June 3, 2013

Justice Scalia writes a dissent — in a 4th Amendment case — joined by Justices Ginsburg, Sotomayor, and Kagan.

The case, Maryland v. King (PDF), just released, is about taking a cheek swab for DNA purposes, as a routine part of booking a person the police have arrested. The dissenting opinion begins:
The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence. That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment. Whenever this Court has allowed a suspicionless search, it has insisted upon a justifying motive apart from the investigation of crime.

It is obvious that no such noninvestigative motive exists in this case. The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous. And the Court’s comparison of Maryland’s DNA searches to other techniques, such as fingerprinting, can seem apt only to those who know no more than today’s opinion has chosen to tell them about how those DNA searches actually work.
ADDED: Orin Kerr notes that "Justice Scalia has been on the defense side of every non-unanimous Fourth Amendment case this term:"
King (today’s case in which he wrote the dissent), Bailey (in which he joined the 6-3 majority), Jardines (in which he wrote the majority), and McNeely (in which he joined the Sotomayor plurality/majority opinion). In contrast, Justice Breyer has been on the government’s side in each of the Term’s non-unanimous Fourth Amendment cases: King (in which he joined Kennedy’s majority), Bailey (in which he wrote the dissent), Jardines (in which he joined the dissent) and McNeely (in which he joined the more government-friendly Roberts concurrence/dissent with Alito).

118 comments:

Lem said...

And the Court’s comparison of Maryland’s DNA searches to other techniques, such as fingerprinting, can seem apt only to those who know no more than today’s opinion has chosen to tell them about how those DNA searches actually work.

Sounds like the dissenters are in the know ;)

Nonapod said...

credulity of the credulous

That's the name of my new band.

edutcher said...

If memory serves, DNA can only eliminate you as the guilty party, so whether it's a bad thing is up in the air.

I'm a little fuzzy (not my area of expertise, after all) why a DNA swab would be a violation of the 4th Amendment and fingerprinting wouldn't?

Because one actually penetrates the body (so to speak)?

Susan Stewart Rich said...

Scalia uses his powers for good.

SteveR said...

Ok I'm willing to declare myself ignorant. What is the difference btween fingerprinting and DNA "searches" that Justice Scalia thinks is so obvious?

Larry J said...

edutcher said...
If memory serves, DNA can only eliminate you as the guilty party, so whether it's a bad thing is up in the air.

I'm a little fuzzy (not my area of expertise, after all) why a DNA swab would be a violation of the 4th Amendment and fingerprinting wouldn't?


DNA has been used to solve cold cases, some of them decades old. Many states have built extensive DNA databases based on arrest samples plus data from unsolved crimes. Taking DNA samples as a matter of course during arrests is similar in a way to taking fingerprints but it seems to go much further, at least to me.

edutcher said...

I know where you're going, a database of who and what everybody is.

As I say, my question is why one and not the other?

Susan Stewart Rich said...

Finger-printing doesn't categorically overcome the reasonable doubt standard. DNA, on the other hand, does.

Ignorance is Bliss said...

edutcher said...

If memory serves, DNA can only eliminate you as the guilty party, so whether it's a bad thing is up in the air.

DNA can certainly eliminate you as a suspect. However, it can also incriminate you. While it is not 100% guaranteed, it is strong evidence. But even if that evidence could not be presented to a jury, if the police have your DNA on file from a previous crime, and it later matches DNA found at the scene of a new crime, it would certainly make you a prime suspect.

RAH said...

Plus once your DNA is in a database it can be accessed for other databases such as insurance research etc.

RAH said...

Plus once your DNA is in a database it can be accessed for other databases such as insurance research etc.

Ignorance is Bliss said...

I don't see the difference that Scalia sees between fingerprint and DNA.

Susan Stewart Rich said...

Scalia says, "[a]t any rate, all this discussion is beside the point. No matter the degree of invasiveness, suspicionless searches are never allowed if their principal end is ordinary crimesolving. A search incident to arrest either serves other ends (such as officer safety, in a search for weapons) or is not suspicionless (as when there is reason to believe the arrestee possesses evidence relevant to the crime ofarrest)."

It's funny that he would say, "all this discussion is beside the point." Just Ginsburg agreed?

Ignorance is Bliss said...

I do think that there should be checks on the system such that it can only search the database for matches or partial matches.

It should not allow a police officer to poke around someone's DNA looking for medically relevant markers ( is this person prone to breast cancer? ) or racial ancestry ( is this person really 1/32 native american? ), just to give a couple examples of what should not be allowed.

Methadras said...

It's a dissent, so it means nothing.

notalawyer said...

I have trouble understanding the dissent too. Say a burglar is arrested and fingerprinted, and later on police find his fingerprints at another crime scene an arrest him--not a problem, right? Then say the same burglar is arrested and cheek-swabbed, and later leaves his DNA at a rape scene, and the police arrest him. How do those scenarios differ?

Methadras said...

