Police around Maryland said Wednesday that they would continue to collect DNA samples when suspects are arrested for violent crimes and burglaries, despite a recent ruling by the state's top court limiting the practice.
Several law enforcement agencies, including the state Department of Public Safety and Correctional Services, were awaiting a decision on whether the state will appeal before they make changes. Gov. Martin O'Malley, Baltimore's mayor and a chorus of state and local officials called for an appeal of what they see as a crucial tool that has linked suspects to other, unsolved crimes.
Opponents of the practice said the decision to continue taking samples shows disregard for the Court of Appeals and the laws the police are sworn to uphold.
Baltimore-based criminal defense lawyer Ivan Bates said he believes any DNA collected following the court's decision will be thrown out in future cases because it was illegally obtained.
"I think the U.S. Supreme Court would rule in a similar fashion," Bates said. "You have to have a warrant, point blank, end of discussion. Before you take my DNA, you have to have a warrant for that as well. You have a lot of innocent people who are constantly being violated."
O'Malley was joined by Baltimore Mayor Stephanie Rawlings-Blake, Police Commissioner Frederick H. Bealefeld III and others in pushing Attorney General Douglas Gansler to file a challenge before the U.S. Supreme Court. Representatives for the attorney general did not return messages seeking comment.
"Based on the facts of the case, [O'Malley] perceives it as something that has a strong basis for appeal," spokeswoman Raquel Guillory said.
In Anne Arundel and Baltimore counties, police officials said they would not change their practices until the state police or Gansler's office told them otherwise; in Howard County and Baltimore City, the samples are collected by the state public safety department, which will continue to do so.
It remained unclear what will happen to the nearly 16,000 samples already collected in a database, although a public defender said suspects whose DNA has been compiled may be able to take court action to get the samples destroyed.
On Tuesday, the court ruled 5-2 that the law, a signature O'Malley initiative that went into effect in 2009, violated a suspect's Fourth Amendment right to be free from unreasonable search and seizure. The ruling did leave open the possibility that police could take DNA samples for the purpose of identifying a suspect at the time of arrest.
The collection of DNA at arrest has been the subject of national debate, because opponents point out that it takes place before a suspect is tried in court. Twenty-six states have laws similar to Maryland's, and many have been upheld in state and federal court.
The Maryland case centered on Alonzo Jay King Jr.'s conviction in a 2003 rape case. He had been found guilty after his DNA was taken following a 2009 arrest on unrelated assault charges. King's sentence to life in prison on the rape conviction was overturned and the case ordered back to the Wicomico County Circuit Court for a new trial.
King, 29, is expected to remain in prison while the state decides whether to appeal.
Celia Anderson Davis, the public defender who represented King in the Court of Appeals case, said her argument relied on constitutionally guaranteed freedoms.
"What happens next is up to the state," Davis said. "In our office, we are all pleased that the court recognized the right to privacy and genetic information. Once genetic privacy is lost, it can never be regained."
She said the case is a long way from being over, given the opportunity for an appeal. Davis said she also believes it is time for the U.S. Supreme Court to take up the issue.
Davis does not believe that prosecutors can make a case against King in a retrial without the DNA evidence.
The assistant state's attorney for Wicomico County, Joel J. Todd, said it was improper for him to comment about the case before it goes to trial.
Davis said she will seek to have King's record expunged if the Court of Appeals opinion stands. She believes other attorneys would seek to have their clients' DNA removed from the database as well.
In the three years that the law has been in effect, the DNA samples, cross-checked against cold case evidence, have led to 65 arrests and 34 convictions, according to data released by the governor's office.
Rawlings-Blake said the Maryland ruling is a step backward for public safety.
"The DNA database is critically important for all public safety agencies, as it not only helps solve crimes of violence, but also eliminates suspects who may have been erroneously accused," the mayor said in a statement. "An effort to appeal to the United States Supreme Court is absolutely the right course of action."
Col. Marcus J. Brown, superintendent of the Maryland State Police, said the case has helped his department take several violent criminals off the streets.
"When courts fail to recognize the need of our people to be protected in a fair and just manner, we go backwards, not forwards," Brown said in a statement. "That is something we cannot afford to do, given our responsibility to protect human life."
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