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Public defender fights stay in DNA case

The Maryland Office of the Public Defender on Friday urged the U.S. Supreme Court to stop allowing police to collect DNA samples from people arrested for violent crimes, contrary to a ruling by the state’s highest court.

Public Defender Paul DeWolfe told the Supreme Court the state ‘is short on the specifics of its claimed harm’ and was using misleading data to exaggerate the impact of the Court of Appeals’ decision.

In papers filed with the justices, Maryland Public Defender Paul B. DeWolfe challenged Attorney General Douglas F. Gansler’s argument that an April ruling by the Maryland Court of Appeals was causing irreparable harm to law enforcement’s ability to investigate crimes.

Gansler’s office waited seven weeks to ask the Supreme Court for a stay, DeWolfe noted.

“The state’s delay in filing its application for a stay directly undercuts the legitimacy of its claim of irreparable harm that is essential to sustain the extraordinary relief of a stay and tends to blunt its claim of urgency and counsels against the grant of a stay,” DeWolfe wrote in his motion to the high court.

“The state advances no reason to explain the delay, is short on the specifics of its claimed harm and provides misleading data about the collection of DNA from arrestees to exaggerate the impact of the decision below,” DeWolfe wrote. “The lower court is in the best position to evaluate the state’s factual allegations and its decision denying the state’s request for a stay is entitled to deference.”

In addition, the state advanced only “generalized concerns” about potential harm to criminal investigations, DeWolfe wrote.

“If concerns of this nature were enough to obtain a stay, this court would grant a stay in every criminal case where the court below ruled in favor of the defendant,” he wrote. “That obviously is not this court’s practice.”

U.S. Chief Justice John G. Roberts Jr. on Wednesday ordered the Court of Appeals’ decision stayed at least until defense attorneys for Alonzo Jay King Jr. — who had successfully challenged the DNA collection in state court — submitted a response explaining why the stay should be lifted.

As of Friday evening, the high court had not ruled on DeWolfe’s request to lift the stay. With the stay in effect, police may continue to collect the DNA samples from arrestees charged with committing or attempting to commit a violent crime.

Gansler had successfully requested the stay of the Court of Appeals’ April 24 ruling in King v. Maryland.

The attorney general said he will be filing a petition with the Supreme Court in the next few weeks requesting that the justices hear the state’s appeal of the King ruling.

Investigatory uses banned

In the King case, the Court of Appeals said the 2008 Maryland DNA Collection Act passes constitutional muster only when collecting a genetic sample is the sole way police can identify the arrestee. Other purposes, such as using a DNA sample to investigate additional crimes, require a warrant lest the police violate the arrestee’s constitutional Fourth Amendment right against unreasonable searches, the court held.

The decision overturned a rape conviction and life sentence of King, whose DNA sample — taken after his arrest for an unrelated assault in 2009 — was linked to the 2003 sexual attack.

The police had confirmed King’s identity in the 2009 assault through photographs and fingerprints and thus “had no legitimate need for a DNA sample in order to be confident who it arrested or to convict him on the first- or second-degree assault charges,” Judge Glenn T. Harrell Jr. wrote for the 5-2 majority.

“We simply will not allow warrantless, suspicionless searches of biological materials without a showing that accurate identification was not possible using ‘traditional’ methods,” Harrell added. “[T]here are conceivable, albeit somewhat unlikely, scenarios where … the state may secure the use of DNA samples, without a warrant under the Act, as a means to identify an arrestee, but not for investigatory purposes, in any event.”

Other courts that have considered the issue have reached different conclusions — as did Judge Mary Ellen Barbera, who dissented from the King decision, saying arrestees have a “significantly diminished expectation of privacy” with regard to police taking a DNA sample from them.

Barbera was joined in dissent by retired Judge Alan M. Wilner, who sat by special assignment.

As for the assault charge, King was found guilty of a misdemeanor count of second-degree assault and sentenced to four years in prison with all but one year suspended.