FAIRBANKS, Alaska — An Auburn, Maine, man who was found guilty in the 1993 sexual assault and murder of an Alaska woman is challenging the constitutionality of how his identity was discovered through a relative’s DNA.

Steven H. Downs Androscoggin County Jail

Steven Harris Downs, 49, was sentenced two years ago to 75 years in prison — 67 years for murder and eight years for sexual assault — by a Fairbanks Superior Court judge after a three-week jury trial.

Downs’ court-appointed lawyer, Emily Jura of the Alaska Public Defender Agency, filed a 69-page brief May 17 outlining her three points of appeal.

First among them is that Downs never volunteered to give a sample of his DNA, and genetic genealogy databases were searched without a warrant.

The method by which Downs was identified as a suspect was a violation of his Fourth Amendment protection against unreasonable search and an infringement on his reasonable expectation of privacy, Jura wrote.

Downs’ lead trial lawyer, James Howaniec of Lewiston, Maine, first raised the DNA consent issue in a pretrial motion in an effort to keep that evidence from being shared with jurors.

The judge denied his motion.

Howaniec raised the issue again after Downs’ conviction.

Again, the judge rejected that argument.

Howaniec said Thursday that he expects Downs’ case could set a legal precedent.

“We think this is an issue that is going to work its way up to the U.S. Supreme Court,” Howaniec said.

Though Downs’ case isn’t the first time a defendant has been identified as a suspect through the genetic profile of a relative, most of those cases never went to trial.

That’s what happened in the case of the Golden State Killer, Joseph DeAngelo, who pleaded guilty to the murder of 13 people and the sexual assault of roughly 50 women in California during the 1970s and ’80s.

If the Alaska Court of Appeals were to rule in favor of Downs, his case would be dismissed, Howaniec said

“It’s an interesting confluence of the law and science and how it’s ever-evolving,” Howaniec said.

At issue is the manner in which police matched Downs to DNA that was collected in the form of a swab of a minute amount of semen found inside the body of Sophie Sergie, 20, of Pitkas Point, Alaska, whose cause of death was determined to be a .22-caliber gunshot to the back of her head.

Sergie, who had previously been a student at University of Alaska Fairbanks, had returned for a dental appointment and she had been visiting friends on campus.

Her body was found on April 26, 1993, in the bathtub area of the women’s bathroom on the second floor of Bartlett Hall at the school.

Downs was a freshman at that time, living on the third floor of that dormitory.

DNA EVIDENCE

Alaska State Police had sent that DNA evidence, along with DNA evidence collected from the scenes of cold cases, to a DNA testing company which, in turn, sent it to Parabon NanoLabs in Virginia in an effort to create a profile of the murder suspect.

The genetic information derived by Parabon from the crime scene DNA evidence was then provided to a Florida company called GEDmatch, which uses DNA information submitted by subscribers of genealogy DNA testing services, such as Ancestry.com, who give their permission for their DNA profiles to be used by GEDmatch and shared with law enforcement to create a database from which overlapping DNA profiles can be determined.

GEDmatch returned results that identified anyone in their database who shared significant amounts of DNA with the unknown sample given to Parabon by Alaska State Police.

That’s how the DNA sample provided to the commercial genealogy website by Downs’ aunt eventually pointed to him, through genetic genealogy analysis.

Howaniec noted Thursday that one of the co-founders of GEDmatch had testified at Downs’ suppression hearing in 2021 that “it was never their intention when they founded the company that this evidence would be accessed by law enforcement and used as part of forensic investigations.”

In fact, sometime after the Golden State Killer case, along with a number of other cases that used similar genetic genealogy analysis, GEDmatch “actually changed its policies to require that warrants be required before they can release any of (their) information to law enforcement,” Howaniec said.

Jura wrote that Downs’ conviction should be overturned because he never gave his consent to have his DNA collected and tested.

Jura challenges the collection and testing of Downs’ DNA, calling it an unconstitutional search.

Sergie’s cold case was revived in 2018 when the DNA of Downs’ aunt appeared to be a random hit to the semen found in Sergie, the only physical evidence linking Downs to the crime.

His aunt had previously submitted her DNA to a genealogy website, but it was later analyzed for blood relatives against DNA evidence collected from the crime scene nearly three decades earlier.

Jura wrote that Downs “had a subjective expectation of privacy in these shared segments of his own genetic code” with those of his aunt.

It was only after analysis of his aunt’s DNA that Downs was identified as a possible suspect and a search warrant for his DNA was secured and executed.

“Courts generally presume individuals have a subjective expectation of privacy in their own DNA, at least until they voluntarily relinquish it to law enforcement,” Jura wrote.

The judge had denied Downs’ pretrial motion to suppress the DNA evidence and it was presented by prosecutors at trial.

WRONG GUN

Another point of Jura’s appeal argues that the judge shouldn’t have allowed evidence at trial that Downs owned a .22-caliber revolver in 2019.

In Jura’s brief, she wrote that Downs had filed a motion before trial seeking to exclude evidence related to his possession of a .22-caliber Harrington & Richardson revolver that was recovered during a police search of his home in 2019.

“Specifically, Downs argued that evidence of weapons he possessed in 2019 had no relevance or conditional relevance to whether he committed a murder in 1993, was more prejudicial than probative and amounted to impermissible propensity evidence,” Jura wrote.

At an evidentiary hearing, prosecutors presented evidence that suggested Downs kept a .22-caliber revolver in the dorms with him in 1993, when he was a student at the University of Alaska Fairbanks.

Downs denied having a .22-caliber gun at the time of Sergie’s murder and said in 2019 that he had bought his .22-caliber H&R pistol a few years earlier from a gun seller in Livermore who had advertised in a local magazine.

Ballistics experts testified at trial that the slug recovered at the crime scene was too damaged for comparison to a specific gun.

ALTERNATIVE SUSPECT

In her third point of appeal, Jura wrote that the reported confession of an alternative suspect should have been allowed into evidence at trial.

Kenneth Moto had attended the college at the same time Sergie’s was murdered, Jura wrote.

Police questioned him twice as a suspect or person of interest and there was evidence supporting a connection of Moto to the murder, Jura wrote.

But, Moto had been excluded as the source of the DNA found in Sergie’s vaginal swabs at the crime scene, though his fingerprints hadn’t been tested or excluded, Jura wrote.

Moto had testified at trial, denying he had killed Sergie. He also denied telling his sister, Karen Moto, that he had killed Sergie; Karen Moto died before Downs’ trial and Downs had asked the trial court to introduce her 2009 statements to police that her brother had confessed to her that he had murdered Sergie.

By excluding evidence of Moto’s confession, the judge violated Downs’ constitutional right to due process, Jura wrote.

Howaniec said Thursday that he and other members of Downs’ defense team “have been very concerned that an innocent man was wrongly convicted on very tenuous evidence. There were many aspects about this case that we feel raised due process concerns.”

He raised those concerns after Downs was convicted, but the trial judge rejected them.