Jury Trial

It has been an interesting and certainly non-traditional journey for me to get to where I am now. Many who wish to become lawyers do so by going to high school, then to college, and then to law school. Typically, from my understanding, this is done in somewhat quick succession and often without delay. Not me, at least not without delay. I went to high school, then to undergrad in what is a more traditional succession. I left undergrad, degree nearly completed, as part of a work-study that was supposed to last one semester yet ended up being a two year journey beginning in Baltimore and ending in Chicago. I then returned to Maryland, not having completed my undergrad degree, and eventually began working in the law. I had no clue what I was really doing, and learned everything on the job. That was a positive experience, and quickly I went from a paper pusher to someone in an office with some responsibility. Then, realizing that I was being grossly underpaid, changed jobs to a larger firm for more money and less responsibility. At this point in time I began to complete my undergraduate degree. I transferred from the school I started with, and over a few years completed a bachelor’s degree. In this time I switched jobs again to a solo attorney for whom I would use a lot of my marketing background and sales experience to build a small firm into a high volume firm over the course of a few years. Before beginning law school at the University of Baltimore School of Law in August 2011 I got married and became a father of one(not particularly in that order, but this story is about my non-traditional style, right?). In the middle of my second semester I became a father again. I really hate when people use that verbage, but it seems to be what people say when something happens again. I had never ceased being a father, but I had another child.
My law school experience, like most other experiences in my life, have been a little different that what I observed everyone around me to be having. When I first arrived at new student orientation, I quickly realized that I was the only student that I spoke to that really knew what he or she wanted to do after school, moreover the only student who seemed to know why he/she was even attending law school. I had a plan, a plan B, and perhaps even a plan C depending upon how the 4 years of evening law school would develop. As with most plans, this changed somewhat, as the dynamic of my life certainly changed. As a night student I was in Baltimore to late hours 4 nights out of the week. In the first semester I was not getting home to Cecil County until nearly 11pm, waking up around 5:30 or 6am and starting all over again. When my son was born, there was no sleep really for several months. This was incredibly taxing on myself and my family–both physically, mentally and emotionally. In the fall of my second year I enrolled in a mix of courses evening and day classes, allowing me to be home 3 week nights and at school only 2. At this point I also switched my status to full-time day student so that I could take additional credits exceeding the max of 12. By the fall of the third year, I was down to my last 2 semesters. Overloading and taking full summer course loads allowed me to accelerate the 4 year degree plan into 3 years. It look a lot of maneuvering to be able to finish in the spring, and not have to take summer classes in my final year. I wanted to avoid taking courses when others were taking the bar. I didn’t want to be preparing for the bar when the July bar takers were being sworn in and beginning their careers. Much of these maneuvers involved a lot of self sacrifice. When I began law school I had a well paying full time job. Throughout this process I cut back hours, and released a lot of the responsibility that I had at the firm I was working for. Perhaps I was a positive catalyst at my old job, because as I became less involved the course of the firm took a different direction, and money became sparse. I left this job in November, mainly due to financial instability and my employer’s inability to pay me consistently. I feel that I a lot of what has happened to this point is the result of my desire to accelerate my degree program and become a lawyer a year earlier.

Nothing in life is free.

