FBI used prohibited genealogy site in Boston rape investigation, defense lawyer claims

A lawyer for a New Jersey man charged with rapes that occurred more than a decade ago in Boston accused prosecutors on Thursday of conspiring with federal authorities to keep information about a key DNA search out of the defense’s hands.

Attorney Rosemary Scapicchio made the claim during an at-times contentious discovery hearing in Suffolk Superior Court Thursday morning in the case of Matthew Nilo, a former lawyer accused of sexually assaulting women in Charlestown and the North End in the 2000s.

Investigators linked Nilo to the assaults through a sample of his DNA taken by the FBI from a drinking glass and utensils he used at a corporate event in New York City.

But how investigators came to focus on Nilo is not clear, and a major source of contention in the case. A DNA sample from a rape kit of one of the victims was uploaded to MyHeritage — an online genealogy platform — and was then somehow linked to Nilo. The DNA was also run through two other platforms, GEDmatchPro and FamilyTreeDNA, by a forensic laboratory.

Federal policy bars the use of MyHeritage for investigative purposes, Scapicchio said.

As a result, Scapicchio intends to file motions to suppress both the search of the MyHeritage database and the DNA seized from the drinking glass. She contends that the seizure of the drinking glass constituted an unlawful, warrantless search.

Following the hearing, Scapicchio said she can’t file those motions until prosecutors complete discovery, the process of turning over evidence in a criminal proceeding.

DNA evidence

Prosecutors admitted during the hearing that the FBI did not memorialize or document the information it obtained through MyHeritage. Scapicchio claims that if the information was in fact destroyed, there has to be some record of it, which has yet to be turned over by prosecutors.

It was the state that asked the FBI to get involved in the case, not the other way around, she noted.

“They knew that the FBI could do the search and do it in a way that it would be withheld from us,” she said. “There had to have been some inquiry, whether it’s by the Commonwealth or the federal government, the FBI. Somebody had to say, how did this happen?”

“Somebody had to know that it was getting destroyed at some point,” Scapicchio continued. “The prosecution has an obligation to do their job, and their job is, go find out how this stuff got deleted.”

For her part, the prosecutor, Assistant Suffolk District Attorney Lynn Feigenbaum, said she had requested information from the feds multiple times.

Feigenbaum seemed frustrated by Scapicchio throughout the hearing, essentially telling Judge Christopher Belezos she had taken the defense lawyer’s requests and sent them to the relevant parties. What she received was turned over, she said.

“I think the Commonwealth, Your Honor, quite frankly, could take the position that most of this is irrelevant, because we still get to Mr. Nilo, but I’m not taking that position,” she said.

Belezos encouraged prosecutors to work with Scapicchio to set up a meeting between a defense DNA expert and technicians working for the government.

Other discovery issues

The remaining discovery disputes are laid out in the sealed motions, which are based on the emails turned over by prosecutors to Scapicchio.

The defense lawyer has asked for information about several possible other suspects, including a person with a tattoo described by one of the victims in the assaults Nilo is charged with. She also pressed for more information about a potential suspect who was deemed the “C-town rapist.”

Scapicchio is also requesting more information about a meeting between prosecutors on the Nilo case and other assistant district attorneys, where she claims there was discussion about whether to indict Nilo. Prosecutors claim the information constitutes protected work product, but Scapicchio argued if it could benefit Nilo it must be turned over.

Belezos asked prosecutors to submit it to him for breakdown, so he could determine whether it needed to be turned over.

The lawyers also argued about a photo array that police put together ahead of Nilo’s arrest, but never used, and a photo array shown to victims in 2007.

Belezos sought to mediate the issues, often asking Feigenbaum to inquire further if more information existed on specific issues raised by Scapicchio.

Nilo’s case will be back in court on Sept. 18 for a status hearing on discovery. No trial date has been set and Nilo, who is free on bail, has pleaded not guilty.