Thursday, February 28, 2013

Supreme Court Justices Grapple With Critical DNA Testing Case


Adam Liptak at the New York Times recently discussed a crucial case currently before the U.S. Supreme Court and how the impact of the decision could be felt across police stations and in court rooms across the country for years to come. The justices appeared to be aware of just how important the case was, with Justice Alito saying that he though it was possibly “the most important criminal procedure case that this court has heard in decades.”

The case deals with whether police are allowed to take DNA samples from people who have been arrested. The case began after a suspect in Maryland, Alonzo Jay King, Jr., was arrested on assault charges back in 2009. A sample of King’s DNA was taken by swabbing his cheek at the time of his arrest, but prior to any conviction, and it later matched evidence from a rape that took place several years prior. King was eventually convicted for the rape and appealed the case to the Maryland Court of Appeals which agreed that taking DNA from those arrested but not yet convicted violates the Fourth Amendment.

While it may be true the DNA collection process is valuable to police departments and has helped nabbed criminals, that does not mean it should be permitted, a point aptly made by Antonin Scalia. Justice Scalia, in responding to a claim that the DNA evidence helped obtain 42 convictions in Maryland, said it was great news and he thought if the police conducted a bunch of other unreasonable searches and seizures they might get even more. He made clear that he thought the effectiveness of the program proved nothing. In an odd alliance, Justice Ginsburg voiced her agreement that the DNA testing practice might be problematic under the Fourth Amendment which requires a warrant before police can conduct a search.

The justices never even discussed the issue of collecting DNA from suspects who had already been convicted of crimes, instead the issue was solely over what the Fourth Amendment might say regarding those suspects who have only been arrested. Justice Roberts said that while Maryland’s law limits the DNA samples to those arrested for serious crimes, there was nothing preventing the law from siding down a slippery slope, perhaps authorizing such DNA searches for everyone pulled over for speeding. Playing a good devil’s advocate, Roberts also said he wondered about the expectation of privacy in DNA when it can be so easily obtained. For instance, Roberts said that simply taking a sip of water leaves behind a wealth of private information.

Alito said that the technology at issue is potentially hugely important and could be used to solve a multitude of murders, rapes and other heinous crimes. He appeared to see the value of it, asking, “Why isn’t this the fingerprinting of the 21st century?” This issue seemed to be the focus of oral arguments, with King’s attorneys saying that DNA and fingerprints differ in that fingerprints are used almost solely to identify people while DNA is used to solve cold cases. We’ll have to wait a while to hear what the justices think.


Earlier:

Wednesday, February 27, 2013

Supreme Court Declines To Hear Case Regarding Legality of Non-Unanimous Jury Verdicts


The Supreme Court decided earlier this week that it would not hear a case about whether the Sixth Amendment right to a jury trial includes a condition that the juries reach their verdicts unanimously.

The issue arose because two states, Louisiana and Oregon, allow criminal convictions with less-than-unanimous verdicts. Defendants in both states can be found guilty of a crime if jurors split 11-1 or 10-2. Every other state and the federal government require that jurors reach a unanimous verdict.

Lawyers in Louisiana have long argued that the U.S. Supreme Court should hear the case given that they claim the rule is a product of Jim Crow-era laws that were put in place to marginalize the role of African-Americans in the legal system. Advocates for change insist that the racial impact of the law is still being seen today. In Jefferson Parish, prospective black jurors are challenged at more than three times the rate of prospective white jurors. Given this imbalance, and the state’s non-unanimous system, a full 80% of guilty verdicts in Jefferson parish are able to be decided without any black votes in favor of conviction.

Those attorneys arguing that the Court agree to hear the case further claimed that the less-than-unanimous system reduces jury reliability. They pointed out that Jefferson Parish in Louisiana, where the case at issue originated, has the fourth highest rate of wrongful jury convictions in the country. Adjacent Orleans Parish has the highest rate.