Ignorance is Bliss said...

I don't see the difference that Scalia sees between fingerprint and DNA.


In terms of identification or process? Sometimes neither are possible outside of a baseline in the databases looked for. If my fingerprints or DNA aren't in a database, then they are effectively unidentifiable.

traditionalguy said...

If merely arresting a person requires a DNA record creation, then there is no 4th Amendment. Why not wait until the conviction, if any?

The National Health Service currently being called Medicare and Medicaide has the DNA test results available. I suspect it is already secretly in the database at Homeland Security.

Ignorance is Bliss said...

I guess I could see an argument that fingerprinting is needed for positive identification, so that the person who is already wanted can't get away by using a false id.

Once it fingerprint database exists, police can then use it to look for matches.

Likewise, a DNA database could be used for such identification, if the fingerprint database did not exist. However, since you already have the fingerprint database, collecting the DNA is not needed for identification, and is therefore nothing but a search.

I'm not saying I agree with this reasoning, but I can see the argument.

Ignorance is Bliss said...

Methadras said...

In terms of identification or process?

In terms of constitutionality.

Susan Stewart Rich said...

"It's a dissent, so it means nothing."

@Methadras

Not true for many reasons. But most notably, as Althouse pointed out in her heading, Scalia was joined by Gingsburg, Sotomayor and Kagan. This is highly unusual. The language in the dissent will be helpful because it comes from both sides of the "political" spectrum.

The Drill SGT said...

edutcher said...
I'm a little fuzzy (not my area of expertise, after all) why a DNA swab would be a violation of the 4th Amendment and fingerprinting wouldn't?


I think the court makes the distinction that the fingerprints are being taken to identify this guy who says he's Sparticus, from the ten other Sparticus's in custody.

The DNA swab isn't easy enough to use in routine administration of the cell block, but is very useful in cold cases that have no connection to the current crime. and for which the police can make an investigatory guess, absent the swab they don't have yet. DNA allows bootstrapping...

edutcher said...

So it's something definite (all fingerprints are unique) versus something that may not be 100%.

OK, that makes some sense.

David said...

Those who do not understand the difference between fingerprinting and the DNA test should actually read the opinion. The majority's justification was that the DNA test was useful in identification of the person in custody. The dissent argues rather effectively that this is simply untrue:

DNA testing does not even begin untilafter arraignment and bail decisions are already made. The samples sit in storage for months, and take weeks to test. When they are tested, they are checked against theUnsolved Crimes Collection—rather than the Convict and Arrestee Collection, which could be used to identify them.The Act forbids the Court’s purpose (identification), butprescribes as its purpose what our suspicionless-searchcases forbid (“official investigation into a crime”). Againstall of that, it is safe to say that if the Court’s identification theory is not wrong, there is no such thing as error.

cubanbob said...

Make DNA testing mandatory for child support and see how fast the court reconsiders this ruling. Especially if the mothers could be sued for fraud and the on going support cancelled.

Gabriel Hanna said...

Why DNA is different from fingerprints:

a) Fingerprints contain information only about the tips of your fingers. DNA contains information about your health, who your relatives are, etc. That goes far beyond establishing the fact of who you are.

b) DNA is not the slam dunk people think it is from watching CSI. They can only match snippets and pieces of DNA and DNA does not match one individual in the way that fingerprints do. The more sections of DNA you examine the less likely that two people have the same DNA in common. A prominent example is the Sally Hemings controversy--her descendants DNA matches Thomas Jefferson's, and all his male relatives, but it is impossible to say which one the DNA came from, because they don't have enough to compare.

Ex-prosecutor said...

As a life-long Republican and former prosecutor, I completely concur with the majority holding in this case. It will be astounding the number of crimes which will be solved by taking DNA samples from those arrested. Also helpful will be familial DNA,which matches crime scene DNA to a member of the family of the donor of the DNA sample. The ACLU goes nuts over this.

Methadras said...

Susan Stewart Rich said...

"It's a dissent, so it means nothing."

@Methadras

Not true for many reasons. But most notably, as Althouse pointed out in her heading, Scalia was joined by Gingsburg, Sotomayor and Kagan. This is highly unusual. The language in the dissent will be helpful because it comes from both sides of the "political" spectrum.


Outside of persuasive authority, what precedent or case law powers do dissents have?

Gabriel Hanna said...

In addition, fingerprints are not processed as much as DNA is. Fingerprints are basically images that are visually compared.

DNA evidence has to be chemically processed in a series of steps. At every stage there is the possibility of contamination and error.

DNA is very valuable, provided that all of the steps have been followed correctly and that enough of the DNA has been examined to make a meaningful match. But there are many chances of a slip between cup and lip, and the interpretation of the evidence requires a lot of statistical arguments. No two people, not even identical twins, have the same fingerprints, but genes wouldn't be genes if lots of people didn't share them, that's what heredity MEANS.

Gabriel Hanna said...

