The Double Helix and the Law of Evidence described the legal saga of twice-convicted Michael Antonio Pizzaro. I thought the case was over, but I was wrong. For the third time, the California Court of Appeal has reversed the trial judge. For the second time, the Court of Appeal has produced a puzzling opinion. For the first time, it has presented a discovery supposedly unknown to forensic geneticists.
This installment of commentary on the case briefly reviews the earlier opinions. Later, I shall explain the state of the science that troubled the court and consider the court’s advice to the scientific community. … continued on the FSSL blog.
Yesterday, Justice Stevens addressed the American Constitution Society. He took the unusual step of stating how he would have voted on the constitutionality of collecting DNA from arrestees and using it, not necessarily as proof of the individual’s true identity, but as an investigative tool to link the arrestee to unrelated crimes. This is, of course, the use that split the Court in this month’s decision in Maryland v. King.
Below I offer a condensed and annotated version of Justice Stevens’ analysis. Although I do not agree with every aspect of his discussion, I think he got it basically right, and I take issue with the surprising hyperbole that already has appeared in The Atlantic. … cont’d on the FSSL Blog
Supreme Court watchers took note of an article by an astute reporter on “an irony” in the fact that Justice Kennedy’s opinion for the Court in Maryland v. King cited Actual Innocence, an important book about DNA exonerations. See A Digression on Ellipses, Actual Innocence, and Dr. Mengele, June 13, 2013.
But one of the book’s authors, Peter Neufeld, was “feeling less than honored” by this nod from the Court:
Part of the problem was what he called an irony. [�] In 2009, Justice Kennedy joined the majority opinion in a 5-to-4 decision that said prisoners had no constitutional right to DNA testing that might prove their innocence. Mr. Neufeld, who founded the Innocence Project with Barry Scheck, represented the prisoner on the losing end of that case, District Attorney’s Office v. Osborne.
But last week, Mr. Neufeld said, Justice Kennedy concluded that “it’s O.K. for the state to take DNA, without a warrant, from mere arrestees, who may ultimately have their charges dismissed.” [�] The combination of the two decisions baffled Mr. Neufeld. “That is quite a worldview,” he said of a jurisprudence that allows nonconsensual testing of people presumed innocent but denies voluntary testing to people who insist that they really are innocent.
Adam Liptak, Cited by a Justice, But Feeling Less Than Honored, N.Y. Times, June 11, 2013, at A15.
This juxtaposition of King and Osborne is “quite a worldview,” but it is not an accurate description of the Court’s jurisprudence on DNA evidence. … continued on the FSSL Blog.
New York Times Supreme Court correspondent Adam Liptak recently tweaked the noses of the justices who upheld the constitutionality of routinely taking DNA from individuals arrested of assault, homicide and burglary. See Cited by a Justice, But Feeling Less Than Honored, N.Y. Times, June 11, 2013, at A15.
The Court’s opinion, penned by Justice Kennedy, enumerated the arguable benefits of routine DNA collection before conviction, concluding with with the observation that “[f]inally, in the interests of justice, the identification of an arrestee as the perpetrator of some heinous crime may have the salutary effect of freeing a person wrongfully imprisoned for the same offense.” To support this conclusion, Justice Kennedy added a quotation from the important and gripping book Actual Innocence: Five Days to Execution and Other Dispatches from the Wrongly Convicted. As quoted in the justice’s opinion, Barry Sheck, Peter Neufeld, and Jim Dwyer, wrote that: “[P]rompt [DNA] testing . . . would speed up apprehension of criminals before they commit additional crimes, and prevent the grotesque detention of . . . innocent people.”
Mr. Liptak noted that this quotation was not “especially punctilious.” One might think that the problem is that the quotation speaks to preventing erroneous convictions, whereas the sentence it is supposed to support is about “freeing a person wrongfully imprisoned.” (Emphasis added.) But Mr. Liptak’s point, which turns out to be related, is that “[t]hose first three dots covered a lot of ground. They took the place of more than six sentences and suggested a different point than the one the authors were making.”