The fall of this final semester, however, awarded me a brilliant and fantastic opportunity that I would not have been able to undertake had I stuck to the night-only 4 year plan. Many schools thought out the country and the States that they’re in have programs that allow third year students with certain qualifications to practice in the non-profit areas in the local communities. Depending upon the practice areas, this may include low-income family law clinics, social security disability, immigration, or even criminal law though the State’s Attorney and Public Defender offices in the State. I was fortunate enough to be selected (it’s a lottery, so luck as much as anything else) to participate in the criminal law clinic, and under part of Maryland’s rule for admission became a lawyer within the confines of the Cecil County Public Defender’s office from August 2013 through January 2014. Due to scheduling issues with school that semester, most specifically the classroom component to this clinical experience, most of the work I was involved in was in the District Court. It was great experience, none the less, and I was able to work with hundreds of clients and hundreds of cases. Some I managed to have dropped completely, or get really good offers to plea for the clients so that they would be able to move past the infraction that I was representing them for and continue their lives with an opportunity for a clean criminal record.
It was only until December that I was able to do any real work in the Circuit Court. Many of the district court cases resolved in what is referred to as a “prayer for jury trial.” In Maryland, for those unfamiliar, there are two trial courts. The District Court is mainly the misdemeanor trial court, with no juries. There are some special felonies that can be tried in the District Court as well, but most of those are Circuit Court Cases. Also, any charges where the maximum penalty exceeds 90 days incarceration give the defendant the automatic right to request that their case be moved from the District Court to the Circuit Court, for a jury trial. Most of the cases taking this course do not actually result in filling the jury box with 12 citizens, but the mechanism is to request such a right. Often times this strategy is employed to get what is a big fish in a small pond into a larger pond, that is to say get a case into a court where they handle much more serious matters. Usually the plea arrangements are more favorable in the Circuit Court. Sometimes the strategy is one in which to buy time. Nearing the holidays defendants who know that they are likely to do jail time will pray a jury trial just to stay out of detention until after the holidays. Homeless defendants often will take pleas around these colder months for the purposes of being indoors when the adverse weather conditions may cause permanent injury or even death. In many cases defendant is charged with some violation involving the status of their driving privileges. For them, the delay offered in the jury trial scheduling will allow them to have their license reinstated or at least have taken substantial steps in the process before their trial date.

Sometimes, though, these cases go to trial.

When I first began this clinical experience, one of the “goals” expressed by the professors overseeing the clinic to the supervisor of the public defender’s office was that I would try 5 contested cases throughout the semester. My supervisor balked at this notion, doubting that in the time frame I was going to be there that the entire office was unlikely to try more than 5 contested cases, throughout the entire office! Finally, though, in January 2014 I had my hands on a case that the facts were disputed and the State wasn’t making an offer that my client wanted to take. It was finally, after all of this, time to fill the box and get down to business. Unlike many lawyers, in my observation, I want a trial. I want to fill the box, I want to do the work. Probably not limited to lawyers, but most in my experience are looking to go the path of least resistance. Get their money for a good plea deal and move on. More time handling a case means less money overall, or less time spent handling another case. Plus, I guess some people are scared to try cases. I’m wired differently, I suppose. I didn’t go to law school to not be a lawyer. I had a good job, a high paying job. I was making more money than most first year associates in my job. I could have gone on doing that, making more and more money each year, not being a lawyer. However, I would have been confined to the office, and not given the opportunity to try cases.

This is what I want to do.

It’s tough to try a case. Not so much the trial aspect of trying the case, but getting a case actually to go to trial. I’ve often thought, in criminal law, that any case that is worth trying is bad enough that the state should be dropping the case. Throughout the semester, at least in the district court, I prepared to try a lot of cases. I was ready to go. Then, when showing up to court the day of trial, something went wrong on the State’s side. They looked at their file, their witness didn’t show up, or they made a good enough deal that the client wanted to take it and move on. Every case I thought I was going to get to try, went away.
I’m not a glutton for pain or punishment. I advised each client of the benefits and downfalls of any plea deal offered. I want what is in the best interest of the client, and will continue to do so once I become a lawyer. The client rules the day. Fortunately for me I had a guy who didn’t want any offer, even a really good offer up to the point where we were about to select jurors.

I got my trial.

It went almost exactly as I thought it would. I had prepared for some time for this case, knew there was a likelihood that a jury would find my guy guilty. However, there were a lot of inaccuracies and discrepancies in the accusing victim’s statement and story that I felt the case was worth trying. I was incredibly happy with how the trial went. I felt that I highlighted all of the inaccuracies/discrepancies that I wanted to bring the jury’s attention to. I personally did not feel that there was enough evidence to convict my client.

