Maryland Attorney General Douglas Gansler has asked the state’s highest court to overturn — or at least temporarily suspend — last week’s ruling that prohibits DNA collection from suspects charged but not yet convicted in violent crimes, saying he plans to challenge the decision with the U.S. Supreme Court if the state judges do not reverse themselves.
Gansler on Tuesday filed a motion asking the Court of Appeals to stay and reconsider its Alonzo Jay King Jr. v. State of Maryland decision, which found that swabbing criminal suspects for DNA samples after they are charged is a violation of the suspects’ constitutional rights. That means the same judges who said investigators violated King’s Fourth Amendment rights in taking his genetic material and comparing it with old crime scene samples must now decide whether to change their minds, or at least put their decision on hold while Gansler prepares to take the case to the U.S. Supreme Court.
“We live in the 21st century. We have DNA evidence,” Gansler said in an interview. “Practically every other court that’s looked at this has upheld it as not violative of the Fourth Amendment.”
King was arrested in Wicomico County in April 2009 on first- and second-degree assault charges. Prosecutors used a DNA swab stemming from that case to connect him to a 2003 rape. He was eventually convicted and sentenced to life in prison for the rape.
But in a 5 to 2 ruling, the Maryland Court of Appeals sent King’s case back to the Wicomico County Circuit Court and threw out the DNA evidence against him, saying investigators violated his Fourth Amendment rights.
“Solving cold cases is a legitimate government interest, a warrantless, suspicionless search can not be upheld by a ‘generalized interest’ in solving crimes,” the court found.
Police chiefs and prosecutors had widely criticized the ruling when it was issued last week, saying it would hamper detectives’ ability to solve cold cases, and it could jeopardize the convictions of 34 robbers, burglars and rapists whose genetic samples were taken after they were charged in separate cases. State authorities and officials in Prince George’s, Montgomery and Baltimore counties said they planned to stop collecting DNA from charged suspects while they awaited further court action, and they would evaluate individually cases that stemmed from DNA in the so-called charged offender database.
Gansler said he has advised police chiefs to continue abiding by the Court of Appeals decision unless a stay is issued. He said the motion to reconsider at the state level is largely a procedural step because he cannot challenge the case with the Supreme Court until he has done so at the lower level.
If the state judges stay their decision, though, Gansler said that police could collect DNA while he prepares a Supreme Court challenge. And if the judges’ decline to do so, Gansler said that he will ask the Supreme Court to stay the decision while he fights to have it overturned.
Gansler said he has 90 days to file a writ with the Supreme Court challenging the decision. He said that he thinks the Court of Appeals will make a decision by mid-May.
In his motion, Gansler argues that the Court of Appeals decision runs counter to what other courts have held nationwide on the same issue, and it deprives Maryland authorities of a “valuable tool.” The motion also urges the state judges not to forget that DNA help prosecutors win a conviction against King in a “heinous crime against a real, life-and-blood victim, where the identity of the perpetrator and his actual guilt are not in genuine dispute.”
At the heart of the debate is Maryland legislation, which, starting in 2009, allowed police to collect DNA from suspects after they were charged with violent crimes or burglaries. The DNA bill was a leading priority for Governor Martin O’Malley during the 2008 legislative session, helping him to bolster the tough-on-crime credentials he earned during his days as Baltimore’s mayor. Before then, police had been able to collect DNA only from convicted criminals.
Gansler said in an interview that the DNA swab is no more invasive than a fingerprint or a body search -- both of which police are allowed to conduct on suspects when they are arrested.
“In my view, the only invasion of privacy in this case was when the defendant broke into the home of a 53-year-old woman and raped her at gunpoint,” Gansler said.
Since 2009, the DNA database of charged — but not convicted — offenders has produced 190 hits, resulting in 65 arrests and 34 convictions for burglaries, rapes and robberies, according to data provided by the governor’s office. Twenty cases are still considered active investigations, and 12 cases are making their way through the court system, according to the data.
The governor’s office has said 26 states have laws similar to Maryland’s. In Virginia, law enforcement officials take DNA samples after arrest in violent felonies and burglaries, and in the District, officials take samples after conviction, authorities have said.