People v. Pizarro: Round Three Coming Up

In The Double Helix and the Law of Evidence, I wrote about 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 its advice to the scientific community.

I. The First Court of Appeal Opinion: An Old Debate

In 1990, Pizzaro was sentenced to spend the remainder of his life in prison for raping and suffocating his thirteen-year-old half-sister, Amber Dawn Barfield, in 1989. Vaginal swabs revealed semen that matched Pizarro’s VNTRs at three loci. An FBI analyst testified that the probability that a randomly selected “unrelated Hispanic individual [would have] a similar profile as Mr. Pizarro is one in approximately 250,000” and that the probability for Caucasians was one in 10,000,000.

Pizarro appealed, contending that the DNA evidence was inadmissible because the prosecution had failed to demonstrate that the DNA test procedure and the simple multiplications of allele frequencies used to arrive at the 1/250,000 and 1/10,000,000 figures were generally accepted in the scientific community. The court of appeal remanded for a hearing on these matters. People v. Pizarro, 12 Cal.Rptr.2d 436 (Ct. App. 1992). By the time of the rehearing in 1998, the California Supreme Court had resolved these questions in favor of admissibility. Deprived of his original arguments, Pizarro raised “several new issues concerning the reliability and relevance of the DNA evidence presented to the jury” eight years earlier. “The trial court again ruled that the evidence was admissible and reentered the judgment.” Pizarro, 3 Cal.Rptr.3d 21 (Ct. App. 2003).

II. The Second Court of Appeal Opinion: A Legal and Logical Misunderstanding

Pizarro appealed once more. In 2002, the appellate court reversed the conviction due to a variety of perceived defects in the analysis and presentation of the random-match probability. After publishing this opinion, the Court of Appeal decided to rehear the second appeal a second time “to ensure that the complex issues in this case were thoroughly examined and briefed by both parties.” In an opinion in 2003, the appellate court determined that it was improper for the prosecution to have offered an estimate of the frequency of a genotype in the Hispanic and Caucasian population groups. These were chosen because the defendant was said to be half Caucasian and half Hispanic.

The Court of Appeal had a point. The state’s trial presentation was problematic. The frequencies of DNA alleles vary across self-identified racial or ethnic groups. If the perpetrator could have come from any group, looking to only one or two groups for a random-match probability could lead the jury to jump to the conclusion that the perpetrator must have come from those particular groups. The manner of presenting the DNA statistics therefore could be regarded as unfairly prejudicial.

But the Court of Appeal did not stop here. It announced in dictum that the standard practice of giving a range of frequencies for all the major racial or ethnic groups in the United States also would have been unacceptable. According to the court:

[I]n the absence of sufficient evidence of the perpetrator's ethnicity, any particular ethnic frequency is irrelevant. The problem is . . . one of preliminary fact . . . . It does not matter how many Hispanics, Caucasians, Blacks, or Native Americans resemble the perpetrator if the perpetrator is actually Asian. If various ethnic frequencies are presented to the jury, each will have been admitted without adequate foundation.

The Pizarro court insisted that the race of the possible perpetrator was one of those “preliminary facts” that had to rest on “independent proof.”

This might seem strange to scientists who understand the need to evaluate all the plausible alternatives before concluding that a given theory is true. One might think that this also is how jurors should reason before they can find a defendant guilty. But the incongruity between ordinary reasoning and the court's understanding of the rules of evidence did not trouble the court. If the court’s interpretation of the law in Pizarro seemed weird to the DNA experts, it must be because those scientists did not appreciate “the subtle, even unexpected, differences between the scientific and legal approaches to the same problem.”

The odd requirement that the racial identity of the perpetrator be known seems to arise from the court’s recognition that if this fact could be known, some of the statistics would be irrelevant. According to the court, “the jury is not assisted by knowing how many Hispanics possess the perpetrator's traits if the perpetrator is actually Asian.” (Emphasis added).

This last statement is true but unhelpful. To be sure, if the perpetrator is known to have come from a small village in Gansu populated by the Dongxiang, no major U.S. population group’s profile frequency is directly relevant. But what does this fact have to do with a case in which the race of the perpetrator is unknown? In this situation, it remains entirely sensible to consider profile frequencies under all the plausible hypotheses involving major U.S. populations. Contrary to the Pizarro court's assertions, in a general-population case—one in which the investigation cannot be limited to a particular racial group—the statistics for a range of groups are relevant. They assist the jury in understanding the implications of the DNA match. Thus, in an incisive opinion in People v. Wilson, 136 P.3d 864 (Cal. 2006), by Justice Ming Chin, the California Supreme Court recognized the logical difficulties with the dictum in Pizarro.

II. On Retrial: More Powerful DNA Evidence and Juror Misconduct

To prepare for the retrial, the state conducted new DNA tests. One STR locus after another in the DNA from a vaginal swab showed alleles that were not the victim’s. All of these alleles were part of Pizarro’s genotype. “The frequency of the profile was calculated to be approximately one in 3.9 quintillion African–Americans, one in 350 quadrillion Caucasians, and one in 4.2 quadrillion Hispanics.” People v. Pizarro, 216 Cal.App.4th 658 n.28 (Ct. App. 2013).

Pizarro filed a 105-page motion to exclude this damning evidence. He maintained that the analysis of samples containing alleles from more than one individual lacked general acceptance, that STR typing lacked general acceptance, and that the typing and interpretation was done incorrectly. The trial court saw no reason for a hearing on the general-acceptance claims, but it conducted an evidentiary hearing on the last claim. Discerning no major problems with the STR analysis, the court denied Pizarro’s motion. With the DNA (and other) evidence before it, the jury in Michael Pizarro’s third trial returned another verdict finding him guilty of the rape-murder of his half-sister on a June night 19 years earlier.

But this is not the end of the legal story. After the jury was discharged, the parties learned that during the trial a juror had read the second appellate opinion in the case, which revealed that defendant had previously been convicted on all counts by another jury, that he been sentenced to life in prison without the possibility of parole, that VNTR analysis also had incriminated him, and that other case-specific facts not presented on retrial indicated his guilt. The judge found that the juror engaged in “gross misconduct” that was “absolutely outrageous.” Nonetheless, he denied a motion for a new trial. Once more Pizarro appealed.

III. The Third Court of Appeal Opinion

The Court of Appeal reversed because of the juror’s misconduct. It practically ordered the state to prosecute the juror, writing that “a juror who so brazenly disregards and willfully violates the court's admonition not to investigate or consider matters outside the evidence received in the courtroom should be criminally prosecuted. Jurors take an oath to follow the court's instructions.” Id. at n.4.

In addition, the appellate court was unhappy with the introduction of the DNA evidence. Its opinion regarding this evidence is hard to follow. On the one hand, the court wrote that “we uphold the admission of the DNA evidence.” On the other hand, and in the same sentence, it complained that “the widely held belief that allelic dropout cannot cause false results in a criminal case as long as the defendant's and the perpetrator's DNA samples are tested in a consistent manner is based on the improper assumption that the defendant is the perpetrator—in other words, that the defendant is guilty.” In the next sentence, it “determine[d] in this case, however, that any error was harmless.” By the end of the prolix opinion, it “recommend[ed] that the scientific community reexamine the possible effects and management of allelic dropout in criminal cases” and avoid “a very serious falsehood based on the improper assumption that the defendant is guilty.”

Plainly, this recommendation and the underlying understanding of the science of DNA identification bear inspection. Stay tuned for that.