The case at issue involves Corey Miller, a rapper from New Orleans who was convicted of second-degree murder back in 2002 after a nightclub shooting killed a 16-year-old. The crime scene was chaotic and testimony during trial was conflicted. Miller was tried and convicted with a vote of 10-2. As a result of his conviction, he was sentenced to life in prison without the chance for parole.

The issue of non-unanimous jury verdicts was considered by the Supreme Court once before, in 1972. In that case, the court split 4-4 until Justice Powell broke the tie, coming down in support of non-unanimous verdicts. At the time, more than 40 years ago, Louisiana and Oregon were the only states with such systems. Today, the two states remain alone. This legal isolation is what has prompted many to insist the systems are backwards and in need of modernization.


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Monday, February 25, 2013

Supreme Court Decides Case Testing Limits Of Detention During Searches

A recent ruling released by the U.S. Supreme Court last week, Bailey v. United Statesdealt with the authority of police officers to detain those who leave a residence that officers have come to search.

In an earlier case, Michigan v. Summers, decided in the early 1980s, the Supreme Court held that when police are executing a search warrant the police are entitled to temporarily hold people they discover on the premises even if they do not have a reason to suspect them of engaging in any wrongdoing.

This issue was tested in 2005 when police in Wyandanch, NY arrested a man, Chunon Bailey, even though he had already left the premises before any police arrived to search the building. Furthermore, Mr. Bailey was not stopped on the property in question, but was instead found a mile away from the house. Police officers who stopped Bailey found evidence that linked him to drugs and a weapon found in the house they were sent to search.

On Tuesday, the Court voted 6-3 to refuse to extend the principle laid out in 1981 to the facts of the present case. The justices agreed that the distance, in both time and geography, were too great to allow police the same authority found in the previously decided case. Justice Kennedy wrote that the practical necessities for why an officer might need to detain someone on the premises during a search disappear when that person is a great distance from the scene of the search.

Kennedy elaborated on the problem with allowing such a detention away from the premises. He said that the extraordinary intrusion on personal liberty would be even greater in such a circumstance given that the person would be stopped in public and then be forced to go back to the premises of the search, giving an outward appearance that the subject had been arrested.

The case resulted in a very odd voting alliance among the justices. Besides Kennedy, Roberts, and Scalia joined with Justices Ginsburg, Sotomayor and Kagan to form the majority. Thomas and Alito, two staunch conservatives, joined Justice Breyer in dissenting.

To read the full opinion, click here.



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Friday, February 22, 2013

Supreme Court Addresses Whether Drug Dog Sniffs Are Up To Snuff


The U.S. Supreme Court ruled on Tuesday in Florida v. Harris that prosecutors are not required to present evidence detailing the stellar records of police dogs before their results can be used in court. The ruling, written by Justice Elena Kagan, said that courts should subject sniff tests by drug dogs to the same scrutiny given to other issues that police use to demonstrate probable cause prior to a search, and no more.

Kagan, writing for a unanimous Court, said that the question should be whether all the facts surrounding the dog’s sniff alert would lead a reasonably prudent person to believe that a search would turn up evidence of a crime.

The ruling by the Supreme Court overturns an earlier decision by the Florida Supreme Court about a drug dog named Aldo. Aldo had been trained by police in Liberty County, FL to sniff for marijuana, cocaine, heroin, ecstasy and methamphetamine. During a routine traffic stop in 2006, Aldo gave a signal to his handler that he detected something in the truck.

A search was performed by officers and 200 loose pseudoephedrine pills, 8,000 matches, a bottle of hydrochloric acid, antifreeze and iodine were discovered. In combination these ingredients make methamphetamine, but individually they are not things Aldo was trained to detect. The man was arrested and charged and later appealed the issue asking that a judge throw out the evidence obtained during the search given that the defense claimed Aldo’s search was not a sufficient basis for probable cause to search the vehicle.

The Florida Supreme Court agreed with the defendant, saying that the police lacked probable cause to search the truck. The Florida Court claimed that prosecutors should have to present evidence of training, certification records, field performance records and other objective evidence concerning a drug dog’s abilities and experience.