@Ex-prosecutor: It will be astounding the number of crimes which will be solved by taking DNA samples from those arrested. Also helpful will be familial DNA,which matches crime scene DNA to a member of the family of the donor of the DNA sample.

In the course of reviewing the technician’s work, supervisors discovered another problem. Sixteen pieces of evidence, generally swabs sealed in paper envelopes, were found in the wrong rape kit, commingling DNA evidence from 19 rape investigations, according to a letter from the medical examiner’s office.
The ACLU goes nuts over this.

I know, isn't it terrible that prosecutors' conviction rates might suffer because the ACLU insists that only people who are actually guilty get convicted.

Rick Caird said...

My concern is that with this ability to capture DNA upon arrest, we will have people arrested just so they can get their DNA. If I suspect Joe is guilty of rape, then I can arrest him for some driving violation and get his DNA to see if he is the rapist.

SteveR said...

OK now I get it, I'm only familiar where DNA collected in an arrest was used to identify the suspect in another crime, simple stuff like that (Katie's Law). The objections still seem very theorectical.

Gabriel Hanna said...

@Rick Caird:If I suspect Joe is guilty of rape, then I can arrest him for some driving violation and get his DNA to see if he is the rapist.

Bingo. And if your lab technician accidentally, or on purpose, contaminates crime scene DNA with Joe's DNA, then the DNA evidence would "prove" it.

Or you might find out Joe isn't related to his father, who is a prominent figure in the local Democratic party. You might find out all sorts of things about Joe. Just like you would if you searched his house with no warrant. Which is why we have a 5th amendment.

Susan Stewart Rich said...

"Outside of persuasive authority, what precedent or case law powers do dissents have?"

@Methedras

Sometimes a dissent is all you have, and that is a lot better than nothing.

Susan Stewart Rich said...

" . . . It will be astounding the number of crimes which will be solved by taking DNA samples from those arrested . . . "

@ex-prosecutor

I think the best way to solve crimes would be to follow people around 24/7, say with GPS trackers. That would really get 'em. Wait, that's unconstitutional. Sometimes the best way to get things done is ethically and morally reprehensible -- not just for you and your family, but for every individual.

ErnieG said...

Re:@Rick Caird Perhaps one unintended consequence of this ruling may be that rapists will be driving more carefully.

Methadras said...

Susan Stewart Rich said...

"Outside of persuasive authority, what precedent or case law powers do dissents have?"

@Methedras

Sometimes a dissent is all you have, and that is a lot better than nothing.


You mean better than nothing as in just words of dissent. Got it. You know, sometimes, silence can be deafening.

Susan Stewart Rich said...

"You know, sometimes, silence can be deafening."

@Methedras

Do you practice law?

Ignorance is Bliss said...

Susan Stewart Rich said...

Sometimes the best way to get things done is ethically and morally reprehensible --

That's very true. But I don't think it applies in this case, because I don't think collecting the DNA is either ethically or morally reprehensible.

But it may still be unconstitutional.

David said...

Those who understand the actual Scalia rather than the dishonest caricature that is usually presented will not find this opinion or this grouping of justices surprising.

Susan Stewart Rich said...

"I don't think collecting the DNA is either ethically or morally reprehensible."

@IiB

I do, but I like your point.

Susan Stewart Rich said...

"Those who understand the actual Scalia rather than the dishonest caricature that is usually presented will not find this opinion or this grouping of justices surprising."

I agree. But you can't blame the liberal media for portraying him that way. He does set himself up for it.

Larry J said...

Rick Caird said...
My concern is that with this ability to capture DNA upon arrest, we will have people arrested just so they can get their DNA. If I suspect Joe is guilty of rape, then I can arrest him for some driving violation and get his DNA to see if he is the rapist.


With government running health care and electronic medical records, you won't even have to do that. What's to prevent the government from mandating every person have a DNA profile on record? All it would take is some additional processing from a routine blood test.

Carl said...

Gabriel Hanna nails it. Fingerprints are just identification. They say who you are, and nothing more.

DNA tells everything about you: who you are, who's your daddy, how long you'll live.

Hey law 'n' order moms, how do you feel about the government being able to tell after a domestic violence arrest whether, like Angelina Jolie, you've got BRCA1 and 2 and have a whomping huge risk of breast cancer?

No, no of course they won't share that with the Obamacare division. There are regulations strictly forbidding that, except in cases where it's in the public interest, such as if you're a racist Tea Partier.

Revenant said...

If memory serves, DNA can only eliminate you as the guilty party

That is incorrect.

John P. Squibob said...

Make DNA testing mandatory for child support and see how fast the court reconsiders this ruling. Especially if the mothers could be sued for fraud and the on going support cancelled.

Au contraire CubanBob. In Kali, by statute a husband is considered the father of all the mother's children, up to and including nine months after divorce papers are filed with the court.

JAL said...

So if the state said it was just going to use the DNA for active cases or cold cases (where there is DNA) does that mean they destroy the DNA when it doesn't match either of those two?

