Thursday, October 30, 2014

Another Disgusting DNA Case: Please Flush!

A quick update to the disgusting DNA report of last March (The Whooper Stopper). Following up on a report from KOAT-TV in Albuquerque, the Associated Press reported that a man helped himself to $250,000 worth of jewelry from a home while the owners were on vacation and neglected to flush whatever he left behind in the toilet. Is there is a lesson to criminalists here: swab toilet seats and handles to catch more considerate burglars as well? Probably not. Cf. Peter Gill, Misleading DNA Evidence: Reasons for Miscarriages of Justice (2014) (discussing the interpretation of touch DNA).

Far more offensive is a case reported by the same TV station in 2011. It seems that a 31-year-old Sunflower Market employee offered a woman what he said was a free yogurt sample. Incredibly, it was his semen. After pleading guilty, he was sentenced to a two-year prison term.

Tuesday, October 7, 2014

The Supreme Sound of Silence: Same-Sex Marriage and DNA Databases

The big news among Supreme Court watchers is the big dog that did not bark in the night — the Court’s denial of petitions for certiorari in seven cases striking down bans on same-sex marriage in Indiana, Wisconsin, Utah, Oklahoma, and Virginia. [1] A denial of a cert petition has no precedential value. It does not mean that the Court approves of the decision below—or that it disapproves of it. It means that, for unstated and often banal reasons (the Court receives some 10,000 petitions a year [4]), no more than three Justices voted in favor of review the decision below. (By convention, it takes four votes to grant the writ that triggers the Court’s review of the case on the merits.)

The Court watchers are treating the rejection of the writs here as a “tacit win to gay marriage” on the theory that it means that if and when the Court chooses to confront the issue, a majority of states will have sanctioned same-sex marriage, making it more likely that the Court will accept the argument that the Constitution forbids limiting the institution of marriage to couples of the opposite sex. [3]

This predicted dynamic was evident in the Court’s handling of laws requiring routine DNA collection for law enforcement databases. No appellate court ever struck down a law requiring convicted offenders to provide samples, and for some thirty years, the Court invariably denied petitions for review in those cases. Only after Maryland’s highest court essentially invalidated that state’s law providing for DNA collection on arrest did the Supreme Court step in. By that time, every state had a DNA database for convicted offenders, and a majority had extended them to require pre-conviction DNA sampling. Every state signed an amicus brief urging the Court to uphold the practice. The Court split 5–4 on the constitutionality of pre-conviction DNA testing. Had the states and the federal executive branch not presented so unified a front in favor of expansive DNA collection, the outcome could have been different. [2]

References
  1. Amy Howe, Today’s Orders: Same-sex Marriage Petitions Denied, SCOTUSblog, Oct. 6, 2014, 10:41 AM, http://www.scotusblog.com/2014/10/todays-orders-same-sex-marriage-petitins-denied/
  2. David H. Kaye, Why So Contrived? DNA Databases After Maryland v. King, 104 J. Crim. L. & Criminology 535 (2014), available at http://ssrn.com/abstract=2376467
  3. Adam Liptak, Supreme Court Delivers Tacit Win to Gay Marriage, N.Y. Times, Oct. 7, 2014, at A1, http://www.nytimes.com/2014/10/07/us/denying-review-justices-clear-way-for-gay-marriage-in-5-states.html
  4. Robert M. Yablon, Justice Sotomayor and the Supreme Court’s Certiorari Process, 123 Yale L.J. F. 551 (2014), http://yalelawjournal.org /forum/justice-sotomayor-and-the-supreme-courts-certiorari-process.html