News Column

High Court's DNA Case Pits Police Against Privacy

Feb. 25, 2013

Richard Wolf, USA TODAY

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 $1.5million 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 partly by the advocacy of Katie Sepich's parents.

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

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 life. DNA is effective in law enforcement, they say, but it's also subject to contamination, misinterpretation, sample switches and fraud.

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

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. 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, it 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. In 2005, 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, a Republican who prosecuted the case as district attorney at the time.

The statute was dubbed "Katie's Law." Since then, 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.

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

On the other side is Alonzo Jay King, who was arrested on assault charges in 2009. Police collected DNA from a 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 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.

"Virtually all of the arguments advanced by petitioner and the United States would justify the blanket collection and retention of DNA from ordinary citizens," his brief says.

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

(c) Copyright 2013 USA TODAY, a division of Gannett Co. Inc.

Source: Copyright USA TODAY 2013