Painting the picture out of puzzle pieces

In a previous post I mentioned the work that my office and I do to assist clients who were recently charged with crimes was like painting a picture for the State when previously all that exists otherwise are puzzle pieces. When the State is assigned a case, and when that specific Assistant State’s Attorney assigned to a case gets it, they’re also getting a large pile of other cases. With this obligation comes somewhat limited resources in their ability to track down all of the evidence and investigation for each case.

In many cases that my office handles, the charges were levied based on limited information at the time. The police have an obligation to protect the community against danger and potential danger. Sometimes this obligates them to charge someone with a crime on suspicion or mere probable cause. There is nothing improper about this practice. The lower burden of proof to arrest and/or charge someone helps prevent future instances of crime or potential crime. There is a much higher burden of proof to actually convict someone of the crime. If the higher burden existed to arrest, there really wouldn’t be a need for the judicial system we know today. It wouldn’t be so trial focused, it would be far more appeal focused. The stoppage of an alleged action by charging serves the community to discontinue that act, in most instances.

What I do in my office for my clients is break down the situations that upon charging either don’t make sense, or do not actually rise to the level of a crime committed.

In a recent case, my client was charged with TA 16-303(c) for driving on a suspended license. At the time my client was pulled over, the MVA here in Maryland showed his license as being suspended. The officer did not have access to the back story or the details of how my client got to where he was at that point. That isn’t the officer’s job. The officer was proper, given the information available to him at the time, in issuing my client such a citation.

The story, however, was quite different once all of the details were filled in. In Maryland, charges such as the 16-303(c) citation require a degree of notice on the part of the driver with suspended privileges. In this case, there was a mix up with one of those fun speeding camera/traffic light tickets in another state. That citation was paid, but the notice that it was satisfied was not sent to Maryland’s record division, but to the issuing state. My client received notice that his license “would be suspended by a certain date” to which he promptly responded to the issuing state, and was under the impression that everything was resolved.

Then he got pulled over, and cited for a jail able offense, when as far as he knew he was in full compliance with the law. He was in full compliance, the error causing his suspension was merely clerical and administrative.

Painting a picture out of puzzle pieces

At the trial date my job became to paint the picture for the prosecutor handling the docket that day. The groundwork that had been done ahead of time, putting into place the proper timeline for how my client had followed the law, and had done everything properly, caused the State to drop all charges against my client. Other than the turmoil of having to deal with the process, me, and the system generally, my client is back where he was supposed to be from square one, without charges against him, and no fines, court costs or jail time.

 

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.