Yeah, right. Didn't think so.

Methadras said...

Susan Stewart Rich said...

"You know, sometimes, silence can be deafening."

@Methedras

Do you practice law?


No. And by god I'm better for it. :D

Ignorance is Bliss said...

David said...

Those who understand the actual Scalia rather than the dishonest caricature that is usually presented will not find this opinion or this grouping of justices surprising.

And those who understand the actual Thomas rather than the dishonest caricature that is usually presented will not be surprised that Thomas had a different opinion.

Ex-prosecutor said...

A number of cases are now coming through the system in which, to stop the running of the statute of limitations, the DNA profile of the perp. was indicted. One recent case, with which I am familiar, dealt with a serial knife-point rapist whose DNA was taken as a result of a minor offense. You can say what you want about intrusive DNA databases on us all, but to law enforcement, the choice is ether to get a brutal criminal off the streets or explain to the rape victims their attacker could not be prosecuted because we had violated his rights by taking a cheek swab.

Personally, I choose the former.

Ignorance is Bliss said...

Susan Stewart Rich said...

I do, but I like your point.

Thanks.

Personally, I think that the the amount that such a database could help solve crime outweighs the invasion of privacy.

However, the Constitution is the supreme law of the land, and I want it to be followed even when I disagree with it.

And I don't disagree with it strongly enough to advocate changing it in this case.

Larry J said...

JAL said...
So if the state said it was just going to use the DNA for active cases or cold cases (where there is DNA) does that mean they destroy the DNA when it doesn't match either of those two?

Yeah, right. Didn't think so.


Once the arrested person's DNA is processed, you don't have to save the DNA. You just enter the analysis results into the appropriate databases.

mccullough said...

With respect to fingerprints, Scalia's position would be the same. Identification is acceptable but solving unsolved crimes isn't.

He dig his Brave New World reference. Huxley was right and Orwell was wrong. People just hand over their freedoms willingly. No need for Big Brother.

Indigo Red said...

What does this do to the 5th Amendment protecting against self-incrimination?

Ross MacLochness said...

Hey, OK, I'll deliver a DNA sample on demand. As long as I can deliver it in the form of saliva, deposited directly on the demanding prosecutor's shoes.

Ross MacLochness said...

Hey, OK, I'll deliver a DNA sample on demand. As long as I can deliver it in the form of saliva, deposited directly on the demanding prosecutor's shoes.

unix-jedi said...

(My first, long comment got eaten, so here's a shorter version)

Ex-prosecutor gives away the real game here.


FAMILIAL DNA.

It'll allow relatives of "persons of interest" to be tagged. Fingerprints tell you nothing about my cousins, parents, or kids.

DNA tells you lots more.

tortdog said...

Scalia has always been about original intent, or what would the people who wrote the law have envisioned and does this law encompass that? Scalia is consistent. Would the Framers have countenanced King George in taking swabs of their DNA for being arrested on suspicion of treason? Absolutely not. They wanted protection from a tyrannical king, and frankly this is akin to that

DNA is clearly different than fingerprinting. Fingerprinting is immediate and can confirm who is in front of you for booking. DNA is not immediate, so arguing it is for "identity" purposes is a joke.

Larry J said...

A is not immediate, so arguing it is for "identity" purposes is a joke.

In the case before the court, they didn't even check the guy's DNA until 3 months after his arrest. Further, there is no national DNA database (yet) to confirm identity. It sounds like the basis for the majority decision was a lie. It's one thing to take the DNA of someone convicted of a crime but quite another to do it for someone who has just been arrested.

Browndog said...

If you have no other way to "identify" who you have in custody, I'm sure you can get a judge to sign off on obtaining a DNA sample.

Further, how many are "taken into custody" for a traffic/civil violation?

Lastly, the case failed on it's merits because Law Enforcement already "Identified" the person in custody, and didn't seek a DNA sample for weeks.

But, what the heck--no harm, no foul. I mean, the Statists would never ABUSE their newfound power, would they?

Gabriel Hanna said...

@Ex-prosecutor:You can say what you want about intrusive DNA databases on us all, but to law enforcement, the choice is ether to get a brutal criminal off the streets or explain to the rape victims their attacker could not be prosecuted...

...because we couldn't use admissions obtained through torture.

...because we couldn't use evidence gained through illegal searches.

...because we couldn't just shoot him when we pulled him over for jaywalking.

The problem, ex-prosecutor, is that you are assuming the guilt of the person whose civil rights you wish to violate. The civil rights are there to protect the law-abiding citizens, not from criminals, but from YOU.

Ignorance is Bliss said...

Gabriel Hanna-

While your middle point is on target, your first and third miss wildly.

One reason ( not the only ) that you can't use a confession obtained through torture is that people being tortured will confess to anything, so the confession is not actual evidence of a crime. Likewise, jaywalking in no way shows that the person committed the rape.

