Monthly Archives: September 2012

SAN FRANCISCO -- On a March day three years ago in San Francisco's Civic Center Plaza, Elizabeth "Lily" Haskell was arrested during a rally against the Iraq War, cuffed on a felony allegation that she tried to spring another protester who had been taken into custody.

But once hauled off to jail, Haskell found herself in the legal cross hairs for more than just civic rabble-rousing. Sheriff's deputies ordered her to submit to DNA testing under a then-new provision of California law, giving her the choice of letting them swab the inside of her cheek or face an additional misdemeanor charge and sit in a jail cell for two days.

Haskell relented and took the DNA test. But now the Oakland woman is at the center of an American Civil Liberties Union legal challenge to a state law that allows law enforcement to collect DNA samples from anyone arrested for a felony, regardless of whether they are later charged or convicted. In Haskell's case, prosecutors never followed up the 2009 arrest with a criminal charge.

"My DNA was taken without any kind of due process," Haskell said last week. "I believe people should have the right to refuse to give their DNA."

On Wednesday, a special 11-judge panel of the 9th U.S. Circuit Court of Appeals will hear arguments in the latest round in the case, which has highlighted a legal issue that appears bound for the U.S. Supreme Court. In fact, in a brief order earlier this year, Chief Justice John Roberts said

At the request of civil liberties lawyers, the 9th Circuit agreed to take a second look at the Haskell case after a three-judge panel, in a 2-1 ruling, earlier this year upheld a voter-approved 2004 California law allowing DNA collection. The 9th Circuit rejected arguments that the law, which went into effect in 2009, tramples on the constitutional rights of those arrested for felonies, saying "government's compelling interests far outweigh arrestees' privacy concerns."

In court papers, lawyers for Haskell and others arrested but never charged with felonies argue that the California law "is an unprecedented expansion of the government's power to collect DNA evidence and to DNA profile individuals who have never been convicted of any crime."

To the ACLU, there is no reason someone's DNA should wind up in the state's DNA database if the person has never appeared in court, much less in front of a jury.

"People who haven't been convicted of anything shouldn't be treated like criminals," ACLU attorney Michael Risher said.

Law enforcement officials argue that the DNA collection law is a crucial tool in solving crimes. They liken taking a DNA swab at the time of arrest to fingerprinting.

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Federal appeals court to hear challenge to California DNA collection law

An Alabama man was charged this month with the 1980 murder of an Oxnard teen. A Placerville man was arrested last month for a 1986 rape and murder of a San Mateo teen. A San Francisco man is currently on trial for the murder and robbery of a tourist two decades ago.

Technological advances in genetic research and computers in recent years have turned solving "cold cases" into near-routine police work. The California Attorney General reports that the state's DNA database of close to 2 million samples spits outs more than 425 "hits" a month, more than double the average monthly rate of 183 in 2008. More than 10,000 suspects have been identified in the last five years.

But on Wednesday, the American Civil Liberties Union will argue before a federal appellate court in San Francisco that California's DNA collection efforts have become unconstitutionally aggressive and that the spike in hits comes at the expense of civil liberties.

The ACLU is asking the 9th U.S. Circuit Court of Appeals to strike down California's Proposition 69, which authorized police to obtain a genetic sample from every person arrested on felony charges, not just those convicted. Some 25 other states have enacted similar laws since 62 percent of the California electorate passed the measure in 2004.

The issue of the warrantless swabbing of the cheek with a Q-tip of everyone arrested for a felony has sparked one of the hottest "search and seizure" debates in state and federal courts in decades.

The U.S. Supreme Court has already signaled its willingness to review Maryland's DNA collection law after a federal appeals court there ruled it unconstitutional in April. The California Supreme Court has agreed to review a lower court's overturning of the California law. Several other state and federal courts have already ruled or are weighing the issue throughout the country.

While the courts are sorting out the issue, California law enforcement officials are collecting more than 11,000 samples a month.

"Cold hit DNA is integral to bringing criminals to justice," said San Francisco District Attorney George Gascon, whose office is prosecuting William Payne for the 1983 strangulation murder of Nikolaus Crumbley. Crumbley's body was found in the city's McLaren Park along with DNA that was finally matched to Payne earlier this year. Payne denies killing Crumbley, saying his DNA was found at the scene because the two had had consensual sex. The match was made after Payne submitted a DNA sample after an unrelated assault conviction.

"Almost three decades later, we have charged the person responsible for this horrific murder," Gascon said.

The 9th Circuit itself has previously upheld the California law, which went into full effect in 2009. But underscoring the importance of the debate, a majority of the court's 24 judges voted to reconsider that divided ruling of three-judge panel. The matter now goes before a special "en banc" court of 11 judges.

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Calif. DNA Collection From Arrestees Challenged