The jury disagreed with me.

Such is life. My guy was found guilty. I didn’t know how I’d feel if I got a guilty verdict. I didn’t know if it would be discouraging to me, make me shy away from trials, or whatever. None of this has happened. Unfortunately my time as a student attorney is over. My carriage turned into a pumpkin last friday afternoon, and I am back to civilian life…for now. One semester of law school to go. Graduation in May, bar exam in July, and assuming all goes as planned, admission to practice in December 2014. Then I will have far less restrictions in my effort to try more cases.

No doubt, one day, I will become a little more jaded, a little less enamored with the idea of going to trial. I think the goal for me needs to avoid this and delay these feelings at all cost. I need to be conscious of the fact that the practice of law is referred to as the “practice” of law for a reason. Looking back on the trial, there may have been some minor things that I would have done a little differently. Facts or occurrences that I may have emphasized a little more or a little less. None of which I feel would have turned the case, but I would be foolish to think that I couldn’t have done better, made the jury deliberate longer. My client was happy with the trial, not necessarily the outcome, but he knows that we put it all on the table. I had prepped with the client about the case several times. He knew what I planned to do, agreed with it, and felt that it was done the way we planned. He even thanked me again the next day for the effort when he had to show back up at the courthouse for a pre-sentencing investigation.

It is possible that in sentencing this guy is offered probation before judgment at the culmination of any incarceration given by the court. I feel good about this. If the guy didn’t do it, then he has a chance to earn a clean record after he does his time.

I’m hungry to practice. Hungry to be in the mix. I have another trial advocacy course in the spring, and lobbied with the school to allow me to extend my Rule 16 placement.

My time will come.

and in just the blink of an eye….

The last time that I blogged was a week into the semester. I had begun my clinical course, and was thrown into the fire when an attorney called in sick. Time has flown by, and we are just a few weeks until the end of the semester. This semester has blown by. It literally seems like only yesterday that I handled my first case on the record, and now I’ve handled over a hundred.

No trials yet, which is somewhat disappointing, but somewhat expected given the court that i’m working in and the lack of “volume” of cases. A lot of counties in Maryland have courts with 30 or 40 cases on the morning or afternoon docket for each of 4 or 5 or sometimes more courtrooms. Baltimore City has 3 separate district court houses for criminal matters, and a completely separate 4th court for civil matters in the district court. In Cecil County the morning docket is about 20-30 cases total (for the state) in each of 2 courtrooms. This is a mix of criminal and serious traffic matters. In the afternoon, many times there is only one courtroom handling serious traffic and criminal, the other is either closed or handling speeding tickets and other payable traffic matters.

I have had a great experience, working with clients and preparing cases for the potential of trial. In doing so, I have learned that almost any case that is worth putting on trial for the defense, isn’t particularly good for the State. What I have learned without doubt, is that preparation on the defense side often pushes these cases into “worth dropping charges” as far as the State is concerned.

I have realized that the most important asset that a good attorney often has is preparation. Not that it took any time or effort to come to this conclusion, but seeing this in action is huge. Unlike the State’s Attorney, you actually have access to your client. You can meet with them, get at least their side of the story, and pick it apart from there. Often times the ASA only has a police report, limited access to the officer who filed the report (but didn’t witness the offense) and if there is any level of innocence on the part of your client, you have the advantage and ability to find it.

The semester has so far proven to be a great learning experience as far as client advocacy is concerned, and really gaining a comfort level in the courtroom.

I am not looking forward to it ending. While it’ll be another chapter closed, and another step closer to graduation and admission to the bar, it’ll be the bench mark to what should be one full calendar year of me not being in the courtroom on the record. This will be the sad part of the story.

UNSTOPPABLE REBEL FORCE

It’s on.

