By: Danny Jacobs
Kannon K. Shanmugam, Alonzo Jay King Jr.’s lawyer, was reviewing the amicus briefs filed to the Supreme Court in support of Maryland’s DNA collection law when he started counting. Forty-nine states had filed briefs.
Shanmugam was encouraged.
“Someone held out!” he recalled to laughter during a panel session at the Maryland State Bar Association’s Annual Meeting. “Then I realized it was Maryland.”
Shanmugam was gracious in defeat Thursday as he provided the lawyers and judges in Ocean City with his perspective on Maryland v. King, which reinstated the state law permitting police to collect DNA samples from people arrested on charges of committing or attempting to commit a violent crime.
“I think this is a case we will look back on in 10 or 15 years and say, That was the case from this term that had the largest impact,” said Shanmugam, a partner at Williams & Connolly LLP in Washington.
As Shanmugam was doing research for his case, he discovered the Supreme Court had never decided on the constitutionality of fingerprinting, let alone DNA testing. (He also found that since the Maryland law’s adoption, there were 20 cases where a suspect was arrested and not convicted but DNA led to the prosecution of another crime.)
Both sides agreed there was a search in the case: Shanmugam’s strategy was to argue to that DNA is different from a fingerprint when it comes to a search.
“DNA testing is not used for identification, it’s simply to show that someone committed a crime,” he said, an argument championed by Justice Antonin Scalia in his dissent.
Shanmugam called the oral argument “fascinating.”
“It felt like one of those relatively few cases where the decision is in doubt during the argument,” he said.
(Also in attendance at oral arguments and Thursday’s panel were Court of Appeals Judges Glenn T. Harrell Jr. and Mary Ellen Barbera, with the latter introducing herself to Shanmugam after the discussion ended.)
The majority, Shanmugam said, placed weight on the fact King had been arrested previously, meaning King had “lost some some expectation of privacy.”
The narrowness of the reasoning was deliberate, Shanmugam added.
“The court is mindful of the fact one of the major issues it will deal with [in the future] is the Fourth Amendment and emerging technologies, particularly used by law enforcement,” he said.
That’s why Justice Samuel A. Alito called the Maryland v. King “one of the most important criminal procedure cases in the last 10 years,” Shanmugam said.
“I’m now the guy who lost the most important criminal procedure case in the last 10 years,” he added with a smile.