Last fall, I attended a continuing legal education conference focused on sex crime defense and an outstanding speaker—who discussed the emerging field of forensic genetic genealogy—mentioned The Genetic Detective, a six-episode reality TV series that aired on ABC in 2020. The reference came from a credible source, so I figured it was worth viewing.

‘The Hot Case’

CeCe Moore, a genetic genealogist who originally worked more toward helping people discover their biological identities and lineage, utilizes The Genetic Detective to recount various situations in which she assisted law enforcement in solving cold cases.

Not knowing where to start, I visited the show’s IMDb page and discovered that “The Hot Case” (the last episode in the series) was the most applicable to my trial work. I was able to view it for free at ABC.com.

The episode focused on a 79-year-old woman from St. George, Utah, who was raped in her home as she slept. Law enforcement was alerted to the attack and immediately conducted a crime scene investigation. They located a large portion of genetic material, namely seminal fluid, that they attributed to the assailant.

The material was collected and submitted to the Combined DNA Index System, a database known as CODIS, which is used by law enforcement to compare unknown DNA profiles to known profiles collected from offenders and missing persons. But the submission didn’t return a result, so a St. George police detective reached out to Moore in hopes that her methods could help.

Moore employs a database of genetic material submitted by individuals who want to discover their genealogy. As the episode plays out, we learn about a divide between those who feel using these family tree-type databases for law enforcement purposes is an assault on privacy rights and those who favor the trade-off of solving cold cases.

The rape was Moore’s first open case. I don’t want to give away too much because the episode, and likely the series as a whole, is worth watching.

Interestingly, “The Hot Case,” takes a meta approach to the science by also incorporating the then-ongoing William Earl Talbott II litigation. Tabbott was charged in 2018 with the 1987 murders in California of Canadian teenagers Jay Cook and Tanya van Cuyklenborg. Moore had aided law enforcement in apprehending Tabbott, and the episode is able to show how the trial played out in real time.

Which is important to Moore and the system as a whole: This was the first time genetic genealogy had been used at trial. The method was allowed as admissible and helped secure a double-murder conviction. In 2024, the Washington Court of Appeals affirmed Talbott’s judgement and sentence, with a directive that the trial court strike a firearm enhancement. The state supreme court denied review the same year.

DNA evidence in a criminal prosecution

Moore works backward with the relevant and available DNA profiles, and her discussion and demonstration of how she does so is remarkable. But I’ve yet to see genetic genealogy used firsthand in a criminal case.

I wouldn’t be surprised if it comes up, though, as prosecutors will try to employ genetic evidence any chance they have. After all, the only thing better than DNA evidence for a prosecutor is a confession. Actually, some might argue that DNA evidence is still the preferred ammunition. Science is objective.

More importantly, the general public swallows it hook, line and sinker. DNA is a complicated subject, and most receive only limited information through media saturation.

Consequently, those litigants willing to put in the time and effort to further educate themselves will be ahead in the ball game. I know that sounds self-evident, but the uninitiated would be surprised to learn how many players in the legal arena lack more than a basic understanding of a topic that sometimes determines life and death.

And that is scary because when the science is really examined, in my experience, it becomes clear that most situations involving DNA are far from the clear-cut conclusions they initially appear to be.

Turning an obstacle into an advantage

You win your cases at your desk, not inside the courtroom. Many times, if you know the subject better than your adversary, the conclusion isn’t the crux; it’s the delivery that matters most.

Think about it: Suppose you’re defending someone charged with a shooting. In that case, you need to educate yourself on the qualities of gunshot residue, blood splatter evidence, different calibers of firearms, rifling and impressions, among other things. If it’s an arson allegation, you have to be up to snuff on burn patterns, accelerants and smoke and flame colors. Even when it comes to something like a simple DUI, you need to understand the ins and outs of standardized field sobriety tests, gas chromatography, chemical tests, and drug and alcohol metabolization.

The same goes for cases that involve DNA. In order to speak intelligently with an expert on the subject, you have to educate yourself. It’s necessary to read relevant literature to establish a firm grasp on the subject’s essential aspects and stay abreast of developments in the field.

Maybe even more important than speaking with an expert on cross-examination, though, is speaking with a potential jury during voir dire. To the degree allowed by the court, you want to educate the prospective fact-finders. The only way to make that process smooth is to know the material well enough to boil it down to terms and analogies that will resonate.

After all, did you know you can deposit your DNA through secondary and even tertiary transfer? Moreover, there’s literature that discusses quaternary transfer, which is a DNA transfer from one person to another whom they never even touched. For instance, let’s say someone touches a doorknob. Someone else then touches that same doorknob and then touches their car door. A third person later touches that same car door. That third person has now potentially acquired the first person’s DNA, even though they never had contact with them.

Also, were you aware that we can deposit our DNA through aerosol transfer simply by speaking? Most people, and plenty of attorneys, have no idea about these mechanisms.

And that’s just the tip of the iceberg. The existence of DNA merely shows that genetic material is present. Every other circumstance is still subject to multiple facts, considerations, circumstances and interpretations. Those interpretations can lead to innocent explanations if you understand the science.

