By Ariane de Vogue
When the Supreme Court hears a case challenging a Maryland DNA law this week, one former prosecutor will be remembering the dormant rape case she says was solved because of the law.
At issue before the court is the Maryland DNA Collection Act, a law that allows officials to take the DNA from those who have been arrested, but not convicted of a serious crime.
Elizabeth Ireland, the former prosecutor from Wicomico County, Maryland, knows the Supreme Court arguments will revolve around the legal standard the Justices should apply in analyzing the law. But she says she will be thinking back to 2009 when she was notified that there was a "DNA hit" on a rape case that had been unsolved for six years.
"I went to visit the victim, to tell her they had finally matched the DNA retrieved after she had been raped, with a man who had recently been arrested," Ireland said in an interview.
The victim, who told Ireland she had nailed shut her windows in the years following the crime, was relieved that authorities had a name—Alonzo Jay King Jr. The victim had never seen the attacker because he had a scarf over his face and a hat pulled over his head. After he raped her she went to the hospital and underwent a sexual assault forensic exam and semen was collected. The sample was loaded into a DNA data base, but no matches were returned—until 2009.
Last April Ireland was stunned when the Maryland Court of Appeals ruled against a key provision of the law. "We saw a carefully crafted collection statute," she said, " that closely matches similar laws in 27 other states."
But opponents of the law say it allows officials to run rough shod over the Fourth Amendment's ban on unreasonable search and seizure.
Michael Risher, a staff attorney with the ACLU of Northern California, points out that before King was ever linked to the 2003 rape he was in jail for assault. The prosecutors could have waited for a conviction in the assault case –which carries a penalty of up to ten years--before taking his DNA.
"What we want in our DNA databases is DNA from people who have actually been involved in criminal conduct," says Risher, "and the way we do that is to take it from those people who have been convicted. What arrestee testing does is to take DNA from people—many who haven't done anything wrong."
"It's a violation of privacy, a huge waste of resources and it doesn't do anything to make us any safer," he says.
Steven D. Benjamin, president of the National Association of Criminal Defense Lawyers (NACDL), also opposes the law.
"This case is an excellent example of the need to balance competing interests," he says. "The nature of law enforcement is that they seek every tool possible to more effectively solve and prevent crime. It's the responsibility of the courts to draw a constitutional line to ensure that our most fundamental rights as American people are protected."
Benjamin says, "The Fourth Amendment requires both probable cause to believe that a search will yield evidence of a crime and a warrant. The collection of DNA from someone who has merely been arrested violates the Fourth Amendment because there is no reason to believe that the DNA they collect is evidence of a crime."
In court briefs, lawyers for the NACDL told the Supreme Court that those who have been arrested for a crime have broader rights than those who have been convicted. They say that Maryland is attempting to "shoehorn" a DNA search of an arrestee into the "exceptionally limited categories of warrantless, suspicionless searches" that the court has approved.
"Extracting a DNA sample from the inside of an arrestee's body, no less than an intrusion into the home, falls within the core category of searches historically considered unlawful absent a warrant and probable cause. And the search here does not involve an exigency or any other limited exception to the warrant requirement."
But Ireland counters that swabbing the inside of an arrestee's mouth is not an invasive search. "Do you floss your teeth? Do you think that is intrusive? "It's a q-tip put in the corner of a person's mouth. How is that any more intrusive than fingerprints?" says Ireland.
Lawyers for the Department of Justice have filed a brief supporting the law. The government argues that the DNA collection advances an important government interest that outweighs an arrestee's privacy rights.
Solicitor General Donald B. Verrilli argues in court briefs that the swab is hardly invasive, instead it is collected from one of the arrestee's cheeks which is "visible to others when an individual speaks, yawns, or eats and accustomed to touching with a toothbrush."
Sandra K. Levick, a lawyer for the Public Defender Service for the District of Columbia, is worried about the national trend toward expanding DNA sample collection from those convicted of a crime to include arrestees. In briefs filed with the court, she criticized supporters of the law for equating the collection of DNA with the longstanding practice of fingerprinting arrestees at booking.
"Sampling arrestee DNA requires a far more significant physical intrusion than fingerprinting," Levick wrote in court papers. "It places in the state's hands a trove of private information that fingerprints do not."
She does not buy the argument that the DNA testing is done primarily to identify arrestees. She says the goal of the law is to solve cold crimes and the court could be taking a dangerous step.
"But ultimately, as this court has made clear, the state's ever-present interest in solving crimes is not enough on its own to justify a search into private realms. If it were, what prevents the state from invading the privacy of any person, with the assistance of any technology that makes that invasion more efficient than ever before?"
Ireland, who now works for a rape crisis center, has heard all of these arguments before. She is focused on the victim in her case. "I am experiencing the victim's anguish in my case. There are literally thousands of other victims that might be in her shoes depending on the outcome of this case."
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