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DNA sampling case develops

Maryland officials have set the stage for an appeal to the Supreme Court to revive their legal right to collect DNA samples from individuals who have been arrested, but not yet convicted of a crime — if the state’s highest court cannot be persuaded to reconsider its partial ban on that procedure.  The issue has divided lower federal and state courts, and the case of King v. Maryland would appear to pose the issue in a simple and direct way — a rape conviction would fall, and getting a guilty verdict at a new trial could be in considerable doubt.

The ruling last month by the Maryland Court of Appeals, the state’s supreme court, is here.  The state attorney general’s motion to reconsider, indicating plans to go on to the Supreme Court if necessary, can be read here.  State Attorney General Douglas F. Gansler asked the state court at least to put its ruling on hold until after it could be tested in the Supreme Court.

Maryland’s DNA sampling law was originally passed in 1994, but was extended in 2008 to require sampling of those arrested and not yet convicted.  The federal government and 25 of the 50 states have similar laws, and disputes over their constitutionality have arisen across the country.  The Supreme Court on March 19 refused to hear a case involving a challenge to a DNA sample taken from a Pennsylvania man (Mitchell v. United States, docket 11-7603), but the sample was not used in that case to identify the individual as the perpetrator of a different crime.

Among the constitutional issues that have arisen over such DNA sampling laws, these are some of the most significant:

** What level of privacy do arrested individuals have, compared to those actually found guilty of crimes?

** How intrusive is a DNA sample, both in terms of the physical procedure of swabbing inside the mouth, and in terms of the amount of private information gathered by such a swab?

** Do constitutional limits on it apply both to the original swabbing, and also to the later interpretation of the personal markers found?

** For constitutional purposes, is using the DNA result to tie an individual to other crimes simply another form of identification, or is it a form of investigation of another crime?  (In other words, can such a sample be used constitutionally only if it helps identify that arrested individual as the person the police want for that particular crime, or can it also be used validly to link that individual to other crimes, such as unsolved offenses (“cold cases”)?

** Is the constitutional equation different if a sampling law puts strict limits on what information from a sample may be used by prosecutors?  (In other words, is there no constitutional problem if the sample reveals only what are called “junk” factors that really do not tell much about an individual’s biological profile?)

** And, if such a sampling procedure is invalid in some particular factual situations, may it remain on the books for other situations? (In other words, should such a law be struck down as written — that is, facially — or only as applied to specific scenarios?)

Maryland’s highest court upheld the state’s DNA sampling law in 2004, but only as it applied to those already convicted of serious crimes (felonies).   But, in a 5-2 decision on April 24, the state tribunal found that the law could not be applied in the specific case of a Wicomico County man, Alonzo Jay King, Jr., and thus overturned his conviction for rape — a conviction that depended heavily upon a link to him provided by a DNA sample taken after his arrest earlier for a separate assault case.  (The state court turned down King’s plea to strike down the law as written — that is, his “facial” challenge to it; it said there might be instances where the sample could be validly used when an arrested person’s identity might be in question.)

Under the state court ruling, King can be prosecuted at a new trial, but Attorney General Gansler has told the state court, in his reconsideration motion, that the DNA sample that the ruling bars as evidence is “the strongest piece of evidence linking” King to a rape.   After his conviction for rape, King was sentenced to life in prison without parole.

King had been arrested in 2009 for an assault that was treated as a violent crime.  Because of that designation of his alleged offense, state law required that, upon his arrest, a DNA sample be taken by using a cotton swab inside his mouth to collect cellular material.  That was done when he was booked into the Wicomico County jail.  He also was identified by photograph and by his fingerprints.  He was later convicted of second-degree assault, and was given a four-year prison sentence, with three of those years suspended.

Later, scientific interpretation of that sample linked King to a rape that occurred in September 2003.   In that incident, which had remained a “cold case” for prosecutors, a 53-year-old woman was raped by an African-American man whom she could not otherwise identify.  The intruder held a gun to the woman’s head as he assaulted her.  Later, a semen sample taken from her body was found, though a DNA database, to match the DNA sample taken from King during the arrest procedure in 2009.   After his conviction, King challenged the use of the 2009 sample as evidence against him in the rape case.

In agreeing with his challenge, as the sampling law applied to him specifically, the state court majority ruled that arrested individuals have a higher level of privacy than those who have actually been convicted, that the sample in King’s case was not necessary to identify him in the assault case and thus was used only as a basis for investigating him in the earlier rape incident, that an arrested individual’s expectation of privacy in private biological information outweighed the state’s interest in gathering information to solve other crimes, and that DNA sampling is more intrusive than merely taking a suspect’s fingerprints so the long-standing legal permission to use fingerprint evidence did not control in the DNA context.

The state court majority said that its “analysis is influenced by the precept that the government must overcome a presumption that warrantless, suspicionless searches are per se unreasonable….The state bears the burden of overcoming the arrestee’s presumption of innocence and his expectation to be free from biological searches….”   It found that the expectation of privacy was greater for an arrestee than for a convicted person, and that the state had not overcome that privacy claim by its interest in investigating other crimes.

The two dissenting judges argued that the majority had overstated the privacy interests of those arrested and detained in police stations.  And, they concluded, the government’s interest in solving crimes far outweighed any such privacy interests.  A swab of the mouth to pick up cells, the dissenters said, is “perhaps the least intrusive of all seizures” by police.

The dissenters also accused the majority of exaggerating the amount of biological information that could be exposed by using a DNA sample to get a “hit” to help solve another crime.   The state law at issue, the dissenting opinion said, puts strict limits on the use of DNA information, and the kind that can be used in criminal cases is only the kind of “junk” data that does not disclose “intimate genetic information.”  What a DNA sample shows, the dissent said, is virtually identical to the ridges of a fingerprint that can only be used to identify a specific person, and nothing more.

The state attorney general, in asking the Court of Appeals to reconsider its ruling, or at least to stay it pending an appeal to the Supreme Court, said that the decision could affect state prosecutors’ use of evidence that could help solve “190 unsolved cases.”  Moreover, that motion contended, DNA sampling is used not only to solve unsolved crimes, but also helps to exonerate those who have been convicted in error and helps to eliminate other suspects in an investigation.


Recommended Citation: Lyle Denniston, DNA sampling case develops, SCOTUSblog (May. 4, 2012, 12:43 PM),