“Disturbing” and “Ridiculous” Expertise in State v. Zimmerman

Spectrographic speaker identification has had a troubled history. The pattern is familiar: early, enthusiastic claims; skepticism from a few eminent “outside” scientists; review in many court hearings; mixed rulings; a skeptical NRC report; more rulings.

The latest ruling, in the closely watched Florida murder case, State v. Zimmerman, extends beyond spectrographic analysis. The court's opinion suggests that the prosecution was not overly scrupulous about its scientific evidence on whose screams are present in a recorded 911 call made from inside a house just before neighborhood watcher George Zimmerman shot teenage Trayvon Martin in the chest.

Newspapers had hired two experts to examine this recording along with one of a non-emergency call that Zimmerman had made to the police. The expert selected by the Washington Post, Alan R. Reich concluded that Martin was yelling, "I'm begging you," and "stop." The expert retained by the Orlando Sentinel, Tom Owen, ruled out Zimmerman as the screamer, in part, after using voice-recognition software. Prosecutors wanted them to testify at the trial. The defense objected that their methodology was incapable of producing these results.

Judge Debra Nelson held a hearing on the motion to exclude the evidence. The prosecution had Reich and Owen testify. It produced no independent experts to vouch for their methods—not a good strategy. The defense produced four experts who found the identifications outside the range of what existing science can accomplish. Given this array of opinions, Judge Nelson excluded the proposed testimony, leaving the prosecution free to identify the screamer and to decipher his words with ordinary methods (such as testimony of Trayvon’s father that he recognizes the voice as his son’s)

The court reached this result under Florida’s version of the general-scientific-acceptance standard announced in the 1923 case of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). One renowned law professor recently insisted that “Under Frye's general acceptance test [a]ll that is necessary is the ability to count. ... Judges do not need to know very much about science; they simply need to be able to count. So judges ask, ‘You epidemiologists, is this method generally accepted? Raise your hand. One, two, three, four. Those who think it's not generally accepted? One, two, three.’” (Faigman 2013). But the general acceptance standard is not this simple. Although some judges may try to apply Frye this mechanically, and although advocates occasionally have produced opinion polls as if they were proof of general acceptance, the test is much richer than this. As the Florida Supreme Court explained in Ramirez v. State, 810 So.2d 836, 844 (Fla. 2001) (footnotes omitted):

When applying the Frye test, a court is not required to accept a "nose count" of experts in the field. Rather, the court may peruse disparate sources—e.g., expert testimony, scientific and legal publications, and judicial opinions—and decide for itself whether the theory in issue has been "sufficiently tested and accepted by the relevant scientific community." In gauging acceptance, the court must look to properties that traditionally inhere in scientific acceptance for the type of methodology or procedure under review—i.e., "indicia" or "hallmarks" of acceptability.

Under this standard, numbers are not decisive. Courts must verify that there has been sufficient testing in the scientific community. Thus, in Zimmerman, the state had to show that scientists generally believe there is a method that permits the kinds of results the newspaper-prosecution experts achieved. It did not come close to this showing.

I. Scientific Methods of Speaker Recognition

After preliminary quotations of generalities from Florida Supreme Court opinions, the trial court observed that

There are currently three employed methods used in forensic speaker identification. The first and most widely used and accepted was referred to during the hearing as critical listening, aural perception, or auditory phonetic analysis. This is the process whereby a trained expert carefully listens to a sample in an effort to detect unique qualities, such as vocal pitch, speech rhythms, and accents that can be heard by the unassisted human ear. The second is spectral or acoustic-phonetic analysis which uses computer software to measure fundamental frequency and energy in the spoken words, the results of which are represented in a graphic format. Finally, there is biometric or Gaussian Mixture Model analysis. This method also uses computer software to compare thousands of variables in spoken words to determine whether they were uttered by the same person.

At this point, the careful reader should be nervous. To begin with, “critical listening” by a “trained expert” to hear “unique qualities”? What studies establish that the qualities are unique and that the trained listeners can detect them and compare them as between two samples of spoken words? The point here is not that “aural perception” is necessarily subjective. People can perform many tasks that require subjective judgment quite well, and training can augment their skills. But if this is what the prosecution's experts are doing, what does science show about the performance of “critical listeners” under similar circumstances?

Second, “spectral analysis”—obtaining waveforms in the frequency domain—can be done reliably and validly, but in general its use to ascertain the identity of particular speakers remains controversial. Here, a substantial body of research exists, but interspeaker versus intraspeaker variability remains an issue. The court’s order does not address this general concern, but (understandably) focuses on the problems with the 911 recording.

Finally, what “variables” in spoken words establish the identity of a speaker? There is no shortage of papers on Gaussian Mixture Models in speaker recognition by machine-learning systems, and the basic principles are well accepted. But how well does the classifying software work with snippets of background noise like that in the 911 tape?

II. Two Experts’ Theories

One expert was Thomas Owen. He is the founder of Owen Forensic Services. (The president is Jennifer Owens, his daughter, and his CV implies that he formerly ran the business as Owl Investigative Services.) The firm “maintains a state of the art facility for the purposes of digital audio enhancement, digital video enhancement, digital audio and video authenticity analysis, voice identification and media/data recovery.” Mr. Owen has no (academic) scientific training and no publications in any journal of science or engineering (unless one counts a 1983 article on “Reproduction of Acoustically Recorded Cylinders and Disks” in the Journal of the Audio Engineering Society, the society being “an international organization that unites audio engineers, creative artists, scientists and students worldwide by promoting advances in audio and disseminating new knowledge and research.”).

The opinion states that Mr. Owen performed a “software-reliant analysis” with “Easy Voice, a software program he markets and in which he has a small financial interest.” Whatever Easy Voice does, it could not do it with the “seven seconds of screams from the 911 call. The seven second sample was rejected [as too short] by the Easy Voice software program. To correct this problem, he ran the seven second sample twice ... .” The Easy Voice website indicates that the program uses some spectrographic data (namely, formants), pitch, and a Gaussian Mixture Model. Using the program with the loopy sample and changing the pitch of a comparison sample, Owen concluded that the screams were not Zimmerman’s and therefore must have been Martin’s.

Furthermore, Owen, "cleaned up" the audio of the Zimmerman's non-emergency call and “[u]sing audio editing software, [determined] that the unintelligible word ... was ‘punks.’”

The Washington Post described its expert, Alan Reich, as “a former University of Washington professor with a doctorate in speech science” and a long history of consulting work. He employed “commonly-used digital enhancement and transcription software” along with “the aural perception and acoustic-phonetic analysis methods.” Those are the court’s words. The Post put it more plainly: “To familiarize himself with Zimmerman’s voice, Reich also listened many times to a recorded call that Zimmerman placed to police minutes earlier ... .” and, “[w]here many people have heard only vague yells on the [911] recording, Reich said that he has found language.”

Not only that, but Reich figured out that the screams were Martin’s. His reasoning, as summarized by the court, was that "the screams ended upon the gunshot being fired, leading to an inference that the person screaming had been shot; and the frequency of the screams indicated that the speaker's vocal tract had not completely developed, leading to a conclusion that the person had not reached adulthood."

II. Disturbing and Ridiculous

The defense assembled four internationally recognized experts. The FBI’s Dr. Hirotaka Nakasone “testified that the processes of aural perception and spectral analysis are commonly used in the field of speaker identification and generally accepted within the field” but that there were “less than three seconds of useable audio” and that “screams are not suitable for comparison with one's normal speaking voice.” He found it “disturbing” that a scientist [would] claim “to make a conclusion about the identity of the person(s) screaming in the 911 call given the current state of scientific technology ... .”

