The case, Maryland v. King, was about whether the authorities may take DNA samples from people arrested in connection with serious crimes. Justice Anthony M. Kennedy, writing for [...]]]> Authors usually like it when the Supreme Court cites their work. But a reference to a book in an opinion last week is drawing mixed reviews.

The case, Maryland v. King, was about whether the authorities may take DNA samples from people arrested in connection with serious crimes. Justice Anthony M. Kennedy, writing for the five-justice majority, drew on a 2000 book by the founders of the Innocence Project and a newspaper columnist to explain why this was a good idea.

“In the interests of justice, the identification of an arrestee as the perpetrator of some heinous crime may have the salutary effect of freeing a person wrongfully imprisoned for the same offense,” Justice Kennedy wrote. Then he quoted from the book, “Actual Innocence.”

I asked Peter J. Neufeld, one of its authors, how he felt about the honor.

“Not great,” he said.

Part of the problem was what he called an irony.

In 2009, Justice Kennedy joined the majority opinion in a 5-to-4 decision that said prisoners had no constitutional right to DNA testing that might prove their innocence. Mr. Neufeld, who founded the Innocence Project with Barry Scheck, represented the prisoner on the losing end of that case, District Attorney’s Office v. Osborne.

But last week, Mr. Neufeld said, Justice Kennedy concluded that “it’s O.K. for the state to take DNA, without a warrant, from mere arrestees, who may ultimately have their charges dismissed.”

The combination of the two decisions baffled Mr. Neufeld. “That is quite a worldview,” he said of a jurisprudence that allows nonconsensual testing of people presumed innocent but denies voluntary testing to people who insist that they really are innocent.

Nor was Justice Kennedy’s brief quotation from “Actual Innocence” especially punctilious. Here is how the justice rendered it, including his brackets and ellipses: “[P]rompt [DNA] testing … would speed up apprehension of criminals before they commit additional crimes, and prevent the grotesque detention of … innocent people.”

Those first three dots covered a lot of ground. They took the place of more than six sentences and suggested a different point than the one the authors were making. The original passage concerned evidence collected at crime scenes, not from people who might be connected to it.

“What we were saying had nothing to do with post-arrest testing of suspects,” said Jim Dwyer, a co-author of the book who is now a columnist for The New York Times. “We were arguing that all evidence should be tested, whether or not a suspect had been charged.”

Mr. Neufeld agreed. “The ‘prompt testing’ is referring to something completely different than the latter phrase,” he said. “Barry, Jim and I never endorsed arrestee databases.”

The omission of two words with the second set of dots is easier to understand. The authors had written that testing could prevent “the grotesque detention of thousands of innocent people.” Justice Kennedy apparently did not want to endorse the possibility that the criminal justice system had such widespread shortcomings. (The Innocence Project, which is affiliated with the Benjamin N. Cardozo School of Law in New York, says that more than 300 prisoners have been exonerated using DNA.)

In dissent, Justice Antonin Scalia criticized Justice Kennedy’s assertion that gathering DNA after arrests would help free the innocent.

“By the way, this procedure has nothing to do with exonerating the wrongfully convicted, as the court soothingly promises,” Justice Scalia wrote in a footnote, referring to the collection of DNA from people under arrest.

The F.B.I.’s database “includes DNA from unsolved crimes,” he said. “I know of no indication (and the court cites none) that it also includes DNA from all — or even any — crimes whose perpetrators have already been convicted.”

That is not quite right, Mr. Scheck said. “Scalia’s footnote,” he said, “goes too far.”

He said there had been times when prisoners had been exonerated through the testing of DNA in closed cases.

All 50 states allow DNA to be collected from people convicted of felonies, and there is no question that those samples have solved cases. But the evidence that the testing of mere arrestees helps in the effort is surprisingly thin, said Julie E. Samuels, a senior fellow at the Urban Institute, who helped write a comprehensive study on the question.

Jayann Sepich, who has worked to enact laws allowing DNA testing of arrestees since the murder of her daughter Katie in 2003, said her daughter’s killer would have been identified three years earlier had his DNA been tested when he was arrested. In the meantime, the authorities conducted an expensive investigation.

“A $35 cheek swab would have saved $200,000 in her case,” Ms. Sepich said.

A recent study by Jennifer Doleac, an economist at the University of Virginia, found that DNA testing has systemic consequences, too. “I do find there are big reductions in violent crime as these DNA laws are introduced,” she said of laws allowing testing after conviction.

Professor Doleac’s most intriguing hypothesis was that rational people who know that the police already have their DNA may opt not to commit crimes in the first place. That could justify testing not only people arrested but everyone else, too.

