Tuesday, June 4, 2013

I Agree With Scalia's Dissent: Hell Must Be Freezing Over

The Supreme Court ruled yesterday in a case from Maryland involving the running of a suspect's DNA against a database of DNA collected in earlier unsolved crimes. Maryland law allows such collection, and the Supreme Court upheld the collection and use of one man's DNA in a rape case unrelated to the reason for his arrest. The ruling was a 5-4 decision, with Justice Antonin Scalia offering a strong dissent (rare for him these days) on Fourth Amendment grounds. From an editorial in the Los Angeles Times:

The 5-4 decision affirmed the rape conviction of Alonzo King, from whom a DNA sample was drawn in 2009 after he was arrested for menacing a group of people with a shotgun. When his DNA profile was fed into a database of unsolved crimes, it matched DNA taken from the scene of a rape in 2003. He was charged and ultimately convicted of that crime.

Justice Anthony M. Kennedy's majority opinion disingenuously suggested that swabbing King's cheek for DNA was reasonable given "the need for law enforcement officers in a safe and accurate way to process and identify the persons and possessions they must take into custody."

But, as Justice Antonin Scalia noted in a devastating dissent, there was no real question about King's identity or, for that matter, his address or date of birth. The real purpose of acquiring his DNA and entering it into a database was to see if King could be linked to other crimes.

In other words, Mr. King was convicted as a result of a computer-driven "fishing expedition" in which a cheek swab taken in connection with a completely unrelated crime was used to connect King with a rape with which, to that point, he had not been charged, or even suspected.

In America, in theory, we may not "round up all the usual suspects" as a means of identifying the perpetrator of a crime. Testing every individual stopped for any kind of violation... threats, thefts, even traffic stops... for DNA matching an unrelated crime for which there is no reasonable suspicion of the individual's perpetration of that crime... is, one would think, a violation of the Fourth Amendment's prohibition of "unreasonable searches". One might also think it compels the suspect to testify against himself, giving bodily fluids when there is no reasonable suspicion that the suspect has committed that particular crime. An American defendant's protections in court include a requirement that the charge be laid with great specificity.

This is not about whether rape is ever acceptable. It is never acceptable. No, this is about what means can be used against which individuals to determine who committed a rape. Searching every male who comes into the police department for whatever reason to see if he might, by chance, be a rapist is far outside the pale... or at least it was until this extreme Supreme Court ruling. Our justice system requires a certain order of things: reasonable suspicion, evidence obtained by a warrant based on that suspicion, trial (if the evidence justifies it), conviction, punishment. Skipping steps in this protocol is certain to wreak injustices in some serious cases. What of every other male whose DNA was tested in connection with this particular earlier crime? Where were their Fourth Amendment rights?

1 comment:

  1. The claim of the majority opinion that the DNA sample is being used for purposes of positive identification is totally absurd, as Scalia pointed out. The standard full set of fingerprints is more useful for purposes of identification because fingerprints are used for identification by organizations not affiliated with law enforcement, and are more likely to provide a definite match.

    This is invasive, medical, and not used uniformly. If they want a cheek swab, they should apply for a warrant.



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