The Supreme Court is hearing a high-profile test case of Maryland’s DNA collection law next week, but neither Attorney General Douglas F. Gansler nor Public Defender Paul B. DeWolfe will be arguing it.
Gansler, who has argued one case before the justices and won, has assigned his chief deputy, Katherine Winfree, to argue this one. DeWolfe, a veteran public defender, turned to an experienced appellate attorney who agreed to take the case pro bono.
“I’m a trial lawyer and not an appellate litigator,” DeWolfe said Monday. “It’s not about the attorneys; it’s about the clients. It’s important that we have an experienced appellate litigator handle such an important case.”
Kannon K. Shanmugam — of the high-powered Washington criminal defense firm Williams & Connolly LLP — will urge the justices on Feb. 26 to uphold an April decision of Maryland’s highest court, which found the state’s DNA Collection Act unconstitutional as applied in almost all situations.
A former assistant U.S. solicitor general, Shanmugam has argued a dozen cases before the justices. He will be facing off against Winfree in what will be her first Supreme Court argument.
“It would be crazy if I said I wasn’t nervous,” Winfree said Monday. “It may be a once-in-a-lifetime experience. It is thrilling.”
Winfree said she has spent countless hours reviewing the relevant case law, reading the 24 amicus briefs that have been filed in the case, participating in moot-court sessions and listening to recent Supreme Court arguments “to get a flavor of the court” as part of her preparation.
She said she looks forward to responding to the justices’ “intellectually very challenging questions.”
“As you move through your career, it kind of becomes a bucket-list thing to do for a lawyer and a litigator,” Winfree said of arguing before the high court.
Winfree will share her half-hour in the court with a member of the U.S. Solicitor General’s office, whose request to participate in the argument was granted Friday by the Supreme Court.
Winfree and Deputy U.S. Solicitor General Michael R. Dreeben will each seek to overturn the Maryland Court of Appeals’ decision, which found the warrantless collection of DNA passed muster only when it is the only way police can identify the person they arrested.
Other uses — such as putting the sample in a database to help solve additional crimes — require a warrant, the Court of Appeals held.
Shanmugam, who represents the respondent, Alonzo Jay King Jr., will have 30 minutes to argue in support of the April decision. He appears to have the more difficult argument in light of U.S. Chief Justice John G. Roberts Jr.’s order last July, which put the Court of Appeals’ decision on hold.
In his order, Roberts said there was a “fair prospect” that the Supreme Court will overturn the ruling and uphold the constitutionality of the DNA collection.
Shanmugam declined, via email, to comment on Monday.
The Supreme Court is expected to render a decision in the case, the case, Maryland v. King, No. 12-207, by the end of its term this summer.
The Court of Appeals, in its ruling, overturned a rape conviction and life sentence of King, whose DNA sample — taken after his arrest for an unrelated crime 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.
Gansler appealed the decision to the U.S. Supreme Court, which stayed the decision in July and agreed in November to hear the case.
As for the 2009 charge, King was found guilty of misdemeanor second-degree assault and sentenced to four years in prison with all but one year suspended.
Gansler won his one argument before the justices, as the high court ruled 9-0 in February 2010 that Hagerstown detectives did not violate the Miranda rights of suspected and later-convicted child molester Michael Blaine Shatzer Sr. when they questioned him two years and seven months after he invoked his right to counsel.
This article was changed Feb. 21 to show DeWolfe is a veteran public defender, not prosecutor.