Indeed, said Marc Rotenberg, the president of the Electronic Privacy Information Center, many DNA laws and court decisions upholding them are based on logic that has no obvious stopping point.

“The line has gradually been migrating,” he said, “to the endpoint of everyone.”

Adam Liptak, NY Times

The US Supreme Court’s ruling upholding Maryland’s law allowing law enforcement to collect DNA upon arrest and prior to conviction fails to protect the privacy of Americans’ DNA and is a serious blow to human rights in the United States.

In Maryland v King the Court has now carved out a dangerous exception to the bedrock principle of fourth amendment jurisprudence in this country that requires police have probable cause to believe that a suspect has committed a crime before a search can take place.  Rather than waiting for the criminal justice system to sort out who is guilty and who is not, the Court analogized taking DNA to fingerprinting for identification only and completely ignored the practical reasons that police take DNA from suspects-to investigate unsolved crimes. They further ignored basic science by failing to examine the robust informational content in every person’s DNA to reveal health history among other highly personal information.  As Justice Scalia noted in his scathing dissent, the decision’s scope is  “vast” and “scary,” and DNA collection is an unequivocal violation of Americans’ Fourth Amendment right to be free from “unreasonable searches and seizures” of their bodies and homes.

Maryland’s DNA Collection Act is representative of a growing trend of state’s across the country   massively expanding their collection of DNA.  Because only a fraction of those who are arrested are ultimately charged and convicted, however, this practice necessarily will permit the government to collect DNA from innocent people. 

That the government would obtain DNA from any innocent person is disturbing, but the practice visits a special and severe harm upon minorities.  Members of minority groups are arrested in disproportionate numbers, and a disproportionate percentage of innocent arrestees are therefore likely to be minorities.   

As Justice Scalia declared: “Make no mistake about it: As an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.”   

In looking at the issue of when the government should be allowed to seize, analyze, and stockpile our genetic blueprint, the Supreme Court failed to base their analyses on a clear and complete understanding of the interests involved on both sides, and instead relied on assumptions about DNA databanks and unsupported claims that it is or is not useful for particular purposes.  This decision will have a significant impact on the genetic privacy of  many Americans; it should have been based on evidence and science, not on speculation and mere assertions.

Council for Responsible Genetics

No, the Supreme Court’s 5-4 holding today in Maryland v. King, that anyone arrested for a “serious crime” can have his or her DNA taken without [...]]]> The day that DNA cheek swabs officially became the new fingerprints deserves to be marked and remembered — and not just because of the inevitable march of technology.

No, the Supreme Court’s 5-4 holding today in Maryland v. King, that anyone arrested for a “serious crime” can have his or her DNA taken without any suspicion, is a landmark because it represents a major step toward a “Gattaca” world. This means that evidence of a crime can be collected without any particular suspicion, avoiding the pesky requirement of a warrant that the Founding Fathers thought would give us liberty and privacy.

Justice Anthony Kennedy’s majority opinion treats the standard collection of DNA samples from arrestees in Maryland as the logical outgrowth of the state’s interest in identifying the people it has arrested. This is a bit of a surprise from Kennedy, who can generally be counted on to embrace liberty. Yet in this case, he wrote, the state’s interest in keeping track of everyone it has arrested can be satisfied more accurately by DNA than by fingerprinting. And the swab of the cheek is, he said, little more invasive than a fingerprint.

If DNA sampling was actually like fingerprinting, this argument might be convincing. But of course it isn’t. Fingerprints are a phenotype that reveals nothing except a random pattern that no two individuals share. DNA, however, is your genotype: the blueprint for your entire physical person. If the government has my fingerprints, it’s like they have my randomly assigned Social Security number. If it has my DNA, it’s like they have the entire operating system.

Full Blueprint

That DNA is a full blueprint matters in two major ways: The first and most basic is that when the state possesses genetic information, it can — and in the future, almost certainly will — know vast amounts about the person whose genes are typed. The court said this wasn’t a worry because Maryland law prohibits the use of DNA information beyond identification. But in a world where every arrestee is sampled, how long will that legal principle last?

Yet it was the second concern that exercised Justice Antonin Scalia in his pungent dissent. Ordinarily, Scalia explained, a search can be performed only on probable cause and with a warrant. Fingerprints are not a search. But DNA is a search, and for a very important reason: The DNA of the petitioner, Alonzo Jay King Jr., was used to link him to the rape he was accused of committing. In other words, said Scalia, the purpose of the search and the swab wasn’t to identify the accused with a unique marker. It was to solve a crime in question.

