One week after the U.S. Supreme Court ruled that the government may take DNA samples from people who have been arrested (before getting their day in court) for serious crimes in Maryland v. King, New York Times columnist Adam Liptak discussed the ruling with Innocence Project Co-Directors Barry Scheck and Peter Neufeld.  The case, Maryland v. King, was about whether the authorities may take DNA samples from people arrested, regardless of anything that happens later, ranging from dismissal of charges to acquittal.

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 he and the other justices who agreed with the majority thought the government taking DNA samplings from people presumed innocent by our Constitution is 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.”  Adam Liptak asked Peter Neufeld about the “honor”.

“Not great,” he responded citing the interesting outlook justices have on how to preserve innocence and keep innocent people from government and social persecution.

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.

But last week, Mr. Neufeld said, Justice Kennedy concluded that “it’s O.K. for the state to take DNA, without a warrant…”

“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.

Justice Kennedy’s brief quotation from “Actual Innocence” was especially abbreviated.  “[P]rompt [DNA] testing … would speed up apprehension of criminals before they commit additional crimes, and prevent the grotesque detention of … innocent people.”  The first ellipsis covered six sentences and completely changed the meaning of what the authors wrote in the book.  Essentially, Justice Kennedy attached his own meaning to a book about the wrongfully convicted in order to justify his ruling.  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 second ellipsis constituted the removal of the number of innocent people who could be being persecuted.  The authors had written that testing could prevent “the grotesque detention of thousands of innocent people.” Justice Kennedy apparently did not want to endorse that the criminal justice system could easily have such deep flaws.

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…”

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.”  Mr. Scheck noted that there have been rare times when people have been exonerated through the solving of cold 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.

The scariest implications of the new DNA ruling is that, as experts agree, we are migrating toward everyone giving mandatory DNA samples to the government.  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.”

How will this Supreme Court decision affect overworked labs and contaminated samples?  DNA testing can exonerate people when DNA is present at the crime scene, but DNA is only present in about 5% of all cases.  DNA testing can also send innocent people to prison when labs mishandle samples.

Essentially, as is pretty obvious in the hate-dripping guilty until proven innocent migration of social media and the media industry as a whole, we are moving toward a system that more outwardly believes this horrid principle.  Our justice system has always had hints of a presumption of guilt despite the logical and moral reasons for having a presumption of innocence.

“The proof lies upon him who affirms, not upon him who denies; since, by the nature of things, he who denies a fact cannot produce any proof”, the logical conclusion made in Black’s Law Dictionary.

The government should not be allowed to treat the accused like they are already guilty, but courts have allowed them over the years, including this latest ruling.  I personally believe this has contributed to wrongful convictions by contributing to the creation of a culture where police and prosecutors are never wrong.  This false reality has certainly done damage to many people’s lives.  Now, not only is the government reading our emails and checking up on who we are calling (as noted in the NSA Surveillance Scandal), the government can now take DNA from arrestees merely because they are in custody, no warrant needed and no trial needed.  People who have been arrested by the government are no different than you or I minus a simple accusation that can be made unproven against anyone.  When will this end?  Where will this all take us?

Now more than ever we need more people standing up for the rights of each and everyone of us.  We have our rights today, but that doesn’t mean we will tomorrow.  It only takes people not paying attention to their civic duties for politicians or authority figures to scribble a new law that creates a loophole in our rights.  We are free people today, but we are the only ones who can ensure that stays with us.  Rights should be preserved and fought for not only on the battlefield, but in our schools, courts, on the Internet, and in the media.  Over 200 years ago, our founding generation knew that we all had the human right of being secure in our person, of having privacy.

The question is, 200 years from now, will our descendants have more or less rights than we do?

Everyone wants the people who have committed crimes to be appropriately punished, but how far will we go and will it even work?  Or will we suffer unintended consequences to the innocent due to the tunnel vision of getting criminals? Unfortunately, we have seen signs of the latter  already.  History tells us that the innocent have been persecuted for crimes they did not commit since the dawn of mankind.  Even technology has not stopped it.  In fact, flawed forensics has helped put innocent people in prison or vilify them in a public shaming.  How much of your innocence are you willing to give up for what you think may bring you more safety?  How much of your children’s?  What will more restrictive laws really do?

I guess the bottom line is, do you think the government deserves to have your DNA and what will they do with it?

  1. Lon Spector says:

    Speaking of surveillance, boy can I recite some stories. I used to get into some quite animated discussions with gas station attendants in the months prior to September 11, 2001. I told them “Something was in the offing.” There was a popular scratch-off lottery game called “Set For Life.” I told them, With what is shortly to occur people should get “Set For Death!” All during the lead up to Sept. 11, I told these men (Who were all Pakistani) that a horrific event was going to occur in N.Y.C. I didn’t lay out the precise details because I was unaware of them. Planes in buildings? Who’d think of that? But I knew SOMETHING was up.
    The day after the attack one of them asked, “Did you know who carried out these attacks?” The entire notion was laughable. My ancestry wouldn’t allow me to get within 10 feet of people who would do such things. Did they think I was an Israeli “art student?” In any event, in the aftermath of the attacks, I noticed that odd things began to occur.
    A “telephone crew” worked on the pole directly out side my house. I didn’t own a computer at the time-my brother did-I payed him a visit and discovered a strange man working on his
    computer. I asked what it was about and was told it was a “free upgrade.” It seemed that I was being followed by low-flying helicopters. I mean REALLY low flying.
    I’d walk into a 7/11 and one would fly scarcely above the roof top of the entrance. My letters never arrived at their destinations; and sometimes the personal contents and
    expressions of the letters were revealed in unlikely places. I was an avid fan of talk radio at the time. I swear that a “mock-caller” to the program quoted in a verbatim manner an unusual quote from a letter a wrote (And must have been intercepted) that was totally out character for the programming content of the show that day. I was quite
    rattled. The show host said, “Better hang up on that guy.” This method of psychological attack, (Known as Gaslighting-Watch out Big Brother is watching
    you.) has been used at various times against me. And the cupe de grais was a few weeks ago immediately after the Boston Marathon bombings, when a helicopter made low-flying
    circles over my house dozens of times. (I was in my yard raking leaves at the time.) Now that I do own a computer and it is run on the Verizon network (As is my telephone service.)
    “Big Brother” undoubtedly privy to every thing I say. Also, the only thing I can really do is post. I can’t send out E-mails, and rarely receive them. It’s like a tight vice is being put around me. But if they really “had” anything on me, they would have moved after all these years. I just had the misfortune of being unusually clairvoyant.


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