Also, both torture and shooting do harm to the person to whom they are done. Taking a DNA sample does not.

You would make a better argument if you stuck to valid examples such as your second ( I'm sure there are plenty more that could be found ) rather than going for the hyperbole.

Ex-prosecutor said...

Actually, it's not me you need protection from, since all I've done is prosecute. It's Ted Bundy you need to fear.

Here's a situation which easily could occur. Through DNA taken at the time of arrest, police identify, early on, a prolific serial killer such as Ted Bundy, whose DNA was taken from his semen at several rape-murders. Yet, since his DNA was illegally taken, as per your view, he must be released, because there is no other proof against him.I'm not making this up - it happens with some frequency.

Will you be the one to explain to the families of his past and future victims the logic in Bundy's being released, how we all would be otherwise diminished but remain pure as he kidnaps, rapes and murders others?

As a corollary, I assume you would disarm us all, also.

Browndog said...

Finger-printing doesn't categorically overcome the reasonable doubt standard. DNA, on the other hand, does.

DNA can be planted at a crime scene. Finger prints cannot--unless it's an Ocean's or Bourne movie.

Further, who can afford a team of experts to dispute DNA claims?

Ken Mitchell said...

In addition to identifying you, a DNA test can identify, with varying degrees of accuracy, everybody you are related to.

Marie said...

DNA can be planted at a crime scene.

The feds swabbed my husband when he was arrested. Later, the state patrol swabbed him again when he registered for the sex offender registry. I haven't asked him but I'd guess the prison also took a sample and later, when he registers at the sheriff's office, they will probably swab him too.

Do I trust all those agencies to keep all his samples safe from misuse? No, I do not.

Marie said...

Yet, since his DNA was illegally taken, as per your view, he must be released, because there is no other proof against him.I'm not making this up - it happens with some frequency.

Yes, he must be released if you got the evidence illegally, you asshole. Rule of law and all that.

If it happens "with some frequency," I'd say the problem lies with your side of the table.

Methadras said...

Ex-prosecutor said...

Actually, it's not me you need protection from, since all I've done is prosecute. It's Ted Bundy you need to fear.


There are a lot more of you then there are Ted Bundy's. No offense, but I'll take my chances against Ted. I think I'd fair pretty well. Once I get into your clutches, chances are I'll never escape. Don't get me wrong, I respect what you do or did, but I don't trust you even as a law abiding citizen.

Browndog said...

Marie said...

All it takes is for someone to leave someone else's cigarette butt at a crime scene--it proves they were there!

All this ruling does is complicate law enforcement/individual rights-

Not stream line them, like Kennedy thinks.

You know what else can "stream line" law enforcement?

Have everyone give a DNA sample, and create a data base.

Force everyone to be micro-chipped.

Restrict movement of everyone to certain hours, on certain days

And on, and on..

My initial reaction to the ruling was "good, I'll never be falsely accused of a crime"....then, I thought about it.

Statist: 1
Individual:0

Ex-prosecutor said...

Browndog and Marie:

I disagree with you both, and here's why.

While fingerprints cannot easily be planted at a crime scene, a lift card or photo is what's used for the print comparison and is brought into court, not the object on which the print was found. So, officers could get a lift from a print the defendant left on, for instance, a drink can the defendant touched at another crime scene or in a police interview room and claim it came from the crime scene.

Also, to make things more complicated, sometimes prints are found in blood. The size of the print may be such that the crime scene officer has to decide whether to try and lift the bloody print or destroy it by taking it for a DNA sample.

As for whether officers could plant DNA at a crime scene, they sure could. However, if they want to get a particular person, they could more easily swear that he had confessed to them. That would be enough to obtain a conviction.

DNA practicalities better understood when you've been to a number of crime scenes and seen, as well, what happens in court with proof of it.

Jay said...

Ex-prosecutor said...
I'm not making this up - it happens with some frequency.


Yes you are.

It is silly, absurd bullshit.

Jay said...

You can say what you want about intrusive DNA databases on us all, but to law enforcement, the choice is ether to get a brutal criminal off the streets or explain to the rape victims their attacker could not be prosecuted because we had violated his rights by taking a cheek swab.

Right, that's like the only choice.

And it isn't as I couldn't bog this server down with examples of law enforcement faking evidence or anything.

Ex-prosecutor said...

Thanks, Marie. I've practiced law for 40 years, and this is the first time I've ever been called an asshole. While my proudest moment remains as when I became a notary public, my recognition as an asshole is right up there.

Jay said...

The wonders of DNA!

Greg Taylor was wrongfully convicted of killing a prostitute in 1991 in North Carolina. Taylor proclaimed his innocence, but the evidence against him seemed insurmountable: blood from the victim found on his SUV.

Larry J said...

Methadras said...
Ex-prosecutor said...

Actually, it's not me you need protection from, since all I've done is prosecute. It's Ted Bundy you need to fear.