If Scalia’s distinction seems subtle, it shouldn’t. Fingerprints are generally used for bureaucratic identification and only occasionally to solve a crime — when the criminal has been careless enough to leave them behind. DNA, by contrast, hasn’t, thus far, been used for bureaucratic identification. It is useful primarily for solving crimes, since it is almost impossible not to leave some DNA behind wherever we may go and whatever we may do. To prove the point, Scalia demonstrated that King’s DNA sat around for weeks before being analyzed — and was eventually analyzed to solve a crime, not to keep track of the criminal.

What is remarkable, then, is that even Justice Scalia — joined by the liberals Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor — thinks there would be nothing wrong with sampling every arrestee’s DNA if the purpose really were just to keep tabs on them. The constitutional objection focuses on what the DNA is actually used for. However, these two functions — bureaucratic identification and crime solving — can probably never be fully separated in the real world. As technology improves, the DNA database could be employed to solve crimes even if its primary purpose were just to be for bureaucratic classification. The reason, again, is the nature of DNA itself, which is not only unique but also oozes from our every pore.

Libertarian Impulse

Justice Scalia’s libertarian impulse forms a real contrast with his conservative colleagues. It can be seen in his greater precision of language: Only Scalia, among the court’s conservatives, would build an opinion on the distinction of two different meanings of the word “identification.” Furthermore, Scalia distrusts the administrative state’s tendency to subsume the criminal-justice system. The fear that bureaucracy swallows rights — and that our criminal-justice liberties are vulnerable to this process — has also been reflected in Scalia’s repeated votes to strike down the federal sentencing guidelines.

On the other side, Justice Stephen Breyer’s decisive vote with the conservatives to provide a majority today is also characteristic and worth noting. Breyer is a pragmatic rationalist whose sympathies usually lie with effective bureaucratic administration. From his standpoint, it would be naive and silly to stand in the way of inevitable technological progress.

This case, then, posed a choice between technological state power and Luddite liberty. Liberty lost. Remember the day.

Noah Feldman, Bloomberg

Today the FGPI submitted comments to the South African Parliament on the recently introduced Criminal Law [...]]]> The Forensic Genetics Policy Initiative (FGPI) is a global human rights project, chaired by the Council for Responsible Genetics, GeneWatch UK and Privacy International, which is dedicated to ensuring that the expansion of DNA databases is consistent with human rights principles.

Today the FGPI submitted comments to the South African Parliament on the recently introduced Criminal Law (Forensic Procedures) Amendment Bill.  This bill creates a legislative framework for the collection of DNA and the construction of a DNA database in South Africa.   The FGPI found that while the current draft of the bill address a number of inherent privacy and human rights issues attendant to forensic DNA collection and storage, significant concerns remain and the bill does not achieve a proper balance between the legitimate needs of law enforcement and human rights.

The FGPI comments concluded:

“Considering the immense weight of information that DNA carries, allowing law enforcement to seize demonstrably innocent persons DNA, DNA from individuals who have yet been  proven guilty of any crime, and DNA from person’s convicted of even minor crimes for which DNA evidence is not even relevant is to give law enforcement uncontrolled and unprecedented access to the private lives of the citizens of South Africa.”

The FGPI expects to travel to South Africa this year and assist Parliament and NGO’s both formally and informally as this bill develops and proceeds through Parliament.

A full copy of the FGPI’s comments can be found at the following link:

FGPI Comments on Criminal Law (Forensic Procedures) Amendment Bill.

The abrupt April 19 departure of Theresa Caragine is the latest snafu to befall the office and has [...]]]> A top deputy at the medical examiner’s office who has been lauded for her work in DNA testing resigned amid revelations that she sidestepped lab protocol in at least two criminal cases, the Daily News has learned.

The abrupt April 19 departure of Theresa Caragine is the latest snafu to befall the office and has already affected ongoing cases in the Bronx and Brooklyn, according to court papers.

Hundreds of rape cases the office examined were already under review due to potentially botched testing by lab tech Serrita Mitchell, 55, who resigned but later denied wrongdoing.

That scandal also led to the suspension of Mecki Prinz, the office’s forensic biology director. Prinz, 55, resigned May 3.

The latest debacle has opened the door for defense lawyers to question DNA evidence in several cases.

“I hope that the … system installation and application of the DNA method, which enables [...]]]> Kosovo’s Forensics Agency has become one of the 265 labs in more than 40 countries that are using CODIS, the Combined DNA Index System, to manage a database, a move that experts said will revolutionise the country’s fight against crime.

“I hope that the … system installation and application of the DNA method, which enables secure identification of persons through his traces, through bits of skin, bone parts, hairs and even traces of dry blood or sperm traces, found at the crime scene, would mark a radical turn in fighting and preventing any form of criminal activity,” Kole Krasniqi, a Fama University security science professor, told SETimes.

