Supreme Court will review Md. DNA law

Maryland's DNA law, which allows police to take samples of suspects' genetic material for possible matches to other crimes, will be reviewed by the U.S. Supreme Court next year, the justices announced Friday.

The law, a signature crime-fighting initiative of Gov. Martin O'Malley, was ruled unconstitutional by Maryland's highest court in April. But in July, U.S. Chief Justice John G. Roberts Jr. issued an order allowing police to continue collecting DNA samples, signaling that the high court would ultimately weigh in on the issue that has pitted law enforcement interests against privacy concerns.

On Friday, the Supreme Court announced it would hear Maryland v. King, a case that stems from a previously unsolved 2003 rape case in Salisbury. When a DNA sample was taken from Alonzo Jay King Jr. after an arrest on unrelated assault charges in 2009, it was used to convict him of the earlier crime. Saying the use of King's DNA violated his rights, the Maryland Court of Appeals overturned his conviction in April and sent the case back to trial court.

"We applaud the decision by the Supreme Court to review Maryland's case regarding DNA collection," O'Malley said in a prepared statement. "Allowing law enforcement to collect DNA samples from offenders charged with serious crimes is absolutely critical to our efforts to continue driving down crime in Maryland and bolsters our efforts to resolve open investigations and bring them to a resolution — providing victims long-deserved closure."

The Maryland Public Defender's office, which represented King, has argued that taking suspects' DNA before they are even convicted of crimes and using the samples to link them to previous or future crimes violates their right to privacy and constitutes an unlawful search and seizure.

"People who are presumed to be innocent should not be subject to the warrantless seizure of intensely personal genetic information," Stephen B. Mercer, chief of the Public Defender's Forensics Division, said Friday.

Advocates of the DNA law argue that the measure has helped police solve even cold-case crimes and put away violent criminals.

"We are pleased by [Friday's] decision and look forward to the opportunity to defend this important crime-fighting tool before the nation's highest court," Maryland Attorney General Douglas F. Gansler said in a prepared statement. "With Chief Justice Roberts' stay still in place, Maryland's DNA database remains in operation, helping law enforcement identify and bring to justice violent perpetrators in some of our state's most gruesome unsolved cases."

The law, which went into effect in 2009, expanded the collection of DNA samples from those convicted of crimes to those who have been arrested for violent crime or burglary, even if they were not found guilty. More than half of the states currently collect DNA samples from suspects of violent crime.

Taking DNA is akin to fingerprinting suspects in an attempt to link them to crimes, its supporters have argued.

"There is no reasonable, principled distinction to be made between taking and using fingerprints for identification purposes and taking and using DNA identifiers for identification purposes," Gansler wrote in his petition to the Supreme Court to allow its continued collection.

But opponents contend that taking DNA goes far beyond a fingerprint and into a person's very genetic makeup and that having this very private information stored in a federal or state database leaves open the possibility that it will be used for other purposes.

"There's always potential of abuse, of DNA getting into the wrong hands," Douglas Colbert, a University of Maryland professor of law, said Friday. "It's tempting; if it worked perfectly and we were only going after the bad guys, we'd put aside our objections. But there's nothing in the criminal justice system that works perfectly. There's too much room for human error or potential abuse."

Colbert said that an individual's DNA could be used not just against him or her but relatives as well.

"What law-abiding people don't realize is, if you get my DNA, but law enforcement is interested in my brother, it allows law enforcement to get info about him through my DNA," Colbert said.

Maryland's DNA law took effect in 2009 after a major legislative push by O'Malley overcame the objections of groups such as the ACLU and NAACP, which argued that the database would disproportionately contain genetic information of minorities.

Opponents were heartened this spring when the Maryland Court of Appeals overturned King's conviction on the grounds that his right to protection against unreasonable search was violated. But Maryland successfully petitioned the Supreme Court for a stay against discontinuing the searches while the high court decided whether it would hear the King case.

Roberts noted that the Maryland appeals court decision conflicted with rulings by two federal appellate courts as well as the Virginia Supreme Court.

"Collecting DNA from individuals arrested for violent felonies provides a valuable tool for investigating unsolved crimes and thereby helping to remove violent offenders from the general population," Roberts wrote in granting the stay. "Crimes for which DNA evidence is implicated tend to be serious, and serious crimes cause serious injuries. That Maryland may not employ a duly enacted statute to help prevent these injuries constitutes irreparable harm."

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