This is what things have come to, a fundamental distrust of government. Prosecutors like the one in the Duke Lacrosse fake rape case can ruin peoples' lives just as surely as a mass murderer. Political corruption like in Chicago and now in DC (IRS, EPA, etc.) mean that people who used to describe themselves as "law and order" supprters are learning to distrust not only the government in general but law enforcement in particular.

A cop is only as good as the worst actor that's allowed to remain on the force. Don't like being considered a crooked cop? Kick out the crooked cops from your force. The same applies all the way up the chain including prosecutors. Clean up your act and prove you're worthy of our trust and maybe you'll eventually regain it. Don't hold your breath waiting for it to happen, though.

Jay said...

Ex-prosecutor said...
Actually, it's not me you need protection from, since all I've done is prosecute.


Really?

Mike Nifong did a heck of a lot of damage.

Ted Bundy is a rarity, people like Nifong, as we see with this goofy Angela Corey woman in Florida, not so much.

Browndog said...

Again, this case evolves around "identifying" a person...not crime scene evidence.

Again, leave it to a lawyer to...do what lawyers are trained to do with the facts.

Jay said...

Ex-prosecutor said...

As a corollary, I assume you would disarm us all, also.


That's pretty fucking galling coming from the likes of you.

Would you like me to start posting examples of District Attorney Associations supporting gun grabbing measures?

Jay said...

Ex-prosecutor said...

Will you be the one to explain to the families of his past and future victims the logic in Bundy's being released, how we all would be otherwise diminished but remain pure as he kidnaps, rapes and murders others?


Oh and ^ that has nothing to do with the bullshit Justice Kennedy provided in the opinion today -Kennedy asserts that DNA is being taken to check if Allen Brown is Allen Brown.

Gabriel Hanna said...

@ex-prosecutor:Will you be the one to explain to the families of his past and future victims the logic in Bundy's being released, how we all would be otherwise diminished but remain pure as he kidnaps, rapes and murders others?

Yes, I will be the one to explain to the families of future victims that because YOU broke the law, YOU screwed up the case and let a killer walk--because YOU thought laws were for little people.

I have to explain it to them because YOU are too cowardly to take responsibility for YOUR violation of the law.

Meanwhile, keep scaring us with people like Ted Bundy, who are rare as hen's teeth, instead of overzealous prosecutors who think they have Godlike powers to divine guilt without evidence and therefore feel justified in ignoring the laws they are supposed to help enforce.

We need sheepdogs to protect us from the wolves, we got it. But when a sheepdog starts killing the chickens and biting the baby, it's time to get rid of him.

Jay said...

FBI data from the database covering 1960-2010 and new 2011 national data show that the U.S. murder rate hit a 47-year low in 2010, of 4.8 per 100,000, and then declined slightly again in 2011 by a tenth of a percent; while the U.S. violent crime rate hit a 38-year low of 403.6 in 2010 and then declined further to 386.3 per 100,000.

But let's give the government more power, because Ted Bundy!!!!

Browndog said...

In fairness, Scalia has been a part of giving the police state more and more power over the years-

I'd like to think he's acquired some "wisdom" over the years.

Here's a thought-

Stick to the Constitution.

Case law, precedent, and dicta are not the "new, living" Constitution, as taught by many law schools.

goingalt said...

We need a constitutional amendment that bars all levels of government with language like this:

"No record of physical attributes or biometrics, which includes but is not limited to fingerprints, face recognition, DNA, palm print, hand geometry, iris recognition, retina scan, bacteria counts and odor or scent may be taken unless upon conviction of a felony. Fingerprints may be taken only upon conviction of a misdemeanor or felony."

Source: https://mg42guy.wordpress.com/2011/01/04/proposed-privacy-amendment-by-dave-champion/

Browndog said...

goingalt said..

LOL-lawyers would eat that alive!

Not just the text, or the language, or the specific word definitions, but the "meaning".

You want to know why some of the Founders opposed the Bill of Rights?

Because the "rights" were inherent, and applied. If you tried to list them, you could never list them all--and would someday--by law scholars and professors--deem that list as "limited to those rights.

Skeptical Voter said...

I read Scalia's dissent--all of it. He is against "general warrants" as were the writers of the Constitution. It's persuasive.

I understand ex-prosecutor likes to think like a prosecutor. He offers up the Ted Bundy scenario. Ol' Teddy is pulled in for a minor beef--say a domestic disturbance complaint or a DUI--and they take a swab. And several months later, lo and behold---Teddie is a serial killer and we've all been saved.

If it would catch just one serial killer, then it's worth violating the rights of thousands of people.

In some ways the argument mimics the lefties on the nanny state side. If prohibiting 32 ounce drink cups would save just one life, well then it's worth telling all of us we can't have a big gulp. Thank you Mayor Bloomberg.

Revenant said...

Scalia has always been about original intent, or what would the people who wrote the law have envisioned and does this law encompass that? Scalia is consistent.