The application of the DNA method in the identification of persons based on his/her genetic trace marks a positive turn in fighting crime in general and especially in investigating and prosecuting unsolved crimes.

The new DNA platform is considered very important for the law enforcement agencies. The system is a database in which the DNA profiles are placed and can be automatically compared and exchanged with other countries.

The new system will enable the establishment of an advanced national database for DNA profiles, an automatic comparison of the DNA profiles and automatic exchange of data with the regional and EU-member countries.

Arsim Gerxhaliu, the director of the department of forensic medicine under the ministry of justice, told SETimes that the system will allow for faster and more precise reports on criminal cases, which are delivered to the prosecutors.

“This is very important for forensic medicine. We had a lot of problems with the analysis on crimes of sexual violence and other crimes. Kosovo needs it, it could have been done earlier, but it is still in the right time for the law enforcement agencies in our country,” Gerxhaliu told SETimes.

Blerim Olluri, Kosovo Forensics Agency director, told SETimes that when it comes to the exchange of information with regional or EU partners, it becomes a political issue.

“The platform offers the technical possibilities for the exchange of information, the exchange of the DNA profiles, but an inter-state agreement is needed [in such cases],” Olluri said.

Olluri said the agency aims to become more professional by using more forensic methods of expertise, which requires modern equipment and programmes as well as trained and specialised staff.

“Further steps towards professionalism will be the implementation of the law on the Kosovo Forensics Agency; the increase of capacities to make forensic expertise of audio, voice, soil, gunpowder, glass; and the increase of quality-accreditation methods according to international standards,” Olluri told SETimes.

The agency started DNA analysis in 2009.

Linda Karadaku , Southeast European Times in Pristina

Several sequences of DNA not found in nature – probably because they are incompatible with life – were identified in 2007. Now it seems these so-called nullomers can be used [...]]]> DNA so dangerous that it doesn’t exist in nature has been given its first useful role – keeping innocent people out of jail.

Several sequences of DNA not found in nature – probably because they are incompatible with life – were identified in 2007. Now it seems these so-called nullomers can be used to tag DNA samples taken from police suspects. If a suspect’s DNA was tagged and then accidentally mixed with a crime-scene sample it would place them at the scene when perhaps they were not. But the tag’s presence would prove that particular DNA sample came from sloppy lab or forensic practice and not the suspect.

Greg Hampikian of Boise State University in Idaho and his colleagues impregnated filter paper with various nullomers. The cards were then used to soak up and store DNA samples from a knife blade and a coffee cup lid.

Sure enough, even when Hampikian diluted the DNA samples 100,000 times, the nullomers were still identifiable, and didn’t interfere with analysis of the original DNA profile (Journal of Forensic and Legal Medicine, doi.org/mcf).

New Scientist

Proponents of the bill say it has the potential to help police take violent criminals off South Africa’s streets.

According to a cabinet statement, the [...]]]> The Criminal Law (Forensic Procedures) Amendment Bill – also known as the DNA Bill – is on its way to Parliament after being delayed for five years.

Proponents of the bill say it has the potential to help police take violent criminals off South Africa’s streets.

According to a cabinet statement, the bill “paves the way to regulate and promote the use of DNA in combating crime, taking into account constitutional requirements”.

If it is passed into law, the bill will increase the size of the national DNA database: all suspected and convicted criminals will have their DNA profile included on the database, which will be compared to DNA profiles collected from crime scenes and victims of crime.

The DNA Project says this will greatly assist police in gathering evidence, and prosecutors in gaining convictions.

The DNA Project, headed by attorney Vanessa Lynch, has been lobbying for this legislation since 2008.

Lynch has a personal connection to the issue: her father was murdered in his home in 2004, but no one was convicted after all traces of DNA and other forensic evidence were lost.

“To not utilise all of these things in a country which is screaming – it just seems ludicrous, doesn’t it?”

Lynch said that by facilitating police efforts, the DNA Bill would put more offenders behind bars.

The larger the database, the more chance police have of linking an unknown DNA profile to a known profile taken from a suspect or convicted offender.

According to a press release from the DNA Project, more than one million South African children have been raped since the bill was first presented to the cabinet.

“We have a methodology that is tangible and works, but people are dragging their heels,” said Lynch.

The DNA Project is waiting to hear when the police portfolio committee will introduce the DNA Bill into its programme.

Public submissions will then be called for and the committee will review the bill.

Lynch is hopeful the bill will be passed before the next election, or DNA project will have to begin the process all over again with the new cabinet, further delaying the process.

“Then it’s time to literally start toyi-toying to say this is just getting out of hand,” she said. – Cape Argus

Allison Decker, IOL News