Dr. Peter French, a linguist with a significant publication record and the leader of “J P French Associates ... the United Kingdom's longest established independent forensic laboratory specialising in the analysis of speech, audio and language,” was “the most compelling” witness. He dismissed “the recorded screams in the 911 call [as] unsuitable for any type of forensic analysis.” “[I]f he had received these recordings from law enforcement at the outset of the case, he would have rejected the assignment as it would have been fruitless to undertake the task.”

He agreed with Dr. Nakasone that “there is no basis to compare spoken words to screaming [because] under the type of stress present in this case [screaming] changes the voice in an unpredictable manner and cannot be replicated in laboratory conditions. Moreover, ... [a] forensic expert cannot hear the variables used with aural comparison in screams, including the pronunciation of certain phonemes, accents, speech rate, and pitch variations.”

He rejected the theory that it is possible to “tell the age of a speaker based upon the sound of his voice.” As the court remarked, “Dr. French's opinions cannot be reconciled with those of Dr. Reich.”

Like Dr. French, George Doddington thought the state’s voice identifications were “ridiculous.” Dr. Doddington “works with NIST, the National Institute of Standards and Technology,” where he “formulated a test designed to determine software performance in voice comparison studies. The results ... indicate that software error rates climb substantially as the recorded sample size is reduced from ninety seconds to ten.”

The final blow came from Jim Wayman, an electrical engineer and the director of the National Biometric Test Center at San Jose State University. He “testified that there was less than one second worth of data (50 or 60 milliseconds) available in each of the screams in the 911 call” and that no “software accepted in the scientific community that would produce reliable comparison results ... .” He found Dr. Reich's methodology “confusing” and “baffling.”

III. The Outcome and a Note on Prosecutorial Ethics

In addition to excluding testimony from the state’s experts because it was, quite clearly, not the product of generally accepted methods as applied to the case at hand, the court excluded Dr. Reich’s extraordinary perceptions of specific words in the enhanced recording as lacking in probative value (the court spoke of “listener bias”) and likely to “mislead the jury.” (The court also thought it would “confuse issues,” but it is hard to see what issues his uncanny hearing confuses).

I have told this story in some length because I think it raises a broader question. Is it ethical for prosecutors to offer testimony like this if they are not prepared to defend it? Florida’s star homicide prosecutors must have known that they were out of bounds on this play. In presenting its expert’s conclusions, the Post’s reporters added that James J. Ryan, “the retired head of the FBI forensic audio, video and image analysis unit” had told them that “[t]he science doesn’t help with a recording like this.” That should have clued them into the possibility that the newspaper experts were overreaching.

By itself, a disagreement among equally well credentialed experts would not have been a reason to forego reasonable testimony. But the two sets of experts were hardly evenly matched in their scientific backgrounds and accomplishments. Why did the state fail to recruit a single disinterested expert to confirm the work for the newspapers? Did the prosecutors not bother to check whether any other reputable scientists could defend its proposed evidence? If so, the competence of the state’s ministers of justice is open to question. On the other hand, if these prosecutors did make the effort and could not produce any credible expert witness, how could they think that they were serving justice? The only purpose for presenting evidence that is clearly scientifically unfounded as if it were good science is to trick the jury into reaching a desired result (whether it be right or wrong). That is not a step to be taken lightly or without reprimand.

References

• David L. Faigman, The Daubert Revolution and the Birth of Modernity: Managing Scientific Evidence in the Age of Science, 46 U.C. Davis L. Rev. 893 (2013)
• David H. Kaye, Experimental and Scientific Evidence, in 1 McCormick on Evidence (Kenneth S. Broun ed. 7th ed. 2013)
• Todd Lindeman, One Expert’s View of a Recorded 911 Call, Wash. Post, May 19, 2012, (Reich spectrograph)
• Stephanie McCrummen & Sari Horwitz, Trayvon Martin Case 911 Call: Two Experts Reach Two Very Different Conclusions, Wash. Post, May 19, 2012
• Letter from Alan R. Reich to Richard Mantei, May 9, 2013

Mathematics on Appeal: Hamilton’s Equations in Lapsley v. Xtek, Inc.

Better off Ted is a satiric TV series about wacky scientists and managers at the amoral high-tech company, Veridian Dynamics. In Lapsley v. Xtek, Inc., 689 F.3d 802, 812 (7th Cir. 2012), Meridian Engineering supplied the scientific breakthrough -- about dynamics -- for plaintiff. But the resemblance ends with the company names. There is nothing funny about this case.

In Xtek, a machine at a steel rolling mill accidentally ejected industrial grease with such force that it shot through a worker’s body, permanently disabling him. As the court of appeals explained:

At trial the jury found that the accident was caused by a design defect in a heavy industrial product designed and manufactured by defendant Xtek, and sold and installed in the mill. That equipment contained an internal spring that could exert over ten thousand pounds of force. The jury accepted the theory of plaintiffs' expert witness, Dr. Gary Hutter, that the spring was the culprit mechanism behind the accident and that an alternative design of a thrust plate in the equipment would have prevented the disabling accident. Xtek has appealed, challenging the district court's denial of its Daubert motion that sought to bar Dr. Hutter from offering his expert opinions, which were essential to the plaintiffs' case.

Xtek’s Daubert challenge, as described in the opinion, was that Dr. Hutter, an engineer who founded the consulting firm, was performing “the simulation of science, not science,” when he used a mathematical model to infer the cause of the release and to conclude that an alternative design would have prevented it. He did no empirical testing to verify his theories, and to Xtek’s lawyers, the notes attached to Dr. Hutter’s report were the “equivalent of Sanskrit.”

The U.S. Court of Appeals for the Seventh Circuit squashed this argument. The opinion could have been rather mundane. It need only have stated that (1) Dr. Hutter used equations that were not in dispute; (2) defendant raised no question about the expert’s assumptions; and (3) supplementary physical testing was not feasible.

In addition to making these points, however, the court took the opportunity to lecture counsel about science. The lecture began with the advice that

Lawyers and judges who were not trained in science can benefit from the famous “Two Cultures” lecture given in 1959 by British scientist and novelist C.P. Snow, in which he described the cultural gap between persons schooled in the sciences and those schooled in the humanities:

A good many times I have been present at gatherings of people who, by the standards of the traditional culture, are thought highly educated and who have with considerable gusto been expressing their incredulity at the illiteracy of scientists. Once or twice I have been provoked and have asked the company how many of them could describe the Second Law of Thermodynamics. The response was cold: it was also negative. Yet I was asking something which is about the scientific equivalent of: Have you read a work of Shakespeare's?

Nowadays, the opinion admonished, “[j]udges and lawyers do not have the luxury of functional illiteracy in either of these two cultures.” The trial judge was not guilty of such illiteracy. There was “no indication, either from the district court's Daubert ruling or its later discussions of the expert evidence during trial, of any deficiency in the court's preparation or in its understanding of the proposed evidence.”

This leaves the lawyers. “For the curious” the court supplied a link to a digitalized version of Sir Isaac Newton’s Philosophise Naturalis Principia Mathematica. This classic is not written in Sanksrit, but the original Latin is challenging enough. Consequently, the court reproduced and described the equations for force, kinetic energy, and pressure. After a nod to quantum mechanics (but not relativity), it announced that “Newtonian physics still provides a reliable and workable description for the mechanical systems of a steel mill.” Seeing no problem with the expert’s use of these “basic equations of classical mechanics” and invoking Galileo and Descartes in addition to Newton and two of the Bernouillis (Daniel and Johann, whose animosity was such that they would not have appreciated being mentioned in the same sentence), the court concluded that “physical tests of [the] theories with regard to causation (the effect of the spring releasing) and alternate design (the reduction in pressure from the grease grooves)” were not essential.

