Monthly Archives: July 2012

Supreme Court to Review DNA Swabbing on Arrest??

According to the SCOTUS blog,

Chief Justice John G. Roberts, Jr., calling tests of the DNA of individuals arrested by police ‘a valuable tool for investigating unsolved crimes,’ on Monday cleared the way for the state of Maryland to continue that practice until the Supreme Court can act on a challenge to its constitutionality. The Chief Justice’s four-page opinion is here. A Maryland state court ruling against the practice will remain on hold until the Justices take final action.

One should not read these words as stating that the stay is in effect until the Justices decide whether Maryland constitutionally can take DNA from mere arrestees. That would require two further actions by the Court–“granting cert” and extending the stay while the Court decides the case–both unusual events. The Court receives over 8,000 petitions per year asking it to issue writs of certiorari–orders for lower courts to send the record to the Supreme Court for its review. The court grants on the order of 100 of them. It takes only four votes to grant a petition. (It used to require five.) Justice Scalia once called wading through piles of petitions and supporting materials “the most … onerous and … uninteresting part of the job.” [1]

Thus far, the Chief Justice has issued a order (on his authority as a Circuit Justice) temporarily blocking (“staying”) the judgment of the Maryland Court of Appeals. The Court of Appeals judgment did not order the state to do anything (although its import hardly could be ignored). It reversed the decision of the state’s intermediate appellate court (that had upheld the constitutionality of Maryland’s DNA-on-arrest law) and remanded the case to that lower court for further proceedings. (I described some notable features of the original Maryland Court of Appeals opinion on April 26. [2])

The Chief Justice’s order remains in effect only until the other Justices of the Supreme Court get around to voting on Maryland’s petition for a writ of certiorarari. At that point, one of three things will happen: either (1) the Justices will grant the petition and decide to continue the freeze on the Maryland judgment while the Court reviews the case; (2) the Justices will grant the petition and let the stay elapse while they hear the case; or (3) they will deny the petition and leave the judgment of Maryland’s highest court undisturbed. [3]

Thus, the Court’s “final action” might be merely to decide not to act on the merits of the challenge to the constitutionality of the Maryland law. Denying cert has no precedential value. But the Chief Justice’s July 30 opinion predicts that the Court actually will review the case and issue an opinion that will uphold the constitutionality of the law. Because of the contentiousness of the constitutional question, the brief opinion is worth dissecting

The Chief Justice begins with the observation that “there is a reasonable probability this Court will grant certiorari.” He ought to know, but the reason he gives is not entirely convincing. He writes that:

Maryland’s decision conflicts with decisions of the U. S. Courts of Appeals for the Third and Ninth Circuits as well as the Virginia Supreme Court, which have upheld statutes similar to Maryland’s DNA Collection Act. … The split implicates an important feature of day-to-day law enforcement practice in approximately half the States and the Federal Government. … Indeed, the decision below has direct effects beyond Maryland: Because the DNA samples Maryland collects may otherwise be eligible for the FBI’s national DNA database, the decision renders the database less effective for other States and the Federal Government.

But this “split” is not like a split in the federal circuits on the constitutionality of the federal database law. That kind of split would throw a real monkey wrench into the operation of NDIS, the FBI’s National DNA Index System. The split here only affects timing and a fraction of all DNA profiles. That is, for those individuals who are convicted anyway, not taking DNA on arrest in Maryland only delays the time at which their profiles go into the database. Once the offender profiles are entered, a weekly database trawl should link them to any profiles in the database of crime-scene samples. Of course, this delay is not without costs. For example, some arrestees will commit other crimes, up to and including murder, in the period between arrest and conviction.

With respect to arrestees who never are convicted of offenses that trigger inclusion in the database, the state loses the opportunity to trawl the crime-scene database for their DNA profiles. Some of these individuals might be connected to these unsolved crimes, but many will not be. Thus, the split does not shut down the database system. It does reduce its efficiency by an amount that is not clearly known. As the Chief Justice puts it, “the decision renders the database less effective.”

Chief Justice Roberts also writes that “the decision below subjects Maryland to ongoing irreparable harm” because “[A]ny time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.” The latter quotation comes from the previous Chief Justice, who expressed this claim in New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U. S. 1345, 1351 (1977) (REHNQUIST, J., in chambers). But the notion that every court order that blocks enforcement of a duly enacted law in a state works an irreparable injury seems extravagant. Does the public suffer irreparable harm when someone on a Fort Lauderdale beach plays frisbee, flies a kite, attaches a hammock to a tree, or swims in long pants–all prohibited?

The more meaningful argument is that the Maryland ruling constitutes “an ongoing and concrete harm to Maryland’s law enforcement and public safety interests.” The Chief Justice explains: “According to Maryland, from 2009–the year Maryland began collecting samples from arrestees–to 2011, ‘matches from arrestee swabs [from Maryland] have resulted in 58 criminal prosecutions.'” But this statistic is wide of the mark. How many of these 58 prosecutions would the state have foregone had it been unable to enter the profiles at the point of the arrest rather than waiting until a conviction ensured?

The Chief Justice is correct in stating that “in the absence of a stay, Maryland would be disabled from employing a valuable law enforcement tool for several months,” but his opinion leaves unresolved the question of just how valuable it really is. This is a matter that surely will receive more attention if and when the full Court actually hears the case.