Tomorrow I will start taking on some cases. While I will start with some soft-balls, stets and noelle prosqui, it’s time to start getting the feet wet. The goal is to become an all-out litigation machine by the end of this semester. I am already enrolled in trial boot-camp, so to speak. Trial advocacy class kicks into high gear next week when we have direct and cross examinations to prepare and to be critiqued upon. This will continue all semester, polishing the basic skills of setting a theme, getting the story to the jury, and challenging witnesses and their testimony.

Brilliant.

The clinic, while I will be taking on baby cases in the beginning, will have similar training in the classroom component. I am also learning the “rules” aspect of both criminal and civil cases in Maryland in my other 2 classes.

Let’s win.

Yeah, the trial team I was on last year now has 2 full teams from our school, and the gloves come off around September 9th when the competition problem is released.

It’s time to crush it and become a complete machine by November 16th competition date, and beyond.

It is time to bring back the tag I put on the Ravens Superbowl run last season: Unstoppable Rebel Force.

 

Officially sworn in today!

It’s official, I’m a lawyer* under Maryland’s Rule 16. The asterisk is there due to the fact that I’m now an attorney in limited capacity. This semester I will be working under the supervision of the Office of the Public Defender in Cecil County, Maryland.

This means that 2 days a week I’ll be in the Public Defender’s office, with cases, clients and actually be in court.

Very exciting, but I’m not a full on lawyer.

First, this only exists within the specific supervision at the OPD. It ends when final exams end. I also cannot give you legal advice on any other matters or situations that you may be dealing with. Also, nothing on this website has changed, or will. Nothing on this site should or can be seen as legal advice, on any topic, no matter how close to a situation you may be dealing with is.

 

Good times, and limited info will be updated as possible.

 

Looks like a good year coming up

Today I learned something new and great. As you may know, I will be enrolled in the UB Law Clinic program, where under Maryland Rules for admission 16(which apparently is going to change) I will be practicing law through the school, and under the supervision of the public defender’s office. This is different from my internship, as I will actually be taking on a docket of cases 2-3 days/week and pleading cases, trying cases, counseling clients, whatever needs to be done.

I had hoped that I would be able to get lucky enough to take the clinic program again the the spring, chew up 6 more credits and continue practicing 2-3 days/week, but an even better option may be on the horizon. Apparently, as the rule number is changing, so are some of the provisions. It may be possible for me to enroll in an “internship” in the spring, get credit, and actually practice under rule 16(or whatever the number will be moving forward).

This excites me greatly.

Just over 2 weeks (and another year) left!

So last night my wife, who might be counting down to the end of law school more intensely than I, did the math and advised me that as of this wednesday there are only 2 weeks left in this summer schedule, then a final exam of course.

Although this is exciting, for the time being, I still have 2 fairly full semesters left in my law school career.

Positives: This fall I’m only taking “classes that matter.”

Negatives: It’s still another year of working part-time and parenting part-time.

My classes for the fall include:

Criminal Practice Clinic, which basically means going and being a public defender 2 days/week- Under rule 16 in Maryland I will actually be an attorney within the confines of this program.

Maryland Criminal Practice- If this isn’t an extension of the previous, I don’t know what is.

Trial Advocacy- I already spoke to the professor. There is a book of fact patterns, we break out and do direct and cross examinations, then we critique and move onto the next.

Maryland Civil Procedure- This may not be exciting, but its the backbone of what I do day to day in my real job. Somewhat important.

Advanced Legal Research- I will independently, with an advisor, write a 20-25 page law review type comment. I’ve already begun work on this

I will also take part in the ABA Labor & Employment trial team again.

Should be an incredibly busy schedule, but it sets me up to only need 11 credits in the spring. Since I can get credit for the ABA labor & employment trial team, I may bump the ALR to the spring, and really only need to take 9 classroom credits, but if I do this I will have 2 writing classes to take in the spring. These 2 writing classes are all I have left in my “required courses”

Should be a busy, but rewarding fall…and a somewhat more laid back spring, then….bar prep!

