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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 have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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