1. CSPAN, Justices in Their Own Words: Granting Certiorari,

2. David H. Kaye, Maryland’s Highest Court’s Opinion on Arrestee DNA Is an Outlier, Forensic Science, Statistics, and the Law, Apr. 26, 2012,

3. H. Greely, The Supreme Court and Mandatory Collection of DNA from Arrestees — Stay Tuned!,

Cross-posted to the Forensic Science, Statistics, and the Law Blog.

CODIS Loci Not Ready for Disease Prediction After All?

Last month, I noted the findings of a superior court in Vermont that “some of the CODIS loci have associations with identifiable serious medical conditions,” making the scientific evidence “sufficient to overcome the previously held belief[s]” about the innocuous nature of the CODIS loci [1]. The judge based her conclusion in State v. Abernathy [2] that the CODIS loci now permit “probabilistic predictions of disease” on the unpublished views of biologist Greg Wray, who oversees the Center for Evolutionary Genomics and the DNA Sequencing Core Facility, within Duke University’s Institute for Genome Sciences and Policy.

A technical report accepted for publication in the Journal of Forensic Sciences seems to dispute these claims. Sara Katsanis, a staff researcher at Duke’s same Institute for Genome Sciences and Policy, and Jennifer Wagner, a postdoc at the University of Pennsylvania’s Center for the Integration of Genetic Healthcare Technologies, searched the biomedical literature and genomic databases not only for associations with phenotypes in the current 13 loci used in offender databases, but also in ones that soon may be added to the system. They came up with “no evidence” that any particular CODIS single-locus STR genotypes “are indicative of phenotype.”


1. CODIS Loci Ready for Disease Prediction, Vermont Court Says, June 15, 2012.
2. State v. Abernathy, No. 3599-9-11 (Vt. Super. Ct. June 1, 2012).

Cross-posted to Forensic Science, Statistics, and Law Blog

Have DNA Databases Produced False Convictions?

About a year ago, I asked whether any false convictions have resulted from DNA database searches. [1] Of course, if there are any, they might be hard to find, but there is a known recent case of a false initial accusation. It came about because a laboratory contaminated a crime-scene sample with DNA from an whose DNA was on file from other cases.

In March 2012, a private firm in England re-used a “plastic tray[] as part of the robotic DNA extraction process.” [2] The tray, which should have been disposed of, apparently contained some DNA from Adam Scott, a young man from Exeter, in Devon. [3] This DNA contaminated the sample from the clothing of a woman who had been raped in a park in Manchester.  Police charged Scott, who claimed he had never been to Manchester, with the rape. After detectives realized that Scott “was in prison 300 miles away, awaiting trial on other unrelated offences” at the time of the rape, the charges were dropped. [3] An audit and investigation of 26,000 other samples analyzed after the robotic system had been introduced, uncovered no other instances of contamination. Steps intended to prevent a repetition of the error have been implemented. [3]

Other errors in handling samples have been documented. In a 2001 Las Vegas case, police obtained DNA samples from two young suspects, Dwayne Jackson and his cousin, Howard Grissom. A technician put Jackson’s sample in a vial marked as Grissom’s, and vice versa. A falsely accused Jackson then pleaded guilty and was imprisoned for four years. The error came to light in 2010, after Grissom was convicted of robbing and stabbing a woman in Southern California. California officials took Grissom’s DNA and entered the profile into the national database, leading to a match to the crime-scene DNA from the 2001 burglary for which Jackson had been falsely convicted. [4]

Of course, this is not a case of a DNA database hit producing a conviction or even a false accusation. Quite the contrary, it is a case of a DNA database producing an exoneration that would not have occurred otherwise. But both cases vividly illustrate the need to implement quality control systems that reduce the chance of handling and other error and to avoid over-reliance on cold hits.

Addendum of July 10, 2012: If anyone has trouble posting comments, please email me. Jeremy Gans ran into problems trying to post an excellent and informative comment that I am posting on his behalf.


1. David H. Kaye, Genetic Justice: Potential and Real, The Double Helix Law Blog, June 5, 2011.

2. BBC News, DNA Blunder: Man Accused of Rape After Human Error, Mar. 21, 2012.

3. Simon Israel, DNA Contamination Blamed on Human Error, Channel 4 News, May 9, 2012,.

4. Lawrence Mower & Doug McMurdo, Las Vegas Police Reveal DNA Error Put Wrong Man in Prison, Las Vegas Rev..-J., July 8, 2011.


According to Wikipedia, “MDNA may refer to

Mitochondrial DNA (mDNA or mtDNA), the DNA located in organelles called mitochondria MDNA (album), a 2012 album by Madonna
MDNA Tour, 2012 concert tour by Madonna”

Additional research reveals an unexpected relationship between the first and third expansions of the acronym. If Madonna has anything to say about it, her fans seeking unusual souvenirs will have neither mDNA nor any other DNA from the aging pop star on the MDNA tour. She has a “sterilization team” to extirpate any DNA in her dressing room after shows. In fact, the team is concerned with much more than DNA. They remodel the dressing room to include “fake ceilings and fake walls, so they can ensure that no one has hidden a camera somewhere.” [1] No “genetic exceptionalism” here.

I have heard that the Secret Service collects the plates, silverware, and drinking glasses or cups the President uses when he is on tour.

How about the rest of us? Do we have a reasonable expectation that police will not collect our shed DNA? No court has held that the investigative technique is a search within the meaning of the Fourth Amendment.


1. Bang Showbiz, Madonna Has DNA Cleaning Team for Tour, Winnipeg Free Press, June 22, 2012