Foreign Jurisdiction Law Clerk: Part 3

State v. Dezso, 512 N.W.2d 877 (This is an independent analysis of the case, not shepardized)

Routine-ish traffic stop with some subsequent shenanigans by the boys in blue up for debate here as we ruffle the feathers of the 4th amendment yet again. Hero in this case is traveling from Michigan to California for work, passing through the lovely land of ten thousand lakes when he is pulled over for speeding. So far so good, and this was January so I will assume that its par for the course in Minnesota to invite your pulled over guest into your squad car when its cold outside?

Officer did a license check and verified that Michigan license was good. Then he asked the defendant if he had anything in the car, asked if he could search. Ultimately he felt that something was fishy about the guy’s wallet, and took a look inside. He found a paper with blotter acid (LSD, dude) and arrested the guy. Defendant lost suppression hearing, and intermediate appellate court upheld the denial. Supreme court says not so fast, and cites one of my favorite ambiguous theories of law “whether a reasonable person would have felt free to decline the officer[‘s] requests or otherwise terminate the encounter.” Florida v. Bostick, 501 U.S. 429, 115 L. Ed. 2d 389, 111 S.Ct. 2382, 2387 (1991).

In Maryland, there is a case Ferris v. State, 355 Md. 356 in which this reasoning is rested with a totality of the circumstances test, encompassing a myriad of factors that could lend itself to the defendant feeling intimidated, or feeling free to decline the search, consent, etc. Minnesota seems to have a similar set of circumstances that they use as a test: “the nature of the encounter, the kind of person the defendant is, and what was said and how it was said. The encounter in this case took place at night, on a highway, and in the front seat of a parked squad car”

 

The court does not find that the circumstances lend themselves to the state meeting the burden of proof to sustain such findings, and reverse the prior decisions of the trial and appellate court.

Foreign Jurisdiction Law Clerk: Part 2

State v. Barajas, 817 N.W.2d 204 (This is an independent analysis of the case, not shepardized)

I’m starting to get a good feel for the drug culture in Minnesota after reading another 4th amendment case from their Supreme court. So here we have another meth case, good times. Don’t these kids know what this stuff does to your brain cells? Maybe the long term cognitive impairment was there before the meth…

Regardless, in this case our hero was a cell phone collector who was also squatting in an unoccupied apartment. Police received a report of his squatting from the landlord, and upon investigation found defendant and his cell phone collection. He didnt’s speak much english, and upon contacting a border patrol agent determined him to be unlawfully in the country, and detained him. Border patrol advised the offices that defendant may be involved in drug trafficking, which was apparently enough to create probable cause to search the apartment. With this apparent probable cause and consent of the landlord(which is probably all they really needed), the apartment was searched and “The police recovered five plastic bags containing a white crystal substance, a digital scale, powdered milk, salt, an empty sugar container, motor oil, razor blades, an “SD card” that can be physically moved from one cellular telephone to another for the purpose of transferring data, a fourth cellular telephone, and packaging materials, including tin foil, plastic bags, plastic wrap, and electrical tape.”

He was charged with possession with intent to distribute. He moved to suppress photographs taken from his cell phone(s) and such motion was granted due to the overly invasive nature of the search: “intentional invasion into the contents of an electronic device” by the police, which requires an “intentional search . . . or other deliberate key strikes,” must be supported by either a warrant or an exception to the warrant requirement. The district court also concluded that Officer Schroeder’s warrantless search of Barajas’s cellular telephone did not fall under the search-incident-to-arrest exception to the warrant requirement because no exigency existed, Barajas had already been removed from the premises at the time of the search, and the telephone was not contraband, an instrumentality of trespassing, or a weapon affecting officer safety.” This quote encompasses almost the entire first half of my con crim pro 1 class. Good work Minnesota courts!

