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SCOTUS ruling emboldens lawmakers to expand DNA collection

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This time next year, Indiana may join the majority of states that collect DNA samples from people arrested on suspicion of committing felonies, rather than only from those convicted. Lawmakers who’ve been stymied are encouraged by a Supreme Court of the United States decision upholding the practice.

Senators this year buried Senate Bill 245 by a vote of 34-16. The bill would have expanded DNA collection to those arrested for certain violent felonies or burglary. One of the bill’s champions, though, said the margin of vote doesn’t tell the full story.

“It turns out on the final day for calling third reading for bills, that was the same day this issue was argued before the Supreme Court,” said Sen. Joseph Zakas, R-Granger, an author and outspoken proponent. Senators hesitated until the court spoke, he said.

“I think the chances of passage are greater because the court has issued a ruling on this, and I think there are some good answers to a number of the concerns raised on the other side,” Zakas said. “The bill will save lives.”

The high court on June 3 handed down a 5-4 decision in Maryland v. King, 133 S. Ct. 594 (2012), that affirmed Maryland’s practice of collecting DNA from people arrested for certain felonies. The genetic material taken via cheek swab is entered into the Combined DNA Index System (CODIS) database that can match samples to DNA profiles taken from crime scenes or from victims of unsolved violent crimes. In Alonzo King’s case, DNA collected after his arrest for menacing people with a shotgun connected him to a 6-year-old unsolved rape for which later he was convicted.

Conservative Justice Antonin Scalia authored a blistering dissent, even by his standards, joined by three of the court’s more liberal justices: Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor. Scalia wrote that the majority had abandoned the unreasonable search and seizure protections of the Fourth Amendment, and he was incredulous about the majority’s position that the DNA collection was for identification purposes rather than crime solving.

“The Court disguises the vast (and scary) scope of its holding by promising a limitation it cannot deliver. The Court repeatedly says that DNA testing, and entry into a national DNA registry, will not befall thee and me, dear reader, but only those arrested for ‘serious offense[s],’” Scalia wrote. “… I doubt the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.”

While civil libertarians worried about the portent of the decision, those who endorse expansion of DNA collection in criminal cases said the need to protect the public is paramount.

“Folks, I think, worry needlessly about it,” Indiana Prosecuting Attorneys Council Executive Director David H. Powell said. “I don’t want to criticize Justice Scalia, but I have a lot of confidence in the criminal justice system by and large being fair and truth-seeking.”

DNA collection can not only match suspects to unsolved crimes, but may also rule them out, Powell noted. “All we’re interested in is the truth and pinpointing those who commit crimes and doing it as accurately and effectively as possible.”
 

steele-brent2012-mug Steele

Senate Judiciary Committee Chairman Brent Steele, R-Bedford, said he backed SB 245 and similar bills, and he expects passage now that the court has spoken. He noted the majority in the King opinion wrote that even if King’s DNA had not been collected, a fingerprint match also connected him to the unsolved rape.

“I just don’t see the problem,” Steele said. “I just don’t see the alligator in the mud puddle.” Fingerprints have been collected by law enforcement since the 1930s without concerns about misuse or Fourth Amendment violations, he explained. “Do we lose control of fingerprints?”

Paul Misner, biology section commander for the Indiana State Police, said ISP has been neutral on legislation to expand the database, but the lab has taken steps to accommodate what would be a significant increase in analyzing samples. ISP, which administers the state’s DNA database, now collects about 1,500 samples monthly from convicted felons and has the capability to analyze up to twice as many. He said the lab’s cost of analyzing and storing DNA is about $20 per sample, funded by a court filing fee.

Misner sees a need to educate people on what happens after those cheek swabs arrive at the lab.

“I guess I can understand people’s concerns. All they know is, ‘Someone took my sample, and I don’t know what they’re going to do with it,’” he acknowledged. “I do understand the perspective of people on the street who think, ‘The government shouldn’t have my DNA, particularly if I haven’t committed a crime.’”

However, “The very high success rate of the CODIS program in general is good for people to know,” he said. In about 40 percent of cases where DNA profiles exist from crime scenes or victims, a match is generated against the offender database.


dave powell Powell

“There’s a very limited segment of DNA we’re actually testing for that has nothing to do with physical traits or medical predispositions” or other genetic markers, Misner said. This non-coding DNA, Misner said, “is all we’re interested in, and that’s what we put in CODIS.”

Zakas said 28 states and the federal government follow the practice affirmed in the King decision with good reason – the governmental duty of safeguarding the public. “As a general principal, we have the right to be safe in our homes and neighborhoods,” he said.


landis-larry-mug Landis

Indiana Public Defender Council Executive Director Larry Landis said the court’s decision removes constitutional impediments to expanding the state’s DNA collection and leaves the matter as a public policy and privacy question for lawmakers.

Landis said the Public Defender Council doesn’t oppose development of science that enhances the reliability of finding defendants guilty or not guilty.

But while the CODIS database may yield hits in 40 percent of cold cases as Misner noted, Landis said expanding DNA collection would come with a major complication because, likewise, about 40 percent of people charged with felonies are never convicted. A mechanism for expungement of DNA records would have to be workable, he said.

Misner said the ISP lab currently receives fewer than 10 requests for expungement a year. He said processing the additional expungement requests that would result from expanded DNA collection is probably the greatest challenge the lab would face.

Because DNA is different from fingerprints or other identifiers collected by law enforcement, more in line with a blood sample, the potential for misuse should not be dismissed, Landis said. He added that Scalia, in his dissent, also suggested the King ruling could someday open the door to government collection of DNA not just from criminal defendants, but from people seeking a driver’s license or an airline ticket, for instance.

“Once you start down this road, it is the proverbial slippery slope,” Landis said. “If that’s where people want to go, they’re on that road, whether they know it or not.”•

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  1. I like the concept. Seems like a good idea and really inexpensive to manage.

  2. I don't agree that this is an extreme case. There are more of these people than you realize - people that are vindictive and/or with psychological issues have clogged the system with baseless suits that are costly to the defendant and to taxpayers. Restricting repeat offenders from further abusing the system is not akin to restricting their freedon, but to protecting their victims, and the court system, from allowing them unfettered access. From the Supreme Court opinion "he has burdened the opposing party and the courts of this state at every level with massive, confusing, disorganized, defective, repetitive, and often meritless filings."

  3. So, if you cry wolf one too many times courts may "restrict" your ability to pursue legal action? Also, why is document production equated with wealth? Anyone can "produce probably tens of thousands of pages of filings" if they have a public library card. I understand this is an extreme case, but our Supreme Court really got this one wrong.

  4. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  5. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

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