Criminal Appeal

Review Grant - DNA Evidence

Yesterday, the California Supreme Court granted review in People v. Nelson, no. S147051  (Cal.Ct.App. (3d Dist.) no. C047366. In its unanimous partially-published opinion in this case involving a 1976 murder and 2002 DNA hit, the Third District had rejected the defendant's DNA related claims

(1) the delay between the date of the crime and the filing of a complaint charging him with the murder violated his right to due process of law, and (2) in light of the holding in People v. Kelly (1976) 17 Cal.3d 24 (hereafter Kelly), the DNA evidence should not have been presented to the jury because there is no general scientific acceptance of a statistical means of explaining the results of a DNA comparison when a DNA databank is used to identify a potential candidate.

Appellant was represented in the court of appeal by Cara DeVito.

Kozinski Mourns Loss of Anonymity. That's right. I've spend a couple more days absorbing Kincade, the recent Ninth Circuit en banc DNA profiling decision, and Judge Kozinski is worried about loss of anonymity:

Perhaps my colleagues in the plurality feel comfortable living in a world where the government can keep track of everyone’s whereabouts, or perhaps they believe it’s inevitable given the dangers of modern life. But I mourn the loss of anonymity such a regime will bring.

Slip op. at 11533. Of course he's right, but I can't help chuckling about Judge Kozinski of the Slate diary, the Underneath Their Robes Correspondence and the Dating Game (credit to UTR for this videoclip; best to right click and save target to disk and then open with Real Player) mourning his loss of anonymity.

O.K. he's not shy and in some circles he's a celebrity, but Judge Kozinski can still be anonymous when he wants to. Are his and our days of anonymity numbered? On this front, Judge Kozinski explains how our loss of privacy results, not just from the technology, but from judicial opinions that alter our expectations. Such altered expectations will be used to justify future intrusions:

Later, when further expansions of CODIS are proposed, information from the database will have been credited with solving hundreds or thousands of crimes, and we will have become inured to the idea that the government is entitled to hold large databases of DNA fingerprints. This highlights an important aspect of Fourth Amendment opinions: Not only do they reflect today’s values by giving effect to people’s reasonable expectations of privacy, they also shape future values by changing our experience and altering what we come to expect from our government.

Kincade Post No. 4: What's Next? Two things come to mind: SCOTUS and Prop. 69.

SCOTUS. There will, inevitably, be a cert. petition filed in Kincade. But there's another case to watch: People v. Adams, Cal.Ct.Appeal, no. H024504. The Cal. Court of Appeal, in Adams, rejected the defendant's claim that collection of his blood when he was a state prisoner for inclusion in the state’s convicted offender DNA database violated the Fourth Amendment. Significantly, and in contrast to Kincade, Adams involves a defendant prosecuted following a DNA cold hit. His DNA profile was used, not to monitor his conduct while on parole, but to investigate a long-ago committed crime. Read my original post on Adams here. By granting cert. in both Kincade and Adams, the Court might be able to decide a wide range of the Fourth Amendent questions presented by DNA profiling of felons. The cert. petition in Adams, no. 03-10635, has been distributed for the conference of September 27, 2004.

Proposition 69 (the "DNA Samples. Collection. Database. Funding. Initiative Statute.") will be on the November ballot in California. Information about the proposition can be found on the Secetary of State's ballot pamphlet page. It requires DNA samples for anyone convicted of a felony and for persons, including juveniles, merely arrested (i.e. not convicted) for certain offenses. In other words, Judge Reinhardt was not so far off with the parade of horribles he describes in his dissent in Kincade.

Kincade Post No. 3: Cal. AG Speaks Out. This morning, AG Bill Lockyer issued a statement which starts, "The Ninth Circuit Court of Appeals today ruled a federal policy of collecting DNA samples from federal parolees does not violate the 4th Amendment. In reaching its decision, the majority correctly found the traditional test of weighing an individual's expectation of privacy with the government's interest is the appropriate balancing standard to determine whether a policy or statute is constitutional." (Emphasis added.)

Of course, Mr. Lockyer is mistaken. It was only a plurality of the court that was willing to apply the traditional balancing test.

Kincade Post No. 2: Press Coverage. In a post yesterday, Howard "How Appealing" Bashman gives the quick picture of the ruling, and in a post this morning he collects news stories on Kincade.

Kincade Post No. 1: Sorting Out the Opinions. An en banc panel of the Ninth Circuit decided U.S. v. Kincade, no. 02-50380, yesterday, ruling 6-5 in favor of the government and holding that DNA testing and profiling of federal defendants on supervised release, under the DNA Analysis Backlog Elimination Act of 2000 (42 U.S.C. § 14135a), does not violate the Fourth Amendment, even in the absence of individualized suspicion. The decision was somewhat fractured, and is best described as 5-1-5.

Plurality. The five-judge plurality opinion, authored by Judge 0'Scannlain and joined by Chief Judge Schroeder and Judges Silverman, Clifton, and Callahan, rejected the appellant's Fourth Amendment challenge by applying the Fourth Amendment totality-of-the-circumstances reasonableness test.

Warning! Long post continues. Click "Continue Reading" for more.

In holding the search and seizure reasonable, the plurality found the intrusion not terribly significant the defendant had a diminished expectation of privacy while on supervised release, the blood extraction was minimally invasive (and sterile!), and the defendant lacked an expectation of privacy in his identity, as revealed by the DNA profiling. In contrast, the plurality found the government interests significant: monitoring conditional releasees (linking them to crimes they commit while on supervised release), the deterrent effect of the profiling, and the closure that results from solving past crimes.

