The Maryland Attorney General’s Office filed a motion asking the state’s highest court to reconsider its decision to overturn the conviction of a man found guilty of rape after a DNA sample taken from him following his arrest in connection with an unrelated assault in 2009 tied him to a rape six years earlier.
The Court of Appeals last month ruled a 2008 state law to allow the collection of DNA samples from those arrested for crimes of violence violated the U.S. Constitution.
The motion, filed by Attorney General Douglas F. Gansler (D), asks the Maryland Court of Appeals to issue a stay of enforcement of its ruling pending further appeal. Supporters of the DNA law, from Gov. Martin O’Malley (D) to law-enforcement agencies across the state, have urged the Attorney General’s Office to appeal the ruling to the U.S. Supreme Court.
The Court of Appeals’ decision “undermines important public safety objectives that the General Assembly sought to achieve,” according to the attorney general’s motion.
The DNA collection, done by a swab of the inside of an arrested person’s cheek, has helped resolve 190 unsolved cases and also has exonerated those wrongly convicted, according to the motion.
“Finally, it should not be forgotten that this case involves a heinous crime against a real, life-and-blood victim, where the identity of the perpetrator and his actual guilt are not in genuine dispute,” the motion states. “Yet, as the majority opinion predicts, the new trial that the Court’s ruling directs is one where the strongest piece of evidence linking the perpetrator to the crime cannot be considered.”
The 53-year-old woman did not see her rapist, who wore a mask and raped her at gunpoint, according to court documents.
Charles County State’s Attorney Anthony B. Covington (D) said he is “in full support” of Gansler’s motion and called the court’s ruling a “reluctance to accept the new technology and the new things that are coming along that assist law enforcement.”
“My position is that the DNA that is recovered and the protocols that they have with it, it’s not any more intrusive than a fingerprint,” he said. “Technology is moving fairly fast. I know everyone is concerned about infringement on privacy rights, but DNA is the new fingerprinting.”
Covington said DNA samples that have been taken from suspects at the time of arrest are used for identification only, much like a mug shot or fingerprints.
“They can take your fingerprints when they arrest you,” said Del. C.T. Wilson (D-Charles), who recently resigned as a prosecutor with the Prince George’s County State’s Attorney’s Office. “I don’t know why DNA would be any less permissible.”
Wilson pointed out that one month ago the U.S. Supreme Court ruled that strip searches were permissible for anyone arrested and detained, even for minor offenses or traffic violations.
“If the Supreme Court has allowed that, I’m pretty sure we will be able to get this [appeals court ruling] reversed at some point,” he said.
The ruling sends the case on which the Court of Appeals ruled back to Wicomico County Circuit Court for a new trial, excluding the DNA evidence collected from Alonzo Jay King Jr., who was convicted of rape.
“The rapist will go free unless the Supreme Court overturns the Court of Appeals decision,” said Lisae C. Jordan, general counsel for the Maryland Coalition Against Sexual Assault.
Covington compared King’s case to a situation where someone is arrested and his or her fingerprints, taken during booking, match those left at the scene of a previous crime.
“Please tell me, what’s the difference? There’s really no difference whatsoever, except obviously in the court of appeals’s mind,” Covington said. “I understand privacy concerns, Big Brother and all that, but this is not one of those situations.”
Covington is not aware of any cases or convictions in Charles County that came as a result of DNA that was taken at the time of an arrest.
Opponents of the law had warned that the 2008 amendments to the state’s DNA Collection Act that changed the law to allow collection of DNA samples from those arrested would be found unconstitutional and that the state would continue to expand collection of DNA samples if left unchecked.
The Maryland ACLU’s David Rocah said the court’s 5-2 ruling protects the public from government encroachment.
The ACLU and others will challenge efforts to make the DNA collection permanent, Rocah said. Many legislators were skeptical of the state’s effort in 2008, and he thinks the court ruling shows those who opposed the bill then were right in questioning it.