However, apparently our hero had signed a consent form to have the phones searched. Although defendant did not speak much english, it was apparently OK with the court that he sign a consent form entirely in english. I’m certain the local officers in Moorhead explained the form and he signed it intelligently and knowingly of its purpose and extent of the consent. All of this aside, it was apparently good enough for the court to reconsider the suppression motion and allow the photos. (I recant my previous praise to the court).

With the evidence in, trial commenced, and defendant was found guilty by a jury of his “peers.” Appeal ensued.

It must be easy to brief cases as a Minnesota law student. If its not, and I’m just reading softball opinions, my apologies. The court breaks down the issues in the opinion:

ISSUES

I. Did the district court err by denying appellant’s motion to suppress evidence obtained by the police during a warrantless search of appellant’s cellular telephone?

II. Did the district court err by admitting in evidence photographs recovered from appellant’s cellular telephone that were irrelevant and unfairly prejudicial?

III. Did the district court err by admitting in evidence drug-courier-profile testimony?

 

How sweet is that? I mean, this case continues on as essentially a brief of itself. This case results in what is essentially a “moral victory” and one more important to the search guidelines for this type of evidence. “An individual has a reasonable expectation of privacy in the concealed contents of a cellular telephone. Because appellant’s cellular telephone concealed the photographs stored within the telephone’s internal memory, the investigating officer was required to obtain a warrant before searching that telephone.” Basically, he won, but he lost. The search was no good, but the district court error was not only harmless, there was enough other corroborating evidence to convict. However this does seem to solidify, if there were no such cases before it, that a warrant or real informed consent is required before snooping through someone’s cell phone photos.

Foreign Jurisdiction Law Clerk: Part 1

State v. Diede, 795 N.W.2d 836. (This is an independent analysis of the case, not shepardized)

This is a 2011 Minnesota Supreme Court case involving an apparent 4th amendment violation. Trial court and intermediate appellate court had denied defendant’s motion to suppress evidence found on defendant. Defendant was driver of the vehicle, which had stopped to drop off a passenger, a known drug “aficionado,” but was originally followed due to the license place not matching the vehicle in question. The passenger, who got out of the vehicle and allegedly appeared to throw something back into the vehicle, was arrested based on his prior dealings with drugs and police. Defendant got out of the car, and police told her to stay there, they had to ask her something. They then asked her to turn out her pockets, revealing a cigarette packet, which ultimately contained a baggie of meth. Minnesota law holds that “a police officer may temporarily detain a suspect without probable cause if (1) “the stop was justified at its inception” by reasonable articulable suspicion, and (2) “the actions of the police during the stop were reasonably related to and justified by the circumstances that gave rise to the stop in the first place.” State v. Askerooth,681 N.W.2d 353, 364 (Minn. 2004) (citing Terry, 392 U.S. at 19-21). Evidence obtained as a result of a seizure without reasonable suspicion must be suppressed.”

In the initial appeal to this case to the intermediate court, the parties stipulated to the facts, and the supreme court reviewed as such, holding “[t]he only basis in the record for suspecting that anyone possessed drugs was Detective Jensen’s assertion that he had probable cause to arrest Hanson for previous drug sales. But the record does not describe the foundation of that probable cause. Nor does it indicate any objectively articulable facts that would have allowed the police to reasonably infer that Hanson was carrying drugs at the time of his arrest on April 22. The record also does not indicate whether Hanson recognized Detective Jensen as a law enforcement officer, which would be necessary to support the officer’s suspicion that Hanson left something in the truck in response to the presence of the police. The record does not indicate that any of the officers saw Diede reach for anything while she was in the truck or that the officers looked into the truck to see if the object they saw Hanson leave there had been removed from the truck.”

 

The state leans on some key 4th amendment cases, but the court quickly distinguishes both: Maryland v. Pringle, 540 U.S. 366, 124 S. Ct. 795, 157 L. Ed. 2d 769 (2003), and Wyoming v. Houghton, 526 U.S. 295, 119 S. Ct. 1297, 143 L. Ed. 2d 408 (1999). “In both Houghton and Pringle, the police had already discovered drugs or drug paraphernalia inside the car.”