The plurality held that it could apply this Fourth Amendment reasonableness balancing test despite the absence of individualized suspicion, thereby rejecting the defense arguments that the special needs doctrine applied and that the seizure of blood and DNA profiling could not be justified as a special needs search because the profiling had an investigatory purpose which would survive the length of the supervised release term. The plurality acknowledged that recent U.S. Supreme Court special needs cases, such as Ferguson v. City of Charleston, 532 U.S. 67 (2001) and City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000), suggest that a search which has, primarily, a law enforcement purpose must be supported by individualized suspicion. But the plurality avoided the special needs framework by noting that in United States v. Knights, 534 U.S. 112 (2001) the Supreme Court validated a warrantless law enforcement search of a probationer, by applying the general totality-of-the-circumstances test, without considering the special needs doctrine. The plurality thus found itself free to apply the totality-of-the-circumstances test to the DNA Act, without consideration of the special needs cases. The problem with this analysis is that it gives short shrift to the fact that the search in Knights actually was supported by reasonable suspicion. To this, the plurality says "The Court has long understood special needs analysis to be triggered not by a complete absence of suspicion, but by a departure from the Fourth Amendment’s warrant-and-probable cause requirements." A majority of the en banc panel (Judge Gould who concurred and the five dissenters) rejected this approach, although in different ways.

Concurrence. Judge Gould (concurring opn. starts on page 11471 of slip op.) held that the search was justified under the special needs doctrine, although he did not seem to totally reject the plurality's approach:

I would affirm based on the “special needs” of monitoring convicts on supervised release and deterring their possible recidivism. Each method of analysis has support in Supreme Court doctrine and support from our sister circuits. But in my view it would be better to follow the special needs approach because with it extant precedents control.

Judge Gould concluded that the DNA ACT was justified by the special need of monitoring and deterring those on supervised release.

Judge Gould also placed an important caveat on the court's holding, stating his understanding that the decision was limited to whether the search and maintaining of the DNA profile was justified while the defendant was on supervised release, and the question of whether the profile should be destroyed when the defendant is no longer under supervision is still open:

A nice question, if and when properly presented, would be whether DNA samples, though lawfully obtained from a felon on supervised release, may properly be retained by the government after the felon has finished his or her term and has paid his or her debt to society.[Fn.] Once the special need for the DNA sample has gone, does the government have sufficient reason to retain the sample in order to overcome the felon’s privacy interest? Kincade’s case does not call upon us to answer this question. I express no view on the question of the future retention of a felon’s DNA after supervised release is terminated, nor do I understand the majority opinion to express any view on this question.

Main Dissent. Judge Reinhardt, in a strongly-worded dissent joined by Judges Pregerson, Kozinski, and Wardlaw, explained that, under the majority approach, anyone with a diminished expectation of privacy (e.g. public school students, federal job applicants, air travelers) could be subjected to similar intrusions and testing: "given the 'monumental' government interest and the 'insignificant' invasion of privacy described by the plurality, it is difficult to imagine that the balancing of interests it then performs would not justify the government’s including data regarding all Americans in the system regardless of the level of the expectation of privacy they might possess." Judge Reinhardt also found error with Judge Gould's approach: "my respected colleague who opts for the special needs standard obliterates the distinction between law enforcement and non-law enforcement purposes." The dissenters concluded that individualized suspicion is required for law enforcement searches. The dissenters also concluded that the search cannot be justified under the special needs doctrine because the purpose of the DNA Act is to solve crimes committed, not just during supervised release, but prior to the defendant being placed on supervised release and after the defendant is no longer under supervision. As to the totality-of-the-circumstances test and the plurality's reliance on Knights, Judge Reinhardt explained, "[t]he best way to make sense of Knights, in light of Griffin and the Court’s 'special needs' cases, is to recognize that in Knights the Court was free to apply the 'totality of the circumstances' test because the search was supported by individualized suspicion." (Were he to apply the totality-of-the-circumstances test, Judge Reinhardt would find the intrusion unjustified and the search unreasonable under the Fourth Amendment.)

Judge Kozinski issued a separate dissent, in part to emphasize that Judge Gould erred in putting off for another day the question of whether the search and seizure could be justified for a defendant who is not on supervised release, i.e. should the DNA evidence be destroyed when the term of supervised release ends? (Although he joined Judge Reinhardt dissent, it seems that Judge Kozinski would find the search justified under the special needs test for those defendant still on supervised release. He also seems to conclude that the DNA Act passes a totality-of-the-circucmstances test, were that test to apply.)

Finally, Judge Hawkins also wrote a separate dissent, although he admitted to plowing no new ground.

Note: while Judges Reinhardt and O'Scannlain have exchanged more bitter barbs in the past, the exchanges in this case would not be called gentle.

Murder Conviction Upheld (Cal. Ct. App., 6th Dist.)

The California Court of Appeal (6th Dist.) upheld a first degree murder conviction today, (1) holding there was no error in excluding third party culpability evidence; (2) rejecting the defendant's claim that collection of his blood when he was a state prisoner for inclusion in the state’s convicted offender DNA database violated the Fourth Amendment; and (3) holding there was no error in the trial court's failure to instruct that felony-murder special circumstance requires the jury to find that he had the specific intent to kill. Justice Eugene M. Premo authored the opinion in People v. Adams, no. H024504.