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Gansler asks Maryland high court to overturn or suspend DNA swab ruling

Maryland Attorney General Douglas F. Gansler asked the state’s highest court to overturn — or at least 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.

On Tuesday, Gansler (D) filed a motion asking the Court of Appeals to 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 their 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 decide whether to change their minds.

“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 assault charges. Prosecutors used a DNA swab stemming from that case to connect him to a 2003 rape. He was convicted and sentenced to life in prison for the rape.

In a 5 to 2 ruling, the Maryland Court of Appeals sent King’s rape case back to the circuit court and threw out the DNA evidence.

Police chiefs and prosecutors criticized the ruling, saying it would hamper their ability to solve cold cases and could jeopardize the convictions of 34 robbers, burglars and rapists whose genetic samples were taken after they were charged in separate cases.

Stephen Mercer, the chief attorney for the Office of the Maryland Public Defender’s Forensics Division, said those criticisms overstate the usefulness of the database of DNA samples from charged criminals, which has produced dozens of convictions based on thousands of samples.

Law enforcement officials across the state said they planned to stop collecting DNA from charged suspects while they awaited further court action, and they would evaluate cases that stemmed from DNA in the charged offender database.

In his motion, Gansler argues that the Court of Appeals decision runs counter to what other courts nationwide have held. The motion urges judges not to forget that DNA helped win a conviction against King in a “heinous crime against a real, life-and-blood victim.”

Mercer said the emotional plea ignores that investigators are placing presumably innocent people under “genetic surveillance” and using their DNA to investigate them for “past and future crimes” without evidence linking them to those crimes.

“Really what’s at stake here is that informational intrusion,” Mercer said. “If all we’re going to talk about is catching the bad guy and efficiency in law enforcement, then that’s the end of the discussion, because we could be like China, we could be like Russia, we could be like Iran, we could be like any country where the police do not need a reasonable basis to search the person.”

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.

Matt Zapotosky covers the federal district courthouse in Alexandria, where he tries to break news from a windowless office in which he is not allowed to bring his cell phone.



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