(Continued on the FSSL Blog).
There are lots of criticisms that one can make of the majority opinion in Maryland v. King — and even more that apply to the dissent — but, contrary to one commentator, I do not think that the Court’s reference to the use of anthropometrics as employed in the late 1800s and early 1900s for authenticating the identities of prisoners is particularly problematic. … Find more at http://for-sci-law-now.blogspot.com/2013/06/maryland-v-king-no-3-bertillonage-as.html.
The more I cogitate on the opinions in Maryland v. King, the more I find the dissenting opinion irritating and the majority opinion disappointing. But explaining precisely why is not so easy. Meanwhile, I recommend the following early but penetrating comments on the opinions:
- Hank Greely, Maryland v. King – The Coming California Sequels, Law and Biosciences Blog, June 8, 2013
- —– , The Supreme Court Decision in Maryland v. King, Law and Biosciences Blog, June 3, 2013
- Richard Lempert, Maryland v. King: An Unfortunate Supreme Court Decision on the Collection of DNA Samples, Brookings Up Front, June 6, 2013
The threshold question in Maryland v. King, as in any Fourth Amendment case, is whether a search occurred. For a discussion of the answer under the Supreme Court’s two-track definition and some of the implications of this definition for fingerprints and photographs, see
today’s FSSL blog.
Today the Supreme Court, in a rather staid opinion by Justice Kennedy, joined by Chief Justice Roberts and Justices Breyer and Thomas, upheld the Maryland law that requires individuals arrested and detained for major crimes to submit DNA samples that can be checked against a database of DNA profiles from unsolved crimes. Justice Scalia, wrote a bitter and sarcastic dissent for himself and Justices Ginsburg, Kagan, and Sotomayor.
I think the question is more delicately balanced than either opinion indicates. For more detailed comments, see the Forensic Science, Statistics, and the Law blog.
Maryland v. King, No. 12-207 (U.S. June 3, 2013).
Kaye, David H. 2013. “A Fourth Amendment Theory for Arrestee DNA and Other Biometric Databases.” University of Pennsylvania Journal of Constitutional Law 15(4): 1095-1160.
Recent postings on the FSSL blog (March 27, May 25) about the appeal of Amanda Knox and Raffaele Sollecito suggested that the court’s decision not to order more DNA tests on the kitchen knife was less a manifestation of bad judicial mathematics than a judgment about the possible costs and benefits of additional low template (LT-DNA) testing as perceived by court-appointed experts. As a publication of the Royal Statistical Society noted last year, “Many questions at the extremities of LTDNA technology remain unanswered, and scientific disputes between experts are sometimes ventilated in litigation.” (Puch-Solis et al. 2012, at 85 � 60.20, discussing English Court of Appeal cases in �� 60.21 & 60. 22).
In the United States, appellate courts have yet to address the admission of LT-DNA results. The latest opinion I have seen comes from a trial court in Bronx County, New York. Remarks on People v. Garcia, 39 Misc.3d 482, 963 N.Y.S.2d 517 (N.Y. Sup. Ct. 2013), are on the FSSL blog, May 30.
Puch-Solis, Roberto, Paul Roberts, Susan Pope, and Colin Aitken 2012. Assessing the Probative Value of DNA Evidence: Guidance for Judges, Lawyers, Forensic Scientists and Expert Witnesses. London: Royal Statistical Society.
Fifteen years ago, Louisiana adopted a law mandating that “[a] person who is arrested for a felony sex offense or other specified offense . . . shall have a DNA sample drawn or taken at the same time he is fingerprinted pursuant to the booking procedure.” As of mid-2012, 28 states and the federal government had laws providing for DNA sampling before any conviction is obtained. Most other countries with DNA databases also collect samples on arrest.
These laws have provoked conflicting constitutional opinions. The Supreme Court heard argument in Maryland v. King in February 2013 and is likely to rule on the issue in June 2013. For a scoreboard on the litigation and a list of scholarly commentary to date, see http://for-sci-law-now.blogspot.com/2013/03/the-constitutionality-of-dna-collection.html.