His opinion in Gonzales v. Raich is impossible to reconcile with either "original intent" or "original meaning" jurisprudence.

Revenant said...

We need a constitutional amendment that bars all levels of government with language like this:

The obvious work-around they will use is to have private contractors collect the data instead, and just pass laws requiring citizens to use that private contractor and that the private contractor had over the data.

Revenant said...

but to law enforcement, the choice is ether to get a brutal criminal off the streets or explain to the rape victims their attacker could not be prosecuted because we had violated his rights by taking a cheek swab.

That's a useful statement, although not for the reasons you intended. Specifically, it serves as a good screening tool; anyone who agrees with it tacitly admits they aren't fit to work in law enforcement.

Average Joe said...

if the police have your DNA on file from a previous crime, and it later matches DNA found at the scene of a new crime, it would certainly make you a prime suspect.

Is this really such a bad thing?

Average Joe said...

It should not allow a police officer to poke around someone's DNA looking for medically relevant markers ( is this person prone to breast cancer? ) or racial ancestry ( is this person really 1/32 native american? ), just to give a couple examples of what should not be allowed.

I don't think most police officers would be interested in doing these sort of things.

Average Joe said...

Scalia was joined by Gingsburg, Sotomayor and Kagan

This could also be seen as definitive proof that Scalia was wrong.

Average Joe said...

My concern is that with this ability to capture DNA upon arrest, we will have people arrested just so they can get their DNA. If I suspect Joe is guilty of rape, then I can arrest him for some driving violation and get his DNA to see if he is the rapist.

But couldn't this same argument be used to prevent police officers from taking peoples' fingerprints?

Average Joe said...

And if your lab technician accidentally, or on purpose, contaminates crime scene DNA with Joe's DNA, then the DNA evidence would "prove" it.

But couldn't a lab tech also screw up finger prints to make an innocent person look guilty?

Average Joe said...

I think the best way to solve crimes would be to follow people around 24/7, say with GPS trackers. That would really get 'em.

This would be incredibly expensive. A more cost effective way would be to use finger prints and DNA.

Average Joe said...

People just hand over their freedoms willingly.

How is protecting the rights of violent criminals protecting my freedom? Exactly what freedoms do murder victims enjoy that would be taken away from them by allowing the police to test DNA?

Jay said...

Average Joe said...
A more cost effective way would be to use finger prints and DNA.


Actually, an RFID chip would be a lot less expensive than fingerprints and DNA

Revenant said...

How is protecting the rights of violent criminals protecting my freedom?

It appears you haven't read what was actually decided here. There is no "only applies to violent crimes" restriction.

If you wish to amend your comment to say "how is protecting the rights of felons protecting my freedom", the answer is simple: you ARE a felon. You can't live in America today and not be; there are simply too many overbroad and contradictory laws on the books. If you think of "criminals" as a class of people you don't personally belong to, you're mistaken. :)

Police like to talk about murder and rape when asking for new or broader powers. The reality is that the average cop has little to no involvement with rape or murder cases during his career -- unsurprising given that cops outnumber rapists and murderers by more than 2 to 1.

The way you need to think about this isn't "police swabbing killers to catch killers". It is "police swabbing you for whatever reason they feel like trumping up, after which the US government has your DNA on file for whatever purpose they may decide to use it in the future". That is what is *actually* being signed off on here.

Ex-prosecutor said...

I just love it when, instead of trying to make legitimate points, people start saying things such as calling me an "asshole" and saying other profanities like "fuck."

So, for those so juvenile as to think that minds can be changed or points made by using off-color language with those with whom they disagree, I'd like to be just as juvenile.

All of you are just a bunch of doo-doo head. Your dogs don't like you, either.

Plus, a lot of prosecutors are doo-doo heads and abuse their power. I agree with you on that.

Jay said...

Ex-prosecutor said...
I just love it when, instead of trying to make legitimate points, people start saying things such as calling me an "asshole" and saying other profanities like "fuck."


I made a whole bunch of legitimate points.

Since you can't respond to them, you'll whine about language.

Jay said...

Average Joe said...


How is protecting the rights of violent criminals protecting my freedom?


Because you're engaging in silly and false premises.

I guess in your mind only "violent criminals" are ever arrested.

Or something.

Ignorance is Bliss said...

 Average Joe said...

I don't think most police officers would be interested in doing these sort of things.

Most people are not interested in committing murder, but we still need to outlaw it. I'm not concerned about most police, just the bad apples who would take advantage of the system for personal or political gain.

Methadras said...

Ex-prosecutor said...

I just love it when, instead of trying to make legitimate points, people start saying things such as calling me an "asshole" and saying other profanities like "fuck."

So, for those so juvenile as to think that minds can be changed or points made by using off-color language with those with whom they disagree, I'd like to be just as juvenile.

All of you are just a bunch of doo-doo head. Your dogs don't like you, either.

Plus, a lot of prosecutors are doo-doo heads and abuse their power. I agree with you on that.


