By COLLEEN JASKOT
WASHINGTON—At least three issues before the Supreme Court this term could have an impact on Maryland law.
The first, Fisher v. University of Texas, heard on Oct. 10, challenges the constitutionality of race-based admissions to universities, and its outcome could affect diversity on Maryland campuses. The second, Maryland v. King, could change state DNA collection laws for those who have been arrested. And the last, Argueta v. United States, looks at how witnesses testified at a gang trial.
Of the three, Maryland v. King, would have the most direct impact on the state. It calls into question the conviction of a man who was arrested for assault, but ultimately convicted for a rape committed years earlier, based on DNA matches.
In Maryland v. King, Maryland's attorney general has asked the Supreme Court to review an April decision by Maryland's highest court that threw out part of the Maryland DNA Collection Act. The act allows DNA to be collected from people who are only suspected of a violent crime at their arrest, rather than those convicted of a crime. Now both parties in the case are waiting for the court to decide whether it will hear the case.
In 2009, Alonzo Jay King was arrested and charged with first- and second-degree assault, and his DNA was collected in accordance with the Maryland DNA Collection Act. When his DNA was put in a database, it matched DNA collected from a 2003 rape case, and King was ultimately convicted for this rape.
He appealed this conviction on the grounds that the collection of his DNA violated the Fourth Amendment, which guards against unreasonable searches and seizures, and the Maryland Court of Appeals overturned his conviction. The court cited a greater expectation of privacy for someone who has been arrested—not convicted—of a crime, because there is a presumption of innocence until someone is proven guilty, and DNA contains a lot of private, genetic information about a person that could be misused.
The attorneys for King are not commenting on the case at this time.
If the court grants review, the case will be heard in the Supreme Court, but not until January at the earliest.
“We’re very optimistic that if we get this case to the Supreme Court, the Court of Appeals ruling will be overturned,” said Maryland Attorney General Douglas F. Gansler.
In a brief to the Supreme Court, the Maryland Chiefs of Police Association, Maryland Sheriffs' Association and Police Chiefs' Association of Prince George's County argue that DNA collection helps law enforcement solve cases more quickly, brings closure to cases for victims, allows for correct identification of offenders and can exonerate the innocent.
“It is so very important in determining the identity in a race-neutral, gender-neutral, socio-economic neutral way,” Gansler said. "You know exactly whose DNA is left at the scene of the crime and whose isn't, so then they are no longer a suspect."
However, Brandon L. Garrett, a professor at the University of Virginia School of Law who does research on DNA exoneration, argues that there is a "racial component" to arrest in the United States, so DNA databases may not accurately reflect the population.
Garrett agrees that this DNA technology has been useful in some cases, but said the bigger these DNA databases get, the greater the chance of error in matches.
"There's a real question about privacy," Garrett said. "There's also a concern that innocent people can have their DNA in these databases, particularly if it's someone who was arrested but cleared of a crime."
Maryland law requires DNA samples from people who are ultimately not convicted to be destroyed or expunged, except in certain circumstances.
If there are people cleared of crimes whose DNA does still remain in the database, it could result in partial matches to affect not only them, but family members as well, Garrett said.
Delegate Sam Arora, D-Montgomery, one of the 19 Maryland delegates who signed onto a brief in support of this act, said that DNA collection is important to help keep offenders in jail and is no more invasive than fingerprinting, which is normally done at the time of an arrest.
DNA "fingerprinting" involves swabbing the inside of the subject's mouth and sending the swab to a lab to extract the DNA from the cells there, cut it apart and subject it to a separation process called electrophoresis that allows a unique DNA pattern to emerge.
"I think it's minimally invasive," said Aurora. "It's essentially the same as rolling someone's finger onto paper."
When a person is arrested, he or she can be handcuffed, searched and subjected to numerous other acts, but collecting DNA is “far less intrusive than any of those procedures,” Gansler said.
DNA contains more information than merely a unique identifier. It contains private information, like medical conditions and other personal characteristics that could be misused, which was the basis of the Court of Appeals' opinion.
According to Maryland law, DNA collected can only analyzed in a way that will allow it to show the identity, but not any other personal traits of a person.
Originally, Maryland law allowed for DNA collection only from convicted sex offenders, but in January 2009, it expanded to those arrested and charged with violent crimes or burglary.
Since 2009, there have been 71 arrests made from the collection of more than 200 DNA samples, according to the Governor's Office of Crime Control & Prevention.
Those 71 cases could be called into question if the judgment of the lower court stands, Arora said.
"The Supreme Court is definitely going to take a case that tests this question at some point, but I think it's important to use the Maryland case," Arora said, "because there's so much at stake in our state right now."
In a brief to the Supreme Court filed Friday, King's lawyers argue the court "should await further legal and scientific developments" before hearing a case about DNA collection laws, because DNA technology and how it is viewed legally is still changing.
"There's been so many state and federal efforts to extend these databases, it would be a big deal if the court decided to limit the scope," professor Garrett said.
Other technology, like fingerprinting and ballistics, can also be improved upon to be used effectively, and the improvements of those have "far greater benefits" than DNA collection, Garrett said.
In July, Chief Justice John Roberts ruled DNA testing could continue until the Supreme Court can rule on the case, writing in his opinion that there is "reasonable probability" the court will hear the case and a "fair prospect" it will reject the lower court's decision.
Meanwhile, Maryland officials await a ruling in Fisher v. University of Texas, which may not be announced until June.
Maryland House and Senate members joined other Congress members who filed briefs urging the court to uphold decisions that support race-based admission.
Susan Sullam, a spokeswoman for Maryland Sen. Ben Cardin, wrote in an e-mail that the senator believes if those previous decisions are overturned, "it could have an adverse impact on diversity in Maryland colleges and universities."
"Many colleges and universities in the country have admissions systems structured so they achieve a diverse student body," said Brigida Benitez, a lawyer who filed a brief for this case for a party supporting affirmative action.
Maryland universities could certainly be impacted, depending on the court's decision, she said.
This case may be of particular interest to Maryland, because in 1994, in Podberesky v. Kirwan, the U.S. Court of Appeals ruled that the University of Maryland Banneker scholarship was unconstitutional because it was only for African-Americans. However, the Supreme Court ruled in the 2003 Grutter v. Bollinger case that race can be used as an admissions factor.
Another case related to Maryland is Argueta v. United States. Antonio Argueta was convicted of conspiracy, racketeering and murder related to his participation in the MS-13 gang in Langley Park. Argueta is asking the court to review his case, saying the Sixth Amendment, which involves the rights of the accused in trials, was violated in his case when the court allowed witnesses, who were scared for their safety, to testify under pseudonyms.
He also said the government violated his witnesses' spiritual rights by questioning his participation in a Buddhist meditation. The U.S. Court of Appeals upheld the ruling of the District Court, but the case is scheduled to be reviewed by the Supreme Court on Oct. 26.