Despite its unusual historical and mathematical sweep, Xtek has a narrow holding. It does not approve of all mathematical modeling of complex phenomena in lieu of physical tests. To be sure, the opinion asserts that “[a] mathematical or computer model is a perfectly acceptable form of test,” and “that simulation is one of the most common of scientific and engineering tools.” Moreover, it contains the memorable line,“We do not require experts to drop a proverbial apple each time they wish to use Newton's gravitational constant in an equation.” But that analogy only goes so far. The reason physicists need not remeasure G every time they wish to use the inverse-square law of gravitational force is that the value already is known from many experiments. In Xtek, the question is the value of an unknown quantity.

The holding is simply that when the equations (including the constants in them) are familiar and their applicability is unchallenged, an expert can use them to make relevant computations. Additional physical testing may be required under Daubert in some cases, but not when it would be too expensive or dangerous. “Around the world, computers simulate nuclear explosions, quantum mechanical interactions, atmospheric weather patterns, and innumerable other systems that are difficult or impossible to observe directly” (emphasis added). Thus, Dr. Hutter did not have “to try to recreate the binding up of a ten thousand pound spring to produce a potentially deadly jet of industrial grease ... to testify to the results of his mathematical simulations.”

It is not often that one encounters equations in a judicial opinion. Years ago, in Branion v. Gramly, 855 F.2d 1256 (7th Cir. 1988), Judge Frank Easterbrook tossed out a partial differential equation and a few calculations of his own to chastise a habeas corpus petitioner’s lawyers for “fooling with algebra” in their brief. I, 1991, I described that effort as needlessly opaque but basically correct.

In this case, the author of the opinion, Judge David Hamilton, stuck to simpler equations. And that takes me to another similarity in names. Judge Hamilton's equations also are simpler than the elegant formulation of dynamics known to physicists as Hamilton’s equations (invented by William Rowan Hamilton, 1805-1865). 

References

• David H. Kaye, David E. Bernstein Jennifer L. Mnookin, The New Wigmore: A Treatise on Evidence: Expert Evidence, New York: Aspen Pub. Co., 2d ed., 2011(updated annually)
• David H. Kaye, Statistics for Lawyers and Law for Statistics, Michigan Law Review, Vol. 89, No. 6, May 1991, pp. 1520-1544 (review essay discussing Branion v. Gramly)

Maryland v. King: The Tenth Justice (Stevens) Votes

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 Justice Stevens' discussion, I think he got it right, and I take issue with the surprising hyperbole that already has appeared in The Atlantic. The justice's words are highlighted.

Last week, in a five-to-four decision, the Supreme Court upheld Maryland's requirement that the police collect a DNA sample from every person charged with a violent crime. The sample that was obtained from the defendant after his arrest for menacing a group of people with a shotgun matched the DNA specimen obtained ten years ago in an unsolved rape case. ... Justice Kennedy concluded that the procedure, which admittedly constituted a ''search'' within the meaning of the Fourth Amendment, was reasonable as a part of the routine identification process followed when taking arrested persons into custody.

In his dissenting opinion, Justice Scalia argued that the real purpose for the search was to solve crimes, rather than to identify persons that the State had taken into custody, and that the Fourth Amendment categorically forbids searching anyone for evidence of a crime if there is no basis for believing the person is guilty of a crime or is in the possession of incriminating evidence. ... [E]ven if Justice Scalia has correctly rejected Justice Kennedy's identification justification for taking DNA records from persons arrested for violent felonies, other considerations may well support the majority's holding.

First, unlike the evidence that may be obtained by examining the contents of containers and clothing during the search of an automobile, taking a DNA sample reveals no information about the private, non-criminal conduct of the object of the search. In the Belton case, I remember being particularly offended because the majority's rule allowed an arresting officer making a traffic stop to search through the driver's brief-case. It seems to me that taking a DNA sample — or a fingerprint sample — involves a far lesser intrusion on an ordinary person's privacy than a search that allows an officer to rummage through private papers.

On The Atlantic's website, award-winning legal reporter Andrew Cohen called the last paragraph "crazy talk." The crazier talk, however, is Mr. Cohen's. In his view, to perform DNA identification profiling, police rummage through "private papers" in the sense of "the unique and vital identifying characteristics of the person to whom they belong." Furthermore, the identification profile goes into, as he puts it, "a secret government database, which makes all of the information contained in those papers immediately available to every law enforcement agency in the nation."

That the database is not public seems like a good thing (although, as I have argued elsewhere, releasing anonymized versions to outside researchers would be desirable). But the key question is, what's the information that goes into the law enforcement DNA databases? Is it private, that is, intimate, personal information?

According to Mr. Cohen, it "can tell observers exactly who he is -- what gender, what race, etc." What's the et cetera? It is hard to get too upset about apparent gender and race -- police can get that from looking at the arrestee. Is the worry that the arrestee might have undergone sex change surgery, and this would be revealed when the laboratory tests the amelogenin gene? Is the worry that CODIS STRs are a record of some biological category known as race? That is not what "race" is. The STRs provide weak information on biogeographic ancestry, but if the DNA profile shows no more than one's public appearance does about these matters, it is hard to get too exercised.

But somehow Mr. Cohen does. He writes that "As part of the 'rummaging,' the police take photographs of each of the documents that make up the 'private papers' and then transfer all of the contents of each document-- words, photographs, everything ... . Even though the papers then are transferred back to the person to whom they belong their contents, having been copied and recorded, are 'seized' forever. The copies, in these circumstances, are exactly as valuable and as telling as the originals. Meanwhile, those papers that were searched can never be destroyed and the information contained in them can never be retracted or disavowed."

This analogy is, at best, forced. STR profiles are not returned to arrestees. They are not kept indefinitely (unless there is a conviction). They can be destroyed. In all these ways, they are like photographs.

As between the two characterizations, then Justice Stevens is much closer to the truth. Fingerprints and DNA profiles are different from private papers. (DNA samples are another story, but if that is what Mr. Cohen is referring to, his description of what happens to them is even more bizarre.)

At the same time, there are nuances that neither Justice Stevens nor Mr. Cohen recognize. STR profiles could be used to probe claims of paternity, for example. But Justice Stevens has it basically right: "a DNA sample — or a fingerprint sample — involves a far lesser intrusion on an ordinary person's privacy than a search that allows an officer to rummage through private papers." The intrusion may not be zero, but it is much less than all the searches through purses, briefcases, backpacks, glove compartments and the like that might contain private papers or other highly informative and embarrassing material. For more on the analogy between acquisition of biometric data and ordinary searches of containers, see The Arizona Supreme Court Adopts a No-Peeking Rule for Juvenile Arrestee DNA, June 28, 2012; On the “Considered Analysis” of DNA Collection Before Conviction, 60 UCLA L. Rev. Disc. 104 (2013) (debunking the Arizona Supreme Court's personal property analogy).