Adam R. Banner is the founder and lead attorney of the Oklahoma Legal Group, a criminal defense law firm in Oklahoma City. His practice focuses solely on state and federal criminal defense. He represents the accused against allegations of sex crimes, violent crimes, drug crimes and white-collar crimes.

The study of law isn’t for everyone, yet its practice and procedure seem to permeate pop culture at an increasing rate. This column is about the intersection of law and pop culture in an attempt to separate the real from the ridiculous.

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This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.

I was hopeful that Max’s Justice, USA, a six-part documentary series about Tennessee’s criminal justice system, would deliver its marketing promise of a “compelling, insider’s view of Nashville’s criminal justice system.” Sadly, it fell short.

There is some pedagogical value to shows such as Justice, USA, which provides access to men’s, women’s and juvenile jails, along with details that inmates and law enforcement struggle with, such as the effects of incarceration, mental illness and addiction. The series’ offer of a “360-degree” approach could go far in helping to educate viewers.

That sounds great in theory for those looking to understand the criminal justice system. But if you’re not involved with it, you don’t see what happens behind closed doors, and you don’t get a clear view.

And the incarcerated people’s stories will never go away, even if they get clean and turn their lives around. What’s on the internet and streaming services will live on forever.

Moreover, the series has thus far failed to explain some of the most counterintuitive aspects and sex-based discrepancies of American sentencing and incarceration.

Detained discrepancies

“Women, Incarcerated,” the fourth episode, piqued my interest. Since 2014, I’ve written about the astronomical number of incarcerated women in the United States specifically and my home state of Oklahoma generally.

According to the Prison Policy Initiative, as of March 5, there are 190,600 women and girls incarcerated in the United States. Over recent decades, women’s incarceration has increased at twice the pace of their male counterparts.

Over 25% of women who are incarcerated have not been convicted, and 60% of women in jails under local control (usually city or county jails) are incarcerated pending trial, as they are unable or decide not to post bail in their case.

But it’s not just the sheer number of women held in prisons and jails. Women have a higher mortality rate than men in jails; they die of drug and alcohol intoxication at twice the rate. Women are also more likely to become incarcerated with a preexisting medical issue or a mental health issue.

Different crimes, same times

Compared to men, women are often disproportionately charged and sentenced. For example, Oklahoma’s child abuse and neglect statute punishes mothers who arguably engage in child neglect, which is defined, among other things, as various omissions, such as failure to supervise, feed or provide children with enough nurturance and affection.

The statute also includes situations in which an adult doesn’t protect a child from exposure to illegal activities or sexual materials that are not age appropriate.

In the same vein, the “failure to protect” definition includes the conduct of a nonabusing parent or a guardian who “knows the identity of the abuser or the person neglecting the child but lies, conceals or fails to report the child abuse or neglect or otherwise take reasonable action to end the abuse or neglect.” Oddly, child neglect and child sexual abuse can both include life sentences.

Prosecutors have quite a bit of leeway when arguing the specific actions—or more often inactions.

The fifth episode of Justice, USA included the struggle that one inmate faced as she tried to live with herself through charges related to an overdose suffered by her toddler daughter after the child accidentally ingested some of her mother’s narcotics. The mother genuinely appears to love and miss her daughter, and the sorrow is evident. But her neglect as a drug addict kept her from protecting the toddler.

Situations such as that don’t have much middle ground. The mother’s recklessness still had a high likelihood of ending in tragedy. After all, the neglect was an obvious and apparent consequence of the mother’s failure to protect her child. That isn’t always the case for failure to protect and child neglect charges, though.

Take Tondalao Hall, for example.

An Oklahoma judge sentenced Hall to 30 years in prison because her boyfriend broke her child’s ribs and femur, and Hall “failed to stop him.” The boyfriend? He got two years.

Make that make sense to me.

Hall’s story was relayed by Samantha Michaels and published in Mother Jones in an excellent piece that highlights multiple Oklahoma women who suffered abuse at the hands of the men who ultimately abused their children, as well. Many of the women profiled received longer sentences than the men who actually physically abused the children.

I understand the position: As a society, we think that mothers should and will do anything in their power to protect their children. But what happens when the mother’s psyche is so destroyed by the abuse that she suffers that she can’t? The mind is powerful, but it can be damaged.

Maybe you argue that responsible women should never put their children in such a situation to begin with, or that she should just leave and take the kids. But ask yourself: Why would she stay if she really could leave? It’s a difficult question without an easy answer.

Questions such as these escape any analysis in Justice, USA. I understand if the series is restrained on how deep it can delve, but it’s a shame that it missed the chance to educate a huge audience on a systematic miscarriage of justice. If nothing else, the series was tailor-made for exploring the problem—at least from a surface level.

Things might start to change if the public has more exposure to the problem.

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Adam R. Banner is the founder and lead attorney of the Oklahoma Legal Group, a criminal defense law firm in Oklahoma City. His practice focuses solely on state and federal criminal defense. He represents the accused against allegations of sex crimes, violent crimes, drug crimes and white-collar crimes.

The study of law isn’t for everyone, yet its practice and procedure seems to permeate pop culture at an increasing rate. This column is about the intersection of law and pop culture in an attempt to separate the real from the ridiculous.

---

This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.