I am not one of those people. However, your butthurt is showing.

Revenant said...

I just love it when, instead of trying to make legitimate points, people start saying things such as calling me an "asshole" and saying other profanities like "fuck."

Just a suggestion, but it is generally a bad idea to devote more posts to complaining about insults than were actually devoted to insulting you.

Ex-prosecutor said...

Jay,

Sorry to be slow, I had to fix dinner,

Actually, I agree with many of your points. I see how reasonable people could disagree on this topic. Further, I agree with the feelings about the Duke and Florida/Zimmerman prosecutors. The
Duke prosecutor was interested only in being reelected. The Zimmerman prosecutor seems to be sadistic, untrustworthy and a person who should not be trusted to be a prosecutor. What the Florida governor should have done was appoint a retired prosecutor and retired judge to avoid those with political ambitions. The prosecutor skipped the grand jury because she probably wouldn’t have gotten an indictment against him. Assuming a reasonably fair jury in this case, I
think they’ll never convict Zimmerman - it should either be not guilty or a hung jury.

So, to end this post, I believe that DNA testing can be a great tool in solving crimes, and the database should be as big as possible. However, the procedure is ripe for abuse by dishonest police and prosecutors.

Revenant said...

I don't think most police officers would be interested in doing these sort of things

You don't know many cops. :)

Hagar said...

I think this may have a little to do with the Rosen affair too.
And we do not even know that it was the Korea leak they were after. Maybe someone thought Rosen might have been a little too attentive to their wife or daughter and asked the FBI to check him out. Or whatever. Dan Brown, call your office!

Average Joe said...

I guess in your mind only "violent criminals" are ever arrested.

Why did you put the words violent criminals in quotation marks? It makes it sound like you don't believe that violent criminals exists.

BooneBoy said...

You say we need more Scalias' because of the way he voted. Well three liberal judges voted the same way, so logic says that we need more judges like them also. I don’t think so.

Rhythm and Balls said...

While fingerprints cannot easily be planted at a crime scene, a lift card or photo is what's used for the print comparison and is brought into court, not the object on which the print was found. So, officers could get a lift from a print the defendant left on, for instance, a drink can the defendant touched at another crime scene or in a police interview room and claim it came from the crime scene.

Yeah, but DNA is left everywhere and can contaminate anything. You shed it almost all the time.

Rhythm and Balls said...

6:04 PM FTW.

Revenant said...

Why did you put the words violent criminals in quotation marks?

Because he's quoting you.

Duh?

Rhythm and Balls said...

It's good to see some connies throwing with the individual rights-defending side of Scalia. Gabe's brought up a bunch of good issues with using DNA as a broad brush default tool for all criminal identification - since it goes far beyond that. The other big issue is crime lab foul-ups, also raised. We're talking about very fickle and ubiquitous stuff. How big a sample is even needed for sequencing nowadays, given that you shed it everywhere? How cautious will crime labs be with keeping separate samples isolated - and to the degree necessary? The potential for contamination is enormous. As testing sensitivity increases specificity will decrease; i.e. contamination will become a worse and worse problem the better our technology for isolating it improves. What are the conditions even like in these labs and what standards are used to accredit them? Who surveys them? How often?

What will happen is that everyone and their mother will now have to use private labs to make sure the integrity of their own personal DNA samples are known and available when these Clouseaus start pretending like they've got a proof-positive handle on the sequence of everyone's genetic code.

And that's just for source identification. Ensuring the integrity of the chain of events from crime scene sample isolation to processing is something that these jokers will just never get right.

As I said before, detection power will increase and so will contamination. Everywhere. It will be like expecting four-year olds to stay within the lines of coloring books. Impossible.

Jay said...

Ex-prosecutor said...

So, to end this post, I believe that DNA testing can be a great tool in solving crimes, and the database should be as big as possible. However, the procedure is ripe for abuse by dishonest police and prosecutors


Ok, fair enough, thanks for the thoughts.

So on that point, what is wrong with the probable cause standard in having a judge sign off on a warrant?

Average Joe said...

Because he's quoting you. Duh?

Perhaps, but it creates the impression that he does not believe that there are such things as violent criminals.

Average Joe said...

You don't know many cops.

Actually I do.

Jay said...

Average Joe said...

Perhaps, but it creates the impression that he does not believe that there are such things as violent criminals.


Uh, no I don't, so you can shut up now.

Average Joe said...

Uh, no I don't, so you can shut up now

Are you saying that you don't believe that there are such things as violent criminals?

gbarto said...

Just think of all the crimes we could solve if they just took a DNA swab from everybody when they showed up to get their vaccinations for school. Any time a crime involving someone over the age of 5 occurred, the government would be able to feed all the samples into a database and know about everybody who was at the scene. In fact, they could do that with everything, even when crimes hadn't occurred but they wanted to know who had done what in a certain place or time for whatever purpose they wanted to know. If it saves just one life...