Second, the proven accuracy of DNA samples in both establishing guilt and exonerating the innocent who have been mistakenly convicted or accused, favors greater rather than lesser use of DNA evidence. Rules that unnecessarily preclude the use of such evidence may impede the search for truth without providing any meaningful protection for privacy interests. In the Maryland case, for example, the only interest in privacy that was implicated was the defendant's interest in not being convicted of a serious crime that he in fact committed.

It is not quite this simple. Alonzo King, like the rest of us, has an interest in what I have called "spatial privacy." DNA profiles in a database could lead to the discovery that innocent people have been in private locations that they legitimately would want not to be known to the general public or the authorities. This observation also undercuts the first sentence of the preceding paragraph of Justice Steven's speech. It is literally true that "taking a DNA sample reveals no information about the private, non-criminal conduct of the object of the search." However, the biometric data derived from the sample can. Mr. Cohen is on firmer ground in objecting to the narrow focus of this sentence. Still, the potential for tracking the movements of the person through DNA is also limited. It does not begin to resemble cameras on every street corner or round-the-clock GPS tracking of a car, for example.


Third, the public interest in creating accurate databases about individuals who are reasonably believed to have been engaged in significant criminal behavior should not be ignored. The Maryland system did not apply indiscriminately to the entire population, but only to those for whom there was probable cause to justify their arrest for a violent crime. It is not entirely accurate to characterize the taking of a DNA sample from members of that class as a "suspicionless search" even though they may not be convicted of any crime. More complete and more accurate databases may be useful, not only for the purpose of solving crimes, but also for the purpose, for example, of identifying persons who should not be permitted to purchase handguns.

A true "special need" as the Court has used the term, but hardly one that occurred to the Maryland legislature! Would the King dissent accept it in a state that developed the appropriate legislative history?

Fourth, expanding DNA data-bases will certainly have an increasingly significant deterrent effect on potential rapists. The deterrent value of increasing punishment for crimes is always qualified by the criminal's confidence in his ability to avoid detection. But every potential rapist whose DNA is already available to the law enforcement community will surely know that his identity will be known to the police if he commits a rape. In sum, although I commend Justice Scalia's characteristically lucid opinion to you, and admittedly have not read the briefs in the case, I think I would have voted with the majority if I were still on the Court.

This is a rather optimistic view of the ability of DNA evidence in every rape case. Does it argue for a population-wide database? Or is it only people who are arrested who are "potential rapists"?

References

Justice John Paul Stevens (ret.), Address at American Constitution Society Convention, June 14, 2013 , available at http://www.supremecourt.gov/publicinfo/speeches/JPS%20Speech_6-14-13.pdf

Andrew Cohen, Why Justice Stevens Is Dead Wrong About DNA Searches: Is it really less intrusive to collect someone's vital data for eternity than it is to rummage through his papers briefly?
June 15 2013, http://www.theatlantic.com/national/archive/2013/06/why-justice-stevens-is-dead-wrong-about-dna-searches/276908/

David H. Kaye, On the “Considered Analysis” of DNA Collection Before Conviction, 60 UCLA L. Rev. Disc. 104 (2013)

Maryland v. King: “Quite a Worldview”

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. King establishes that the constitution permits—but does not require—a state routinely to acquire DNA identification profiles from individuals charged with violent crimes or burglary and to test these against databases of profiles of DNA found at crime-scenes and on victims. Osborne establishes that the constitution permits—but does not always require—the state to undertake or permit postconviction DNA testing that apparently could exonerate a convicted offender alleging actual innocence.

To be sure, the Osborne Court did not delineate the extent to which due process mandates postconviction DNA testing. In the view of the majority, it did not need to because the state did not refuse William Osborne a fair opportunity for DNA testing. But even if the Osborne Court was mistaken in treating the procedures in Alaska a basically fair, that Court's view of the reach of the constitution is consistent with its view in King. Sure, Alaska’s dogged refusal to allow Osborne to test, at his own expense, the condom left in the snow where (the jury found) he and another man assaulted, battered, and shot a woman, seems unconscionable. But as Justice Kennedy viewed the case:

Respondent was convicted for a brutal sexual assault. At trial, the defense declined to have DNA testing done on a semen sample found at the scene of the crime. Defense counsel explained that this decision was made based on fear that the testing would provide further evidence of respondent's guilt. After conviction, in an unsuccessful attempt to obtain parole, respondent confessed in detail to the crime. Now, respondent claims that he has a federal constitutional right to test the sample and that he can go directly to federal court to obtain this relief without giving the Alaska courts a full opportunity to consider his claim.

District Attorney's Office for the Third Judicial District v. Osborne, 128 S.Ct. 2308 (2009) (Alito, Kennedy, and Thomas, JJ, concurring). Excerpts from the majority opinion, which Justice Kennedy also joined, are included at the end of this comment.

The reasoning is not a statement that everyone who claims innocence after a conviction should be barred from DNA testing. See also Innocence Project, Press Release, U.S. Supreme Court Decision on DNA Testing Is Disappointing But Will Have Limited Impact, June 18, 2009. Instead, Osborne identifies one situation in which federally ordered postconviction testing is not part of the due process of law essential to criminal punishment. Cf. Innocence Project, Model Law.

In other words, Osborne demonstrates that, a state may (but need not) take and use a DNA sample from every convicted person who volunteers one for postconviction testing. Likewise, King confirms that a state may (but need not) compel every individual who is arrested and charged with a serious crime to give a DNA sample for a suspicionless database trawl. The wisdom of these two decisions certainly is subject to reasonable dispute, but their juxtaposition forms an internally coherent constitutional jurisprudence.

Appendix
Some of the Osborne Court’s reasoning

Alaska provides a substantive right to be released on a sufficiently compelling showing of new evidence that establishes innocence. It exempts such claims from otherwise applicable time limits. The State provides for discovery in postconviction proceedings, and ... this discovery procedure is available to those seeking access to DNA evidence. ... The evidence must indeed be newly available to qualify under Alaska's statute, must have been diligently pursued, and must also be sufficiently material. These procedures are similar to those provided for DNA evidence by federal law and the law of other States ... . [¶] And ... the Alaska Court of Appeals has suggested that ... in an appropriate case the State Constitution may provide a failsafe even for those who cannot satisfy the statutory requirements under general postconviction procedures. To the degree there is some uncertainty in the details of Alaska's newly developing procedures ... , we can hardly fault the State for that. Osborne has brought this §1983 action without ever using these procedures in filing a state or federal habeas claim relying on actual innocence. ... When Osborne did request DNA testing in state court, he sought RFLP testing that had been available at trial, not the STR testing he now seeks, and the state court relied on that fact in denying him testing under Alaska law. His attempt to sidestep state process through a new federal lawsuit puts Osborne in a very awkward position. If he simply seeks the DNA through the State's discovery procedures, he might well get it. If he does not, it may be for a perfectly adequate reason, just as the federal statute and all state statutes impose conditions and limits on access to DNA evidence. It is difficult to criticize the State's procedures when Osborne has not invoked them. ... These procedures are adequate on their face, and without trying them, Osborne can hardly complain that they do not work in practice.

Maryland v. King: A Digression on Ellipses, Actual Innocence, and Dr. Mengele

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 violent crimes and burglary. [1]

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 [2]. As quoted in the justice's opinion, the authors of Actual Innocence -- Barry Scheck, Peter Neufeld, and Jim Dwyer -- had written that “[P]rompt [DNA] testing . . . would speed up apprehension of criminals before they commit additional crimes, and prevent the grotesque detention of . . . innocent people.”

I. Toward More Punctility

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, was 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.”

