Justice Samuel A. Alito Jr. calls it “perhaps the most important criminal procedure case that this court has heard in decades.” The US Supreme Court is deciding whether Maryland may collect DNA samples from suspects arrested for serious crimes.
The case focuses on Alonzo Jay King Jr., who was arrested for assault in 2009. As part of the booking procedure, Maryland took a DNA swab for comparison with genetic profiles in a crime databank. King’s DNA connected him to an unsolved rape for which he was tried, convicted, and sentenced.
But the Maryland Court of Appeals overturned his conviction and blocked the state’s law, saying it violated the Constitution’s protection against unreasonable searches and seizures. If a suspect’s home can’t be searched without a warrant, why is it legal to enter his or her DNA into a crime databank? The Supreme Court heard arguments about the case in February.
DNA, which has been described as the “fingerprinting of the 21st century,” has proven useful again and again across the criminal justice spectrum: In addition to solving crimes, it has helped many people prove their innocence and win release from prison. The National Registry of Exonerations, a joint project of Michigan Law and Northwestern Law, says that 1,090 wrongful convictions have been overturned since 1989, many of them through DNA evidence.
But DNA technology also raises legal questions that could not have been anticipated by the drafters of the US Constitution. In the early days of our country’s history, distinctions between legal and illegal searches were much easier to make. A man’s home was his castle, and strict rules for establishing probable cause had to be followed before police could conduct a search. But as time passed, new inventions and procedures including automobiles, fingerprinting, and canine searches have raised questions for the Supreme Court to answer.
According to the late William J. Stuntz, author of The Collapse of American Criminal Justice, the Bill of Rights compounded the confusion by emphasizing processes and procedures instead of rights and principles. As a result, wrongdoers often get off on technicalities, and innocent people sometimes languish in prison for years because a judge or prosecutor doesn’t care that important new evidence has appeared. Statistics from the National Registry of Exonerations show that before 2012, criminal justice participated in only about 30% of exonerations. In 2012 the participation percentage jumped to 54%, and there was a dramatic increase in exoneration cases, from a yearly average of around 20 to 63 in 2012—a signal, perhaps, that emphasis is shifting from procedures to broader principles of justice.
Of course some uses of DNA do not raise legal questions. California prosecutors are using DNA from deceased inmates to close cold cases. There are no legal barriers to prevent prosecutors from searching clinics, evidence rooms, and old court exhibits for saliva, semen, and blood and tissue samples from the dead. Last year blood from an autopsy showed that serial killer Juan Chavez was the likely killer of a man strangled in 1990: Chavez’s genetic profile matched DNA on a cigarette butt found at the crime scene.
California officials say that even though no prosecution is possible, the DNA matching project can bring closure and relief to victims and their families. “We owe it to these families—whether the person is dead or not—to provide the answers that they’re entitled to. That’s the primary goal,” said Anne Marie Schubert, a supervising deputy district attorney in Sacramento. Another benefit is that clearing cold cases allows detectives to use department resources more effectively.
In Orange County, the district attorney’s office has assigned four volunteer law clerks and an investigative assistant to search court records for records of samples from deceased offenders for testing. Genetic material might even show up on an envelope used to mail a letter from prison. “Everybody’s DNA is somewhere,” said Anne Marie Schubert. “We’re going to have more success, but it’s a matter of time and persistence.”
California’s program is beginning to spread to other states. For example, the Cook County Sheriff’s Department in Illinois is using a national DNA databank to determine whether deceased serial killer John Wayne Gacy committed other murders around the country.
What prosecutors really want to do, of course, is collect DNA from living suspects who might then be connected via a DNA databank to unsolved crimes. Twenty-nine states routinely take saliva swabs from anyone arrested on suspicion of a felony, and the federal government sometimes takes swabs as well. But does the “innocent until proven guilty” principle protect a suspect who hasn’t yet been convicted of a crime? And what about the blood and tissue samples stored in medical facilities where inmates have received treatments—are they available to prosecutors? And what if a suspect is found innocent of the original charge, but the database connects him to another crime? The Supreme Court will be handing down its decision in June.
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Jean Reynolds, Ph.D. is Professor Emeritus of English at Polk State College, where she taught report writing and communication skills in the criminal justice program. She is the author of seven books, including Police Talk (Pearson), co-written with the late Mary Mariani. Visit her website at www.YourPoliceWrite.com for free report writing resources. Go to www.Amazon.com for a free preview of her book The Criminal Justice Report Writing Guide for Officers. Dr. Reynolds is the police report writing expert for Law Enforcement Today.