High court's DNA case pits crime solving vs. privacy

A link has been posted to your Facebook feed.

A tweet has been posted to your Twitter account.

A link has been sent to your friend's email address.

Jayann Sepich stands in front of the Supreme Court holding a photograph of her daughter Katie. (Photo: H. Darr Beiser, USA TODAY)

States, feds fight crime by taking DNA upon arrestsMaryland case presents unique Fourth Amendment testNew Mexico couple fights for memory of murdered daughter

WASHINGTON — Katie Sepich was a radiant beauty of 22, a graduate student at New Mexico State University, when she was brutally raped and strangled and her body set on fire in 2003. Despite DNA evidence, it took three years to identify Gabriel Avila as her killer. By then, he had committed other crimes.

Dwayne Jackson was 18 when he was convicted for a violent robbery in Las Vegas in 2001. Thanks to DNA evidence, he was imprisoned for nearly four years — until a laboratory error was discovered that revealed his innocence. In 2011, he won a $1.5 million settlement.

On Tuesday, those stories and others will resonate inside the Supreme Court, where the justices will be asked to rule on the use of DNA in law enforcement. At stake is the widespread police practice of taking DNA samples from people arrested but not yet convicted of serious crimes — a practice fueled in part by the persistent advocacy of Katie Sepich's parents.

If the justices rule later this year that it's constitutional, says Jayann Sepich, "I think the impact will be monumental, and I believe there will be a tremendous number of lives saved."

But civil liberties advocates worry that allowing police to take DNA samples before conviction increases the possibility of errors such as the one that stole four years of Jackson's young life. While DNA is effective in law enforcement, they say, it's also subject to contamination, misinterpretation, sample switches and outright fraud.

The justices should uphold the Fourth Amendment's protection against unreasonable searches and seizures, says New York University law professor Erin Murphy, and "not be so dazzled by the technology in question."

They weren't so dazzled by a GPS tracking device last year, holding that police could not attach it to a car in order to monitor a suspect's movements. Last week, the court split on two more Fourth Amendment cases, ruling that using a drug-sniffing dog with reasonable suspicion was OK, but executing a search warrant after a suspect has left his home was not.

Modern technology presents a problem, however, particularly for justices who try to adhere to the Constitution. The framers didn't have GPS or DNA to contend with in the late 18th century.

Last week, the court grappled with the patent rights of self-replicating soybeans. In April, justices will debate a breast cancer detection technology that comes from human genes.

In Maryland v. King, the justices will decide whether a law enforcement tool used since the 1990s to help states and the federal government solve crimes is constitutional. It was then that Louisiana became the first state to take DNA from those simply arrested on felony charges, but not convicted. A few more states followed, but the trickle became a flood after 2005, when a federal law allowed the states' cases to be uploaded to a national database.

New Mexico became the sixth state to pass the law in 2006, the same year that Katie Sepich's killer finally was charged with her murder. "It took three years, which were very agonizing years for the family," says New Mexico Gov. Susana Martinez, who prosecuted the case as district attorney at the time.

The statute was dubbed "Katie's Law." In the years since, Jayann and Dave Sepich have taken their cause nationwide, creating the organization DNA Saves to advocate for collection upon arrest. Today, more than half the states have passed their own laws, greatly expanding the number of DNA profiles available to law enforcement agencies in the national database.

"It's amazing that they have the strength and conviction to do this in the name of their daughter," Martinez says.

Last year, Congress passed the Katie Sepich Enhanced DNA Collection Act, which President Obama signed last month. It creates a grants program to help states pay for the expanded system.

"It's the right thing to do," Obama said of taking DNA from arrestees in a 2010 appearance on America's Most Wanted. "This is where the national registry becomes so important."

The bolstered federal database has helped solve thousands of crimes by linking DNA evidence at old crime scenes to newly arrested people.

"Behind every number is a human story, a case in which a buccal swab sample collected from a felony arrestee played a crucial role in solving a violent crime," says a brief submitted by all 49 other states backing Maryland's law.

On the other side is Alonzo Jay King, who was arrested on assault charges in 2009. Police collected DNA from a simple cheek swab and matched it to a 2003 rape case, for which King then was convicted. The Maryland Court of Appeals reversed that decision, ruling that the cheek swab constituted a search without either a warrant or suspicion of another crime. Now the state, backed by the federal government, is challenging that ruling.

Kannon Shanmugam, the lawyer who will argue King's case in court Tuesday, contends the cheek swab was a bodily intrusion requiring a search warrant. Because there is no Supreme Court precedent on DNA, he says, the decision will be one of the court's most significant Fourth Amendment rulings in years.

"There are over 12 million arrests in the United States every year," Shanmugam's brief says. "Virtually all of the arguments advanced by petitioner and the United States would justify the blanket collection and retention of DNA from ordinary citizens."

Maryland argues that DNA is just an extension of fingerprinting and other tools for identifying suspects, "the Fourth Amendment legitimacy of which has never been seriously doubted."

But opponents note that taking DNA from people upon arrest is to help in other investigations, not to identify the person already under arrest. They fear the DNA swabs will lead to more false hits and wrongful convictions.

Advocates of the federal-state database say plenty of privacy safeguards exist. If the system works as it is supposed to, 13 DNA markers are uploaded, incapable on their own of providing sensitive genetic information. Only upon conviction is a second swab taken for further testing. If the arrested person is acquitted or the case thrown out, the DNA information is destroyed and the records expunged.

Jayann Sepich is so convinced the information is harmless that she includes hers on the back of her business card. "There's nothing on those 13 markers that discloses anything private," she says.

As for the merits of collecting DNA at felony arrests, Sepich says she became more convinced after reviewing the case of a California man arrested 21 times over 15 years without being convicted of a crime requiring a DNA swab. When he finally was convicted of rape, his DNA was matched to 12 other rapes and murders of women, dating to his first felony arrest.

"When I look at that list of names, I don't see names," Sepich says. "I see daughters, and I feel the heartbreak of their mothers who had to bury them."

View the original article here