What exactly was that little ellipsis hiding? To be particularly punctilious, let’s look at the preceding paragraph, all the omitted words, and a few that follow. This material reads as follows (with the quoted part highlighted):

All wrongfully convicted people take the lash of punishment for someone else's crime; that is the very definition of their predicament. Far too often, they are surrogates for serial criminals and killers, as in California, where Kevin Green carried the weight for a crime by Gerald Parker, who for twenty years stood unprosecuted for five murders. In Oklahoma, Robert Miller was condemned to die for murdering and raping two elderly women before DNA testing put a man named Ronnie Lott in their houses, as well as in the homes of several other women who survived his rapes. In Chicago, Rolando Cruz and Alejandro Hernandez were sentenced to death for killing Jeanine Nicarico, although it turned out that Brian Dugan admitted to murdering Jeanine and five others, including children, during sexual assaults. In North Carolina, Ronald Cotton was cleared of two rapes committed by a man tied to eight others. In Virginia, David Vasquez, a borderline mentally retarded man, pleaded guilty to raping a woman and hanging her from a pipe. Vasquez said he was innocent but copped a plea to avoid the death penalty. The time he served belonged to Timothy Spencer, who raped and murdered not only the victim in the Vasquez case, but three other women, all of them hanged. And because Spencer ultimately was sent to death row for the murders, he was not prosecuted for eight other rapes in which he was the prime suspect.

Each year, the technology for linking and solving these kinds of crimes gets faster and cheaper. Computers can sort through data banks of DNA samples with dazzling speed and connect identical profiles among far-flung atrocities. If a genetic profile of a criminal is already lodged in a data bank, identifying him is a no-brainer. Even if a pattern of crimes can't be tagged to a known criminal, prompt testing will prevent the lengthy detention of innocent suspects and immediately put the police back to the task of finding the real perpetrator. The failure to take full advantage of this technology, both for solving crimes and freeing the innocent, is a national scandal. Current investigative approaches must change.

Typically, DNA testing of evidence is done only after a suspect has been apprehended—and then takes two or three months. Hundreds of thousands of rape kits from unsolved cases are thrown out or sit in dead storage for years with no effort made by the authorities to run DNA tests, squandering opportunities to identify serial offenders and clear the wrongly convicted, such as Kevin Green. If crime scene materials were tested and catalogued immediately, one case could be linked quickly to others. Since a forensic DNA test can be completed in two or three days, crime laboratories could be given the resources to finish a case within a week. This would speed up apprehension of criminals before they commit additional crimes, and prevent the grotesque detention of thousands of innocent people.

And that goes not only for rapes and homicides but for burglaries, robberies, assaults—any kind of incident in which a criminal may have left a trace of skin, saliva, hair, or any biological evidence.

The second paragraph on "prompt testing" is a little confusing. How will "prompt testing" of rape kits "prevent the lengthy detention of innocent suspects and immediately put the police back to the task of finding the real perpetrator" when there is no match to a convicted offender in the database? Sticking to cold hits, there will be more of them if arrestee DNA profiles are placed in the database along with the profiles of convicted offenders and are periodically searched against the database of profiles from unsolved crimes. Statements from the matching individuals might exonerate some convicted offenders (for whom post-conviction DNA testing has been unavailable or ambiguous under the circumstances of the cases). Furthermore, these cold hits might prevent the arrests and subsequent convictions of some innocent suspects (who do not receive prompt DNA testing or whose exclusion as the source of the crime-scene DNA is not sufficient, under the circumstances of the case, to demonstrate their innocence).

The next paragraph, however, makes it clear that the "prompt testing" demanded by the the authors of Actual Innocence is only the prompt testing of crime-scene and victim samples. They take no position (at least not here) on the value of "prompt testing" of arrestees, and one of them, Peter Neufeld, told Mr. Liptak that all three "never endorsed arrestee databases.” [1]

Given that Actual Innocence did not explicitly endorse arrestee sampling, how should the opinion have used some of the book's prose? How about a parenthetical phrase -- the darling of the ever punctilious Bluebook (the legal style manual so dear to student law review editors). The paragraph should have read:

Finally, 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. "[P]rompt [DNA] testing . . . would speed up apprehension of criminals before they commit additional crimes, and prevent the grotesque detention of . . . innocent people." J. Dwyer, P. Neufeld, & B. Scheck, Actual Innocence 245 (2000) (referring to the importance of prompt testing of crime-scene samples).

II. Arrestee DNA and Resolving Unsolved Cases

So I have to agree with Mr. Liptak. The citation lacks (parenthetical) punctility. But is it not at least consistent with the logic of the paragraphs from which it quotes? To achieve maximum exonerations and to avoid apprehension of the wrong people for unsolved crimes, should not DNA profiles from arrestees go into the databases for subsequent searches against crime-scene samples along with those of convicted offenders?

Well, not necessarily. It could be argued that arrestees are just gravy -- that if there is not enough money to fund lavishly three sources of samples, crime-scene samples and convicted-offender samples should come first. Interestingly, a brief of "14 Scholars of Forensic Evidence" (that is, law professors) filed on behalf of Mr. King claimed that arrestee sampling exacerbates backlogs and is not necessary to exonerate the innocent. Should a court therefore hold a DNA database law unconstitutional on the ground that a state should be spending more money on one part of the system than another? What if the state then turns around and spends more money on the parts the court, guided by this scholarship, thought more important? Should the court function as a kind of equitable master periodically reviewing funding decisions, average processing times for crime-scene samples, and the number and training of the investigators collecting DNA from crime-scenes? These things, among others, bear on how well the system works in identifying true offenders, but do they have the necessary clarity and susceptibility to judicial supervision to be dividing lines of constitutional magnitude?

I doubt it. As long the legislature pursues a reasonable combination of the essentials required of a database for investigating offenses in which DNA evidence can be recovered, courts should not vitiate the legislative judgment on the ground that the system could be realigned to be still more effective. Courts faithfully interpret the mandate of the Fourth Amendment when they uphold measures that are not unreasonably invasive of personal security. That these measures could be made more efficacious is important in formulating and implementing public policy, but it cannot be the basis for a ruling of unconstitutionality.

III. Dr. Mengele Comes to the Databanks

The Court's reliance on Actual Innocence prompts a final thought (for now).  Immediately after the paragraphs that I quoted in full, the authors add that

No matter whose privacy is at stake, data banks full of genetic information can be dangerous, particularly when the samples disproportionately come from black and brown men. Modern-day Mengeles, in search of evidence for master-race theories, would find data bases irresistible in the quest for a genetic link to criminality. A simple reform could slam the door on such eugenic inquiries. Any leftover blood, tissue, or DNA should be discarded once a profile has been stored.

This passage is not a model of clarity. I do not say this because I disagree with the conclusion. On the contrary, I have written that the case for indefinite sample retention is weak. [3] My concern is with the poorly woven strands of the argument.

Let us remember who Josef Mengele was and what he did. As an SS physician, assigned to the Auschwitz concentration camp, "with full license to maim or kill his subjects, Mengele performed a broad range of agonizing and often lethal experiments with Jewish and Roma ('Gypsy') twins, most of them children. ... Mengele firmly endorsed the doctrine of National Socialist racial theory and engaged in a wide spectrum of experiments which aimed to illustrate the lack of resistance among Jews or Roma to various diseases. He also attempted to demonstrate the 'degeneration' of Jewish and 'Gypsy' blood through the documentation of physical oddities and the collection and harvesting of tissue samples and body parts. Many of his 'test subjects' died as a result of the experimentation or were murdered in order to facilitate post-mortem examination." [4]

What would Mengele do with the DNA samples in a law enforcement repository (were he given access to one, in violation of the laws governing many of them)? Look for some association between the genes of all the individuals in the database and a comparison group of presumably law-abiding individuals? Suppose, contrary to previous research, he found some plausible relationship between a genotype and criminality. Might he then discover that this genotype exists in a larger proportion of the "black and brown men" convicted of crimes than in the men of his favored "master race"? How does the disproportionate representation of the former groups in the criminal databanks make this outcome more likely -- if that is what "particularly dangerous" refers to?

