DNA rendering by ynse

Even if DNA evidence proves crucial to cracking to case of a serial killer, the use of such evidence is outpacing laws regulating it.

DNA evidence was undeniably the key to the arrest and charging of Lonnie David Franklin Jr., believed to be the Grim Sleeper responsible for a string of slayings in Los Angeles between 1985 and 2007. Many will cite this use of DNA evidence in a high-profile serial murder case as one more reason to increase reliance on this important investigative tool. But in fact it's precisely at a moment like this when an investigative triumph can blind us to the dangers of expanding genetic surveillance.

There were actually three different uses of DNA evidence in the Grim Sleeper investigation that we should be concerned about. They all turn basic assumptions about our criminal justice system on their heads. The first is the use of familial DNA searches. Most of the time, investigators search state DNA databases to find a complete match linking a particular person's DNA profile to crime scene evidence. Familial matches are different. A "hit" in the database establishes definitively that the person in the database is not the wanted suspect, but suggests that it is one of his or her relatives.

Why is this problematic? Keep in mind that in usual police "searches," there must be individualized probable cause for suspicion, as required by the 4th Amendment. With familial searches, the only reason the police identify their suspect is because he is genetically related to someone in a DNA database. If that sounds like guilt by association, it is. Why should the mere inclusion of one of your family members in a DNA database mean that you might be a target of an investigation one day?

The second investigative technique used in the Grim Sleeper investigation was the use of "abandoned" or "discarded" DