method of surveillance and a search of private information,” Jura said.

She emphasized that Downs and his family member have a significant privacy interest in their shared DNA, and that “the information that DNA can share is information that our society recognizes as private.”

Jura contended that searching a consumer DNA database enabled surveillance and was inconsistent with a reasonable expectation of privacy.

Wendlandt focused her argument on the legality of the DNA search, describing forensic DNA as “the gold standard of forensic evidence.”

She argued that a private company developed a detailed DNA profile from the crime scene, found a familial match, and that a genealogist then used public records to build a family tree that placed Downs at UAF during the time of the murder.

“The express purpose of that website is to allow people to upload DNA profiles and compare it with anyone else who uploads their DNA profile, thereby finding family matches, which is what the police did here,” she said. “There is no reasonable expectation of privacy of DNA that is left at a crime scene.”

Wendlandt also argued that Downs, as a third party, could not assert his family member’s privacy rights, especially when the DNA was voluntarily submitted. She said law enforcement complied with GEDmatch’s requirements and terms of service.

“Privacy law, yes, I agree with counsel, needs to keep up with changing technology,” Wendlandt said, “but if you’re in a situation where you have a voluntary disclosure for the specific purpose of finding family matches, then what you have here is not an unreasonable search and seizure.”

Alternate confession

Downs’ defense attorney also argued that the trial court should have allowed the jury to hear recorded statements from Karen Moto, who told law enforcement in 2009 that her brother, Kenneth Moto, had confessed to killing Sophie Sergie. Kenneth Moto testified at trial that he did not commit the murder.

“This ruling was error, and it rose to the level of violating Mr. Downs’ right to due process as it excluded critical evidence based on credibility concerns,” Jura told the judges.

Jura said Karen Moto’s story never changed in the three interviews she gave to law enforcement, that her actions did not reflect fear of her brother, and that her statement could be corroborated by other witnesses. She also claimed other evidence tied Kenneth Moto to the crime, including what she described as “unique” information that he had a history of being a peeping tom in women’s bathrooms on campus.

Wendlandt argued that Karen Moto’s recorded interview did not meet the legal standards for hearsay exceptions.

“The bottom line is that Karen’s description of her brother’s alleged confession was not trustworthy,” Wendlandt said.

She noted a 16-year delay between the alleged confession and Moto’s interview, past instances of Karen lying to police, and a potential motive to shield family members from harm by keeping her brother in jail.

“The right to present a defense does not override the normal rules of evidence,” Wendlandt said.

Handgun possession

Law enforcement found a .22-caliber H&R revolver in Downs’ home in 2019. A Maine gun seller testified that he had sold a similar revolver to a man he believed was Downs in 2015.

Jura argued the trial court erred in allowing evidence about the revolver. She said the state’s theory — either that Downs was more likely to have owned such a gun in 1993 because he owned one in 2019, or that it might have been the murder weapon — was speculative and prejudicial.

“By allowing evidence and argument, including forensic evidence, to suggest a purpose that could not be established, this encouraged the jury to convict Mr. Downs based on speculation,” Jura said.

Wendlandt downplayed the importance of the revolver evidence.

“This case, as argued by the state, was a case about DNA. That’s what this case was about,” she said. “That was the core of the state’s case here, and it’s simply not possible that this gun evidence would have affected the jury’s verdict.”

The Alaska Court of Appeals will issue a decision at a later date.