This is not to deny that genetic arguments for racism -- no matter how contrived -- will appeal to some people. There are, by way of comparison, Holocaust deniers and plenty of people willing to dismiss evolution as merely "a theory." But the people who would believe the resurrected Mengele of Actual Innocence hardly need more pseudo-science to convince them that "black and brown men" are genetically inferior. That DNA samples should be destroyed because a Mengele could use them to demonstrate the racial inferiority of some groups seems like one of weakest arguments for sample destruction.

In any event, there is a real connection between Mengele and DNA evidence. Mengele eluded capture for 34 years, from 1945 until his death in 1979. He was buried as "Wolfgang Gerhard" near Sao Pãolo. In 1985, the corpse was exhumed and the remains identified as Mengele. In 1992, DNA evidence confirmed this conclusion. [4]

References

1. Adam Liptak, Cited by a Justice, But Feeling Less Than Honored, N.Y. Times, June 11, 2013, at A15.

2. Barry Scheck, Peter Neufeld, & Jim Dwyer, Actual Innocence: Five Days to Execution, and Other Dispatches From the Wrongly Convicted (2000).

3. David H. Kaye, Behavioral Genetics Research and Criminal DNA Databanks, 69 Law & Contemp. Probs. 259 (2006).

4. United States Holocaust Memorial Museum, Holocaust Encyclopedia: Josef Mengele http://www.ushmm.org/wlc/en/?ModuleId=10005143. Accessed June 13, 2013.

Maryland v. King No. 3: Bertillonage as Precedent

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. The Court wrote:

Beginning in 1887, some police adopted more exacting means to identify arrestees, using the system of precise physical measurements pioneered by the French anthro­pologist Alphonse Bertillon. Bertillon identification con­sisted of 10 measurements of the arrestee’s body, along with a “scientific analysis of the features of the face and an exact anatomical localization of the various scars, marks, &c., of the body.” Defense of the Bertillon System, N.Y. Times, Jan. 20, 1896, p. 3. “[W]hen a prisoner was brought in, his photograph was taken according to the Bertillon system, and his body measurements were then made. The measurements were made . . . and noted down on the back of a card or a blotter, and the photograph of the prisoner was expected to be placed on the card. This card, therefore, furnished both the likeness and description of the prisoner, and was placed in the rogues’ gallery, and copies were sent to various cities where similar records were kept.” People ex rel. Jones v. Diehl, 53 App. Div. 645, 646, 65 N. Y. S. 801, 802 (1900). As in the present case, the point of taking this information about each ar­restee was not limited to verifying that the proper name was on the indictment. These procedures were used to “facilitate the recapture of escaped prisoners,” to aid “the investigation of their past records and personal history,” and “to preserve the means of identification for . . . future supervision after discharge.” Hodgeman v. Olsen, 86 Wash. 615, 619, 150 P. 1122, 1124 (1915); see also McGovern v. Van Riper, 137 N. J. Eq. 24, 33–34, 43 A. 2d 514, 519 (Ch. 1945) (“[C]riminal identification is said to have two main purposes: (1) The identification of the accused as the person who committed the crime for which he is being held; and, (2) the identification of the accused as the same person who has been previously charged with, or convicted of, other offenses against the criminal law”).

After Jake Sherkow, a Fellow at Stanford's Center for the Law and Biosciences, suggested that this recounting of legal history was an "appeal to the truly ugly portion of nineteenth century criminology" and that Bertillonage was "proto-eugenics," he and I corresponded about the value of these measurements for biometric authentication and their putative connection to the eugenics movement. We pretty much converged in our understanding of these matters (see http://blogs.law.stanford.edu/lawandbiosciences/2013/06/11/maryland-v-king-corrections-department-david-kaye-on-bertillonage/), but I think we still disagree on the wisdom of the Court's including a reference to the legal history in its opinion.

I would agree that Justice Kennedy could have made the same point solely with early opinions on the propriety of fingerprinting. However, anthropometrics and photography contributed mightily to that line of cases. The justice began his discussion of fingerprinting with United States v. Kelly, 55 F. 2d 67 (2d Cir. 1932), presenting it as "the seminal case." In fact, it was a part of a long series of cases. E.g., Downs v. Swann, 73 A. 653 (Md. 1909); David H. Kaye, A Fourth Amendment Theory for Arrestee DNA and Other Biometric Databases, 15 U. Pa. J. Const. L. 1095, 1098 n.9 (2013); http://for-sci-law-now.blogspot.com/2012/12/the-judicial-reception-of-acquiring.html. But see with Wayne A. Logan, Policing Identity, 92 B.U. L. Rev. 1561, 1580 (2012) (arguing that Kelly represented a major shift in the caselaw)..

Ignoring judicial approval of anthropometrics and photography therefore would have been ahistorical, especially considering that cases such as Downs saw fingerprints as part of a combined system -- in modern jargon, a multibiometric authentication system. And that is what DNA and fingerprints are today.

Of course, it is not all they are. Both fingerprints and DNA also serve the police intelligence function of associating individuals to crime scenes. The dissenting four justices believe that it is unconstitutional to take arrestee DNA to use it in this manner. I shall consider their reasoning and rhetoric later.

Maryland v. King: Interlude

The more I ruminate 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 can 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
  

Update: see also

• Sherry F. Colb, The Road to Justice Scalia Is Paved With (Some) Intentions: The Supreme Court Decides Maryland v. King, Verdict, June 12, 2013

Maryland v. King No. 2: Was There a Search?

In anticipation of the Supreme Court’s review of Maryland v. King, I proposed that a suitable opinion on routine pre-conviction DNA collection would require the Court to

evaluate the actual interests implicated by preconviction searches, properly defined; articulate the appropriate framework for evaluating the reasonableness of warrantless searches in general; and attend to the complexities in applying that framework to the biology of DNA identification tests and to the limited information recorded in DNA databases.  An opinion that accomplishes these tasks should supply not only a truly “considered analysis” of the constitutionality of DNA-BC but also much needed guidance on the limits of totality balancing in all Fourth Amendment cases.

David H. Kaye, On the “Considered Analysis” of DNA Collection Before Conviction, 60 UCLA L. Rev. Disc. 104 (2013).

The Court now has spoken. Justice Kennedy, joined by the Chief Justice and Justices Thomas, Breyer, and Alito, wrote an opinion upholding Maryland’s law as constitutionally reasonable. Their opinion lists—with approval—all the colorable reasons a state could have for enacting such a law. Justices Scalia, joined by Justices Ginsberg, Kagan, and Sotomayor, correctly but scathingly responded that the Maryland legislature was not really pursuing all these goals in enacting and implementing its law.

From the standpoint of developing more coherent Fourth Amendment doctrine, both opinions have major limitations. The majority opinion, I shall argue, does little to provide the much needed guidance as to when totality balancing applies. The dissenting opinion, on the other hand, adopts a clearer rule but ignores the reasons for the rule (beyond a contested reading of the history of the Fourth Amendment).

