Please ensure Javascript is enabled for purposes of website accessibility

Gansler: Preserve Roberts’ ruling in DNA case

Maryland’s chief legal officer and its chief public defender are awaiting word from the U.S. Supreme Court on whether it will keep allowing the state’s police to collect DNA samples from people arrested for violent crimes, despite a Maryland high court ruling that bars the collections except when absolutely necessary to identify the arrestee.

Attorney General Douglas F. Gansler tells the Supreme Court that a stay ‘is necessary to mitigate the harm stemming from the incorrect decision of the Maryland Court of Appeals.’

In papers filed Wednesday with the Supreme Court, Attorney General Douglas F. Gansler pressed the justices to preserve a stay — that U.S. Chief Justice John G. Roberts Jr. ordered July 18 — of the Maryland Court of Appeals’ ruling that the state’s DNA Collection Act is generally unconstitutional.

That stay, which Gansler had successfully requested, permits police to collect DNA samples of arrestees and thus helps law enforcement solve other crimes the arrestees might have committed, he wrote.

“The fact remains that Maryland has determined (as have 26 other states, and the federal government) that there is a legitimate state interest in using DNA to identify people it has lawfully arrested,” Gansler stated. “A stay is necessary to mitigate the harm stemming from the incorrect decision of the Maryland Court of Appeals.”

Gansler’s request that the justices keep the stay followed Maryland Public Defender Paul B. DeWolfe’s motion last Friday that they lift it. DeWolfe argued that a stay is unwarranted because Gansler had not shown that the Court of Appeals’ April 24 ruling was causing irreparable harm to the ability of police to investigate crimes.

The attorney general’s office waited seven weeks to ask the Supreme Court for a stay after the Court of Appeals’ ruling went into effect, DeWolfe said. Maryland advanced “no reason to explain the delay” and was “short on the specifics of its claimed harm,” he told the justices.

Gansler responded in his Wednesday filing that “it is beyond dispute that the statute at issue in this case has protected public safety and proven itself to be a valuable asset to statewide law enforcement efforts.”

“In addition, as long as the Court of Appeals’ decision remains in effect, other states are hampered in their ability to identify and prosecute criminals due to the repercussions affecting the national DNA databases shared by all states,” which would be deprived of DNA data from Maryland, he added.

Gansler has said he will file a certiorari petition with the Supreme Court, asking the justice to review and overturn the Court of Appeals’ ruling in the case, King v. Maryland.

Law professor William Reynolds said Roberts’ staying of the Court of Appeals’ decision indicates “a substantial likelihood that the cert. petition would be granted” but not necessarily that the ruling would be overturned by the Supreme Court.

In granting the stay, the chief justice balanced the state’s asserted need for the DNA collection in fighting crime against the defense’s asserted right to be free from DNA collections upon arrest, Reynolds said Wednesday.

Roberts concluded that “in the balance of equities, more is lost if you don’t grant the stay,” added Reynolds, the Jacob A. France Professor of Judicial Process at the University of Maryland Francis King Carey School of Law.

Roberts handled Gansler’s request for the stay because he is the Supreme Court justice assigned to handle appeals in the 4th U.S. judicial circuit, of which Maryland is part. The chief justice gave no indication of when or whether he would rule on DeWolfe’s motion to lift the stay.

In the King case, the Court of Appeals said the 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 the DNA sample to investigate additional crimes, require a warrant lest the police violate the arrestee’s Fourth Amendment right against unreasonable searches, the court held.

In its decision, the court overturned a rape conviction and life sentence of Alonzo Jay King Jr. 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.