Supreme Court rules DNA collection legal for arrestees
by Larry Altman
In a sharply divided ruling pitting privacy rights against law enforcement's ability to solve crimes, the U.S. Supreme Court said Monday that police can continue to take DNA samples from people they arrest without getting a warrant.
The high court's 5-4 decision in Maryland v. King likened DNA collection to taking fingerprints. Twenty-eight states allow for DNA testing, but a Maryland court was the first to rule that it was illegal for police to take Alonzo King's DNA without a judge's approval, saying King had a right to privacy against a warrantless search.
In California, ACLU attorneys were scrambling to determine how the ruling will affect its challenges to DNA collection here. Many Southern California police departments have been collecting DNA from anyone arrested for a felony since 2009 under provisions of Proposition 69, a statewide ballot measure approved in 2004 that initially applied only to those convicted of felonies and arrested for certain violent crimes.
"When they are booked, we take DNA samples," said Steve Whitmore, a spokesman for the Los Angeles County Sheriff's Department. "It is a valuable crime-fighting tool."
Sgt. Robert Watt, a spokesman for the Torrance Police Department, said officers began collecting DNA mouth swabs years ago, halted the practice for several months in 2010 during a federal court challenge, but started again when a 9th Circuit Court of Appeals panel voted 2-1 in 2012 to uphold it.
"We stopped when it was challenged," Watt said. "We were waiting for some legal direction."
The San Bernardino County Sheriff's Department began collecting DNA in January 2005, spokeswoman Jody Miller said. El Monte police Sgt. Roger Cobian said his department started collecting DNA swabs in 2004 and, like Torrance, stopped for about six months in 2011 to await the court ruling.
In writing the majority's decision Monday, Justice Anthony Kennedy said taking DNA is like taking fingerprints.
"When officers make an arrest supported by probable cause to hold for a serious offense and bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee's DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment," Kennedy wrote.
The dissenting opinion, written by Justice Antonin Scalia, said the ruling allowed police too much power: "Make no mistake about it: As an entirely predictable consequence of today's decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason."
American Civil Liberties Union attorney Michael Risher said it is unclear how the Supreme Court's ruling would affect his organization's challenges to California's collection law, which is broader than Maryland's. Maryland's law allows DNA collection from those arrested for serious felonies, but California's allows for any felony, including financial and drug crimes.
Risher argued against the law before the 11-judge 9th Circuit Court of Appeals last August, but the panel decided to wait for the Supreme Court's decision before ruling.
"Taking DNA at the time of arrest is a completely unnecessary invasion of privacy and one that can have serious repercussions," Risher said. "Innocent Americans should not have their genetic blueprints put in a gigantic government database."
ACLU attorneys contend the DNA collection laws undermine the nation's Fourth Amendment, which requires probable cause for searches and arrests.
"It allows police to take the DNA of Americans who have never been convicted of any crime in order to just check if maybe they were involved in some prior crime without any indication they were involved in another crime," said Peter Bibring, an attorney with the ACLU's Southern California office in Los Angeles. "That really eats at the most basic protection of the Fourth Amendment."
ACLU attorneys believe they still have a chance to overturn California's law, or at least scale it back. In Maryland, a DNA sample can be removed from the database if the arrestee is exonerated. In California, it remains in the system.
Kennedy was joined in the majority by Chief Justice John Roberts and Justices Samuel Alito, Clarence Thomas and Stephen Breyer. Scalia was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.
Judge in Colorado shooting case expected to rule on insanity plea
by Keith Coffman
DENVER (Reuters) - A Colorado judge is expected to rule on Tuesday on whether to accept a not guilty by reason of insanity plea from accused theater gunman James Holmes, who faces execution if convicted of killing 12 moviegoers last summer.
Arapahoe County District Judge Carlos Samour Jr. had delayed ruling on the matter until legal issues surrounding the plea were resolved.
Among those issues was a challenge to the state's insanity-defense law by public defenders. They argued that a provision of the statute that requires a defendant mounting an insanity defense to submit to an examination by court-appointed psychiatrists is unconstitutional.
Compelling a defendant to divulge information that could be used against him at trial and at sentencing violates his right against self-incrimination, they argued. But Samour upheld the law last week, setting the stage for Tuesday's hearing.
Holmes could still decide against entering an insanity plea after the judge advises him of its ramifications.
Holmes, 25, is charged with multiple counts of first-degree murder and attempted murder. He is accused of killing 12 moviegoers and wounding dozens more in a gun rampage inside a suburban Denver cinema during a midnight screening of the Batman film "The Dark Knight Rises" last July.
Prosecutors are seeking the death penalty for the former University of Colorado-Denver graduate student if he is convicted.
Public defender Daniel King said in court last month that defense psychiatrists had a complete "diagnosis" on Holmes' mental illness.
Twice since his arrest Holmes has been hospitalized, his lawyers said, once for apparent self-inflicted head injuries and again when he was held in restraints in a psychiatric ward.
At a preliminary hearing in January when he was bound over for trial, investigators testified that Holmes spent months amassing firearms and bombmaking materials in preparation for committing mass murder.
At the same time has was assembling his arsenal, Holmes failed his oral examinations and was told by a university professor that perhaps he was not a good fit for the neuroscience doctoral program, prosecutors said.
Also expected to be decided on at Tuesday's hearing is the issue surrounding a package Holmes sent to a university psychiatrist who treated him that was delivered to a university mailroom two days after the killings.
A notebook included in the package sent to Dr. Lynne Fenton reportedly contained details of the upcoming massacre.
Holmes' lawyers have argued that the package is protected by physician-patient privilege and should not be turned over to prosecutors.
Soldiers wounded in Fort Hood shooting upset suspect can question them
FORT HOOD, Texas – A judge was to decide today whether to delay the Fort Hood shooting suspect's trial three months so he can have more time to prepare.
Maj. Nidal Hasan requested the delay after the judge ruled that he can represent himself. But Col. Tara Osborn, the judge, scolded him Monday, reminding him that he previously said he wouldn't need extra time. Jury selection is still set for Wednesday.
Hasan faces the death penalty or life without parole if convicted of 13 counts of premeditated murder and 32 counts of attempted premeditated murder in the 2009 attack on the Texas Army post.
Some wounded soldiers say they're angry that Hasan will be allowed to approach and question them.
Retired Staff Sgt. Shawn Manning says testifying will be more difficult but he's prepared.