The threshold question in King, as in any Fourth Amendment case, is whether a search occurred. The issue was not really in dispute. As the majority opinion points out, cases decided under the “reasonable expectation of privacy” rubric of Katz v. United States had held that requiring an individual to expel air from deep within his lungs, to submit to a blood draw, and to have debris gently scrapped from beneath a fingernail all have been deemed searches. Scraping the inside of the cheek falls in the same category. See also David H. Kaye, The Constitutionality of DNA Sampling on Arrest, 10 Cornell J. L. & Pub. Pol'y 455 (2001).

More recently, the Court has been applying an analysis more closely related to the common law of trespass to decide whether particular information-gathering practices are searches. In United States v. Jones, a majority held that affixing an object—a GPS transmitter—to personal property—a car—was a search even if did not invade a reasonable expectation of privacy. In Florida v. Jardines, a different majority held that bringing a drug-detecting dog onto the porch of a house to sniff was a search on the basis of a similar trespass-like theory.

In both cases, Justice Scalia wrote the majority opinion, paying little respect to the previously established Katz standard. In King, he did not discuss the issue, but at the oral argument, he applied the same trespass-ish analysis. When counsel for King referred to the reasonable expectation of privacy in genomic information, Justice Scalia suggested that the nature of the information was irrelevant because “You have a physical intrusion. You — you pull a guy's cheek apart and stick a — a swab into his mouth. That's a search — a reasonable expectation of privacy or not.”

The trespass-to-the-person notion is sufficient for disposing of the question in King itself, but the Maryland Court of Appeals used a more complex two-search theory. It claimed that “The first search is the actual swab of the inside of King's mouth and the second is the analysis of the DNA sample thus obtained, a step required to produce the DNA profile.” No justice endorsed this bifurcation. The bodily-invasion rationale was sufficient under both Katz and Jones-Jardines..

Stepping back from the precise facts in King, it is interesting to consider how the state could have responded if the dissenting view that the search was impermissible had prevailed. Could Maryland simply have adopted a less invasive mode of DNA collection, then argued that it was not undertaking a search at all? For example, would having a suspect merely touch a sticky pad (and thereby deposit enough cells for DNA profiling) constitute a search under the "physical intrusion onto the person" approach emphasized by Justice Scalia?

One might answer by paraphrasing the dissent’s “doubt that the proud men who wrote the charter of our liberties would have been so eager to [present] their [fingers] for royal inspection.” But that is no answer. These proud men also might not have been keen on sitting still for a photograph or a fingerprint for the King's men; yet, the dissent distinguished taking mug shots from collecting DNA samples “because that is not a Fourth Amendment search at all.” As for fingerprinting, the dissent stated that “our cases provide no ready answer to that question.”

Since photographing is not a search that triggers the Fourth Amendment’s protections, police should be free to use facial recognition software to check whether previous arrestees happen to match photos from a crime-scene (such as the Boston Marathon bombing)—even though they have no basis to suspect the many arrestees of that crime. But if fingerprints are the product of a suspicionless search, the same theory does not apply, and the Court would have to decide whether it is reasonable to trawl a database of latent prints from crime scenes to produce evidence against an arrestee. And if the dissenting Justices would accept the use of fingerprints to connect arrestees to unrelated crimes, why do the majority and the dissent disagree on the reasonableness of DNA collection and trawling? To answer these questions, we must move from the issue of defining the government activity that amounts to a search to the problem of evaluating the reasonableness of searches. As the majority observed, “To say that the Fourth Amendment applies here is the beginning point, not the end of the analysis.”

Maryland v. King No. 1: Quick Thoughts

After the oral argument in Maryland v. King, I wrote that "[i]n the end, my money is on a 5-4 (or maybe 6-3) decision for the state." Today the Supreme Court split into the two main camps I had described. The 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.

Although the question is more delicately balanced than either opinion indicates, the majority reached the correct result. To be sure, not every state wants to establish arrestee DNA databases, and there is ample room to debate whether they represent the best use of scarce resources. But the constitution leaves the option open.

The contrary argument advanced by the dissent is that the Fourth Amendment always prohibits suspicionless entries into the body to investigate a crime. The dissenters would brand these searches as “unreasonable”—no matter how minor the intrusion on the person and no matter how much the program advances the welfare of the public. Justice Scalia tartly concludes that “the proud men who wrote the charter of our liberties would [not] have been so eager to open their mouths for royal inspection.”

Perhaps not, but if the only individual interest that demands protection is the slight discomfort of swabbing the inside of a cheek, a state could collect the DNA another way, perhaps by having the arrestee place his fingers not just on a fingerprint card, but also on a sticky pad.

Ultimately, a more sensitive understanding of the Fourth Amendment is required. It should be constitutionally reasonable to acquire, analyze, store, and search biometric data without a warrant and without individualized suspicion when five conditions hold: (1) the person legitimately is detained (or the data are acquired without confining the individual); (2) the process of collecting the data is not significantly physically or mentally invasive; (3) collection proceeds according to rules that prevent arbitrary selection of individuals; (4) the biometric data are used only to establish or authenticate the true identity of a given individual or to link individuals to crime scenes; and (5) the authentication or intelligence-gathering system is valid, reliable, and effective.

Fingerprinting of arrestees satisfies these conditions. So does photography, iris scanning, and noninvasive forms of DNA collection. The sticking point for many people is that the entirety of one’s DNA contains much more sensitive information. That is surely a legitimate concern, and it is why condition (4) is critical. Any system of DNA databanks for law enforcement—before or after conviction—must have rigorous safeguards to ensure access is confined strictly to biometric data that carry no deep threat to privacy.

Unfortunately, the Supreme Court did not analyze the issue in terms of a well-defined exception to the general rule of warrants and individual suspicion. The five justices in the majority engaged in what the dissent called "free-form" balancing—an approach that, in other circumstances, could be used to balance away important individual interests. Nevertheless, the entire Court agreed that DNA sampling on arrest—a procedure adopted by most of the states, the federal government, and many other technologically advanced countries—“will have the beneficial effect of solving more crimes.” Although the dissent correctly perceived that this is the main purpose of the Maryland law, the majority also emphasized the advantages of knowing whether an arrestee is implicated in other crimes in making decisions about pretrial detention.

The clash between the majority and minority in Maryland v. King leaves many questions unresolved:

● Just how long after an arrest must the state wait to collect the DNA? Maryland waits at least until formal charges are read at a judicial proceeding known as an arraignment.

● If an arrestee’s DNA is a near miss to a profile in the unsolved crimes database, can this fact be used to focus the investigation on his parents, children, or siblings who might be full matches? Maryland forbids such “familial searching.”

● May a state collect DNA from people arrested for more minor matters? The dissent complained that the Court’s logic would allow this, but the “free-form balancing” is a vague standard.

● What if future DNA genetic research overturns the Court’s characterization of the DNA features used for identification today as “junk”?

● If the dissent is right that “[n]early one-third of Americans will be arrested for some offense by age 23” (and if what is left unstated—that disproportionately many of these youths will be from African-American, Latino, and other minority groups”—also is true), would it not be fairer to collect DNA profiles from everyone?

One thing is clear. The legislatures and courts are not finished with the constitutional and policy questions surrounding DNA databases.

References

• 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.

Note: A condensed version of this posting appears in the BBC News blog, Viewpoints: Supreme Court and DNA Samples, BBC News: US and Canada, June 3, 2013.