The Supreme Court disagreed, voting unanimously to reverse the Florida high court. The Court said that such a lengthy laundry list of documents are not needed to support the reliability of a drug sniffing dog.

The Court, in an odd coincidence, is preparing to release a second opinion concerning drug-sniffing dogs. The second case involves officers who brought a police dog up to a private residence. The issue for the justices to decide is whether judges may issue search warrants for private residences when a drug-sniffing dog outside the home reacts as if it smells drugs inside.

To read the full opinion, click here.


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Wednesday, February 20, 2013

Sixth Circuit Hears TN Case About 13-Year-Old Child Labeled Child Abuser by DCS



The Sixth Circuit Court of Appeals recently decided a case out of Tennessee involving a 13-year-old labeled a child abuser DCS but this label is vehemently contested by his parents.

The case, Wright v. O'Day, concerning a young boy known as D.W., was brought by the child’s mother who sued the Governor of Tennessee and the Commissioner of the Tennessee Department of Children’s Services claiming that they violated the boy’s due process rights by including him on the state’s child abuse registry without first offering him an administrative hearing to challenge the listing.

The issue arose after D.W. was accused by another child, L.M., of touching his penis and sticking his finger in L.M.’s butt. D.W. denied the allegations during an interview with Children’s Services, but was later told that he would be indicated as a perpetrator of child abuse in the state’s official registry.
D.W. and his mother asked for a formal review of their case, but were never told what evidence had been collected against the boy. He was also denied an administrative hearing because the Children’s Services office claimed the designation would not affect his employment. D.W. pointed out that the designation would not disappear when he turned 18, but would instead follow him for life.

When the case was brought before a lower court, the Commissioner of the Tennessee Department of Children’s Services filed a motion to dismiss, arguing that any claim based on the child abuser designation’s effect on D.W.’s employment did not present a justiciable case or controversy because D.W.’s claim of injury was speculative.

The district court agreed with the Commissioner and decided to dismiss the case, saying that the harm caused by the designation was in the future and was thus not justiciable.

The Sixth Circuit disagreed, holding that the designation as a child abuser is essentially permanent and that this amounts to a concrete injury. Given this injury, the child should not have to wait until he is denied an employment opportunity to bring the challenge. The Sixth Circuit made clear that because the classification as a child abuser leads to actual injury, D.W. has standing to challenge the classification.

To read the full opinion, click here.
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Tuesday, February 19, 2013

Sixth Circuit Discusses What Makes A Jail Escape A “Crime of Violence”


The case of  U.S. v. Benji Antonio Stout, involved one man’s escape from prison and how that escape should be classified with regard to a subsequent criminal prosecution. The man, Benji Antonio Stout, was charged with knowingly possessing body armor after having previously been convicted of a crime of violence. The previous crime of violence conviction was Stout’s earlier charge of second-degree escape, a conviction he earned from escaping a county jail. During the escape, Stout climbed a wall in the recreation area of the jail and then crawled through a hole in the top of the fence.

Stout and his attorneys argued that the prior conviction did not involve a crime of violence and asked the lower court for a hearing on the matter. The lower court concluded that his escape was a crime of violence given that his escape was purposeful and aggressive and that it created a substantial risk that he would need to use physical force against either guards or members of the public who encountered him during the escape. The fact that he never used such physical force was immaterial.

Stout then appealed the case, claiming essentially the same thing. The Sixth Circuit agreed with the decision of the lower court, holding that the escape amounted to a crime of violence. In its ruling, the Court walked through Kentucky’s statutes dealing with the subject of second-degree escape and determined that the type of escape at issue in this case involved “an escape by leaving custody in a secured setting.” This variety of escape involves a purposeful act and requires stealth and presents the possibility of both detection and ensuing confrontation.

The Sixth Circuit said that 18 U.S.C. Section 16(b) makes clear that a crime of violence includes any that involves a substantial risk that physical force may be used in the course of committing the offense. Under this definition, the Court says it is clear that the Stout’s escape meets the standard and should be properly deemed a crime of violence. As a result, his conviction and sentence were upheld.

In an interesting dissent, Judge Bernice Donald argued that unlike the famous prison escapes mentioned in The Count of Monte Cristo or The Shawshank Redemption, which Donald agrees would qualify as crimes of violence, Stout’s escape was achieved by merely climbing over a wall and crawling through a hole that he was not responsible for creating. Given that Stout never harmed anyone or any property in his escape, Judge Donald believes it is clear that his escape should not be labeled a crime of violence.

To read the full opinion, click here.

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Friday, February 15, 2013

Sixth Circuit Hears Criminal Trade Secrets Case Concerning Giant Tires




You might not think a case about giant tires would have much to do with criminal law, but a recent case before the Sixth Circuit Court of Appeals concerning criminal trade secrets involved just that. The case, U.S. v. Howley, involves a trade secrets prosecution under 18 U.S.C. Section 1832(a). The two men at the center of the case, Sean Edward Howley and Clark Alan Roberts, were convicted of stealing trade secrets and engaging in wire fraud.

The case involved engineers who worked for Wyko, an American company that provides parts to tire manufacturers like Goodyear. Apparently the story began when a government owned Chinese company wanted to get in on the giant tire building business. Tires for huge earthmovers and giant bulldozers are incredibly expensive, complicated items that are only produced by a handful of companies around the world.

While servicing some of the Goodyear machines, Howley and Roberts (who had already signed confidentiality agreements with Goodyear) snuck some pictures. This information was combined with sketches Wyko already obtained from a former Goodyear employee of the machines used to make the tires. This was enough to allow Wyko to start working on a machine of their own for the Chinese company.

In a curious twist, Howley and Roberts claimed that they never stole trade secrets, despite clear evidence of their photographs. The two argued that a trade secret was only a trade secret when the person who owns it has taken measures to secure the information and if the supposedly secret information has value because it is not widely known. The Sixth Circuit flatly rejected the defendants’ arguments, saying that the information was securely kept, pointing out that both had been required to sign a confidentiality agreement and to specifically agree not to take any pictures during their visit to the plant. Moreover, the secret was economically valuable given the lengths Wyko and the Chinese company went to obtain it.

More bad news for the defendants came when the government cross-appealed their sentence, originally a four-month period of home confinement. According to prosecutors, the issue was that the sentence did not match the value of the criminal act. There were three estimates of damage provided by the government: the contract price between the Chinese firm and Wyko - $305,000; the price of Goodyear to make the equipment - $520,000; and finally, Goodyear’s annual sales of the giant tires - $20 million.

The lower court never fully grappled with the estimates given by prosecutors, saying they had failed to prove any economic loss, and decided to simply give Howley and Roberts the minimum sentence allowed. The Sixth Circuit disagreed with the lower court, saying that while it may be difficult to fix the value of a trade secret, the lower court should have at least tried. Even the lowest estimate provided by the prosecution would have resulted in a 37 to 46 month prison sentence. The Court then decided to remand the case for resentencing.

To read the full opinion, click here.

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Thursday, February 14, 2013

Sixth Circuit Says Information Must Be Exculpatory For Brady Violation To Have Occurred




U.S. v. Rodrigo Macias-Farias

Late last week the Sixth Circuit Court of Appeals released a ruling in the Rodrigo Macias-Farias case. The incident involved Macias-Farias who was convicted of drug trafficking and sentenced to 320 months in prison. He appealed his conviction, claiming that the district court made a mistake denying his motion for a mistrial and that his sentence was unfairly enhanced due to an obstruction of justice charge. Though the Sixth Circuit disagreed with Macias-Farias about the mistrial, the judges did agree that due to a procedural error his case should be remanded for resentencing.

The complicated affair began when DEA agents spotted a truck carrying 1,600 pounds of marijuana. The driver of the truck told the agents that he was told to take the truck to an undisclosed location near Louisville, KY and, fearing his own arrest, agreed to cooperate with the DEA agents. While the DEA supervised the transaction, the man drove his truck into a parking lot outside Louisville where a van registered to Macias-Farias pulled up and eventually drove way. The agents claim to have maintained a constant visual surveillance of the truck all night, yet when the truck was finally searched the next day they discovered that the entire cargo of 1,600 pounds of pot had miraculously gone missing.

DEA agents next applied pressure on one of Macias-Farias’ associates, Sean Lacefield. Lacefield agreed to cooperate and set up a drug buy with Macias-Farias. Adding further humiliation to the DEA, agents got lost on the way to the drug deal and missed the transaction. Lacefield eventually tipped off the DEA to yet another drug shipment which they were able to catch only because the truck carrying the 3,700 pounds of marijuana got stuck in a ditch.

At trial, a DEA agent on cross-examination revealed a new bit of information. Evidently a statement from another party, a woman named Amber Babor, helped lead the DEA to suspect Macias-Farias and played a part in their previous attempt to set up a drug buy in Louisville with Lacefield. The problem is that her statement was never disclosed to the defense counsel, something that defense argued was a Brady violation and which denied Macias-Farias his right to confrontation given that Babor was not present in court. The defense then moved for a mistrial which was denied by the lower court.

The Sixth Circuit concluded that the lower court’s denial of the motion for mistrial was appropriate given that for a Brady claim to prevail, a defendant must show that the evidence that was withheld was favorable to the accused, either because it was exculpatory or because it was impeaching. Macias-Farias failed to show that the evidence was favorable to him. If anything, the Sixth Circuit says, the evidence was inculpatory rather than exculpatory.

To read the full opinion, click here.

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Saturday, February 9, 2013

Haslam Appoints Frierson to Tennessee Court of Appeals




Tennessee Gov. Bill Haslam today appointed Thomas R. “Skip” Frierson, II as a judge for the Tennessee Court of Appeals, Eastern Section.

Frierson replaces the Hon. Judge Herschel P. Franks, who retired at the end of 2012.

“Skip Frierson has spent the last 23 years serving in public office in East Tennessee, and he brings a wealth of experience to the bench,” Haslam said. “We are fortunate to have someone in this role with his qualifications and expertise.”

Frierson has served as chancellor in the Third Judicial District, which is comprised of Hamblen, Greene, Hawkins and Hancock counties, since 1996. In 1990, he was elected as Hamblen County General Sessions Court judge, serving in that capacity as judge of the Domestic Relations Court, Probate Court and as municipal judge for the City of Morristown.

He is a past president of the Tennessee Judicial Conference and serves as chairperson of the conference’s Tennessee Judicial Family Institute. Frierson was elected a fellow of the Tennessee Bar Foundation in 2007 and served as president of the Tennessee Trial Judges Association from 2007-2009. He was honored as “Trial Judge of the Year” by the American Board of Trial Advocates, Tennessee Chapter in 2000.

“I am deeply honored by the trust and confidence which Gov. Haslam has placed in me in making this appointment,” Frierson said. “I’m grateful for the opportunity to serve the state on the Court of Appeals, and I will give my full effort and commitment to performing the duties of judicial office diligently and impartially while promoting trust and confidence in the Tennessee judiciary.”

Frierson, 54, attended Walters State Community College and graduated Phi Beta Kappa from the University of Tennessee, Knoxville in 1980, earning his J.D. from the University Of Tennessee College of Law in 1983.

He and his wife, Jane, have three children, Reagan Lea, Parker and Garrett, and they are members of the First United Methodist Church of Morristown.

Amish Sentencing Complete


Trip Gabriel reports in today's NYT
Excerpt:
"The leader of a dissident Amish sect was sentenced on Friday to 15 years in prison for a series of bizarre beard- and hair-cutting attacks on other Ohio Amish that drew national attention.

Samuel Mullet Sr., 67, the leader, was sentenced in Federal District Court in Cleveland for coordinating assaults that prosecutors argued were motivated by religious intolerance. Fifteen of his followers, including six women, were given lesser sentences, ranging from one year and one day to seven years.
The breakaway Amish were convicted last year of multiple counts of conspiracy and hate crimes, which carry harsher punishment than simple assault.

Prosecutors had asked for a life sentence for Mr. Mullet. Defense lawyers claimed the government was blowing out of proportion personal vendettas that Mr. Mullet harbored against former followers and other critics, and thus did not deserve a long sentence.

But in passing sentence Judge Dan Aaron Polster told Mr. Mullet and his co-defendants that they were being punished for depriving victims of a constitutional right, religious freedom, whose fruits they enjoyed themselves as Amish through exemptions from jury service and other laws.

“Each of you has received the benefits of that First Amendment,” Judge Polster said."

Thursday, February 7, 2013

Sentencing Friday For Amish Beard Cutting Case Then To Sixth Circuit


Friday a federal judge in Ohio will sentence an Amish sect leader and his followers for cutting the hair and beards of other fellow Amish.  Despite the lack of finality at the trial court, attorneys have already said the case will be appealed to the Sixth Circuit Court of Appeals. This criminal case involves a federal hate crime law and the extent of power Congress has to regulate interstate commerce. Lawyers for the Amish sect leader Samuel Mullet Sr. challenge the constitutionality of part of the Hate Crimes Prevention Act that was used to charge nearly a dozen of Mullet’s followers after a series of forced beard cuttings that took place in 2011 in rural Ohio.

Mullet, as well as many of his followers, pleaded not guilty to charges involving attacks on fellow Amish men and women who allegedly disagreed with Mullet. The group was ultimately found guilty of federal hate crimes and conspiracy charges.  They are to be sentenced Friday in U.S. District Court. The government has asked for a sentence of life imprisonment for Mullet in court documents filed this week.

Prosecutors argued that the defendants targeted their victims because of the spiritual importance of their hair and beards. In the Amish faith, men growing their beards and women growing their hair has a special significance. Amish men let their beards grow once they are married, believing the Bible views cutting the hair as degrading or humiliating.

The defendants have already announced that they are appealing their convictions to the Sixth Circuit Court of Appeals regardless of Friday's sentencing, arguing that the Court should overturn their convictions. Attorneys for the Amish defendants claim the federal hate crime law that the charges were based on was passed by Congress with only a weak link to interstate commerce. This link allowed federal prosecutors to pursue cases, like this one, that would ordinarily be left to local authorities. The defense will cite how prosecutors used the fact that the attackers hired drivers to travel to various locations to cut the men’s beard as a tie to interstate commerce. Also, prosecutors relied on the fact that the scissors used to cut the beards were originally manufactured in New York.

The defendants have made clear that they will argue that the Hate Crimes Prevention Act exceeds Congress’s power under the Commerce Clause because the activity regulated does not have a substantial effect on interstate commerce. This case concerning forced beard cutting hardly will present the Sixth Circuit with a chance to grapple with the scope of Congress’ power under the commerce clause.

Wednesday, February 6, 2013

Sixth Circuit Says For Sentencing Purposes “Relevant Conduct” Must Be Criminal Conduct


The Sixth Circuit issued a ruling recently in U.S. v. Ernest CatchingsThe Court held that for an act to be viewed as “relevant conduct” for calculating federal sentencing guidelines, the act must have been an offense that could have resulted in incarceration for the defendant.

The case came about after Ernest Catchings was arrested and charged with using his former clients’ personal information to obtain credit cards in their names. Catchings pleaded guilty to identity theft and it then became necessary to calculate the total amount of loss Catchings’ actions resulted in. The district court, while calculating the figure, included in its total money lost as the result of credit cards that were in the name of a company Catchings started with a friend. These losses worked to push Catchings into a higher loss bracket. Catchings claims that these cards were not obtained by fraudulent means and therefore the losses should never have been included in his guidelines range.

The matter of the business cards was a complicated one given that Catchings’ former business partner admitted they had opened the credit account together, for the business. However, he said the cards were not to be used for personal expenses. The prosecutor revealed that money had been charged to the cards, but never clearly showed that the charges were personal and not business related. Though the charges may have been unfortunate, there was no proof that they were illegal.

The Sixth Circuit ultimately agreed with Catchings. The Court said that in order for conduct to be relevant for loss calculation, it must also be criminal conduct. The Court felt that Catchings likely took advantage of his former friend and business partner, but that it is not clear based on the evidence presented during sentencing that his conduct was criminal.

Catchings also appealed on a second issue, claiming that his guilty plea was not entered into knowingly or voluntarily and that the lower court made a mistake when it denied his motion to withdraw his guilty plea. The Sixth Circuit disagreed with Catchings in this case. The Court held that following an analysis of the seven factors judges must consider when hearing a motion to withdraw a guilty plea, laid out in U.S. v. Bashara, Catching’s motion was properly denied. The only possible claim Catchings had was one of ineffective assistance of counsel, however, he destroyed that as a basis after it was revealed he reinstated his counsel after first making his claim of incompetence.

The different outcomes on the two appealed issues means that the conviction was affirmed as was the lower court’s denial of his motion to withdraw his guilty plea. However, Catchings’ sentence was vacated and remanded for resentencing in accordance with a new loss calculation.

To read the full opinion, click
here

Tuesday, February 5, 2013

Supreme Court To Hear DNA Collection Challenge




Later this month the U.S. Supreme Court will hear oral arguments in a case involving a challenge by privacy rights advocates to the practice of taking DNA from people who have been arrested, but not yet convicted of a crime. The case is an important one, as many legal experts believe the decision will either end the practice or make it the new national norm.

In 2003, Virginia became the first state to pass such a law, requiring that anyone arrested for a serious crime have a DNA sample taken by a mouth swab. The law was passed in an attempt for law enforcement officials to quickly identify possible violent criminals and obtain DNA to help tie them to other crimes.

Since Virginia made the first move a decade ago, 27 other states and the federal government now collect DNA samples from some or all those who are arrested but not yet convicted of serious crimes. Beyond taking fingerprints, most jail bookings now involve taking an oral DNA swab. The practice is set to become even more widespread given that President Obama signed the Katie Sepich Enhanced DNA Collection Act just last month. The new law will help pay the initial costs associated with starting a DNA collection program for other states.

Some states don’t stop at swabbing those arrested for violent crimes. California, for instance, takes DNA samples from those arrested for nonviolent matters, including drug crimes, credit card fraud and burglary. They say taking DNA samples from a wider pool of arrestees has led to the capture and conviction of rapists and murderers.

The issue before the Supreme Court is not how effective the matter is from a law enforcement perspective, but whether such DNA collection practices are constitutional given that the person has not yet been convicted of having committed any crime. It is more of a question in cases where DNA evidence has nothing to do with the crime, such as in drug cases or property crimes.

The case before the Supreme Court is Maryland v. King. The issue presented is whether requiring DNA samples from someone not yet convicted amounts to an unreasonable search under the Fourth Amendment. Back in 2009, Alonzo King was arrested for waiving a shotgun in public. This was a felony in Maryland and resulted in a DNA test. King later pled guilty to a reduced charge, something that would not have required a DNA sample be taken. However, it was too late, as the DNA sample returned a match for a case several years before that identified him as the man who broke into a house a raped a woman. King was ultimately convicted and sentenced to life behind bars.

The Maryland Supreme Court later threw out his conviction and said that police should not be allowed to take a DNA sample without a search warrant and a reasonable belief that the suspect had committed another crime justifying such a DNA sample. The Court reasoned that DNA samples contain a massive amount of incredibly personal information, vastly more than is contained in a fingerprint, and thus deserve protection. Here is the Maryland full opinion.

Several important cases are currently on hold as judges across the country wait to hear from the Supreme Court. A significant DNA case is pending before the California Supreme Court as well as the 9th Circuit Court of Appeals, both of which have said they will wait to hear how the Supreme Court decides the matter before issuing their opinions.

Read: “Supreme Court to hear fight over taking DNA from arrested people,” by David Savage, published at LATimes.com.
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