Barry Rascovar: Two rulings high-court embarrassment -- Gazette.Net


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There’s something about deoxyribonucleic acid -- DNA -- that so perplexes the Maryland Court of Appeals it starts hallucinating and issues rulings based on fiction, not fact.

Twice in recent weeks, the state’s highest court has delivered baffling rulings that defy common sense and sound science.

First, the court declared a breed of dog, the pit bull terrier, “inherently dangerous” without any factual or expert testimony presented in the case to support such a finding.

Then the court swept aside DNA testing of individuals arrested and charged with violent crimes. Its decision is based, in part, on hypotheticals that are strictly forbidden under Maryland’s DNA Collection Act.

Gov. Martin O’Malley and law enforcement officials want Attorney General Doug Gansler to appeal the ruling in federal court. Gansler says that’s what he’ll do if the judicial panel in Annapolis doesn’t reverse itself.

Meanwhile, dog lovers want the governor and legislators to pass a law at this month’s special session reversing the anti-pit bull ruling. That won’t happen, but in January there will be bills to correct the court’s labeling of one breed as malevolent.

What’s missing in both rulings is firm scientific grounding.

In the dog-attack case, the Court of Appeals says if the animal has just a drop of pit bull blood the dog becomes a legal menace.

Forget about circumstances surrounding an attack, the dog’s training, socialization or reproductive status. The only thing that counts for this court is the dog’s bad genes.

No trial is really necessary because the court ruling makes the pit bull “inherently dangerous.” That, in turn, makes the dog’s owner as well as the owner’s landlord liable for damages.

Yet, the majority opinion presents no scientific proof or expert testimony to support the assertion that due to its “aggressive and vicious nature and its capability to inflict serious and sometimes fatal injuries, pit bulls and mixed-breed pit bulls are inherently dangerous.”

The dog’s breeding alone condemns the animal.

In a scathing dissent, Judge Clayton Greene calls the decision “an unenlightening and unworkable rule.”

Greene accuses the majority of being “driven by its apparent desire to reach a particular result” and “succumbing to the allure of bad facts.” That path “leads inevitably to the development of bad law.”

What breed is next? Rottweilers? Other terriers? The court could expand its roster of genetically evil animals at any time.

How are judges to determine a dog’s genetic ancestry? How much pit bull in a dog’s genes is sufficient to type-cast the animal as a bad seed? The court doesn’t say.

Twenty-five breeds “are commonly mistaken for pit bulls,” according to Greene. How should judges handle that situation, since animal groups can’t even agree on what constitutes a pit bull?

Had this case dealt with classifying a group of humans as “inherently dangerous” due to their DNA, the judges would have instantly recognized they were barking up the wrong tree (pun intended).

More troubling is the state court’s defiance of genetic logic in sweeping away the state’s right to collect DNA samples from jailed inmates charged with violent crimes.

The judges expressed more concern for the Fourth Amendment privacy rights of the accused than public safety. Indeed, the opinion keeps referring to Maryland’s “purported interest” in obtaining DNA samples, as though that law is part of a government conspiracy to weaken civil liberties.

The dissent by Judge Mary Ellen Barbera is strong and compelling.

She says the majority overinflates an arrested individual’s privacy rights and underestimates the public interest in collecting DNA samples.

People arrested and charged with violent crimes have a “reduced expectation of privacy” in jail, similar to a convicted felon. This is not your typical man on the street.

Jailed individuals are legally subject to head-to-toe searches, strip searches and fingerprinting, even for minor offenses. Surely, she writes, a cotton swab placed for a second on the inside of one’s cheek isn’t overly invasive.

The court majority, Barbera states, goes far astray in its alarmist view that “the vast genetic treasure map” in a DNA sample might be used by the state in some devilishly devious way.

That’s impossible, she points out. DNA material revealing a person’s genetic makeup, and even inherited diseases, is discarded before tests are run. What’s left is enough to ascertain a person’s unique individuality. State law imposes harsh punishment for testing any more of an inmate’s DNA sample.

One federal court has called efforts to ban such tests “a Luddite approach,” an attempt to defy scientific advances and rely, instead, on old-fashioned — and far less accurate — methods.

DNA sampling delivers fool-proof identification. It is done in a noninvasive way. The testing cannot reveal more than a person’s true identity. And it has become a key tool in solving hundreds of “cold cases” of murder and rape.

Maryland’s high court is embarrassing itself. By dismissing the scientific breakthrough of DNA testing, the court majority looks like a bunch of modern-day Luddites — resisting technological change that holds the potential to make Maryland a safer and more secure community.

Barry Rascovar is a state government columnist, communications consultant and radio commentator on WYPR-FM, 88.1. He can be reached at brascovar@hotmail.com.