“Neither case supports the contention that the police may reasonably suspect a person of possessing a controlled substance merely because she is in the same truck as a suspected drug dealer who appears to leave something in the truck as he is getting out of it. Cf.United States v. Di Re, 332 U.S. 581, 586-87, 68 S. Ct. 222, 92 L. Ed. 210 (1948) (holding that probable cause to search a vehicle does not justify searching a passenger).”

 

The state also alternatively argues that the search of defendant was an extension of the investigation of the mismatched plates, and the court quickly drops this argument like a bad habit, largely in part to it being absolute BS(Id at no shit, sherlock).

And….for the part we really care about “Because Detective Jensen did not have a reasonable articulable suspicion that Diede was engaged in drug-related criminal activity, his request to search Diede’s cigarette package exceeded the scope of the initial temporary investigative seizure. Consequently, the district court erred when it denied Diede’s motion to suppress the methamphetamine evidence discovered in the cigarette package.”

Court also found that Diede did not consent to the search, despite the state arguing that she did, she said no clearly several times before eventually submitting to the search of the cigarette package, et al.

Court finally refuted the argument that the police would have inevitably found the contraband because they “could have” arrested her for the mismatched plates.

 

 

 

Maryland v. King: my initial reaction

Oh yes, DNA swabs for the purpose of identification from arrestees is acceptable under the 4th amendment.

Wait, what? I am baffled at what happened at the Supreme Court yesterday.

It is already lawful to take DNA swabs and compare to the database of other crimes AFTER one enters a guilty plea or is found guilty. That makes more sense to me, but to do so with someone presumed innocent is somewhat baffling. Furthermore, the majority masking this important for identification purposes is outright insane! There is no way in which the DNA test was used in King to identify him, that was already done by other evidence. They had King in custody, so why not get a warrant for his DNA? Oh yeah, because there is not probable cause for which said warrant would be granted! So my question is: if you cannot get a warrant, why is it ok to do the search without the warrant?

I am hardly a constitutional scholar. I am a second year law student, almost third. Rising 3L? Who cares, labels are for groceries…. However, I do know that there are some limits what is and isn’t acceptable in situations like this. Right now I’m looking at Winston v. Lee, 470 U.S. 753 that says “Such an intrusion would not be reasonable […] given the state’s failure ‘to demonstrate a compelling need for it.’ no such need was deemed present, as the state had considerable other evidence connecting defendant with the [crime]” in regard to the probable cause to remove a bullet that was lodged in the defendant, which was fired by a victim in a robbery, potentially corroborating his involvement in the crime. No doubt, the removal of the bullet instance can be distinguished, perhaps, because it is an entry into the body, and some will argue that swabbing the inside of the cheek for DNA is not, but I’m not sure I like that argument either. Regardless, the point is that the evidence to be gained by the search is necessary to prove the crime. Not to prove any crime.

I also see this as quite different than Schmerber v. California where the courts first developed the test utilized in Winston. This was the case where they had a DUI suspect and they wanted to draw blood to test for blood alcohol content. Decidedly different here, what is acceptable is based upon the evanescence of the evidence. In an hour, two hours, or even more the alcohol content would greatly dissipate. I’m not sure King, or any other defendant for that matter, has chameleon DNA that may change or be altered between his arrest to his sentencing.

Is there a public policy reason for DNA testing, cross referencing, and potentially solving other crimes: yes.

Should the above DNA testing be constitutional, legal, etc: sure.

How now, brown cow? Well I think its a simple process, like all law enforcement:

1) Do you job right (search, seizure, etc)

2) Get the right guy

3) Get a guilty plea or verdict

4) Get your DNA sample

5) Win, constitutionally

Well, now that Maryland v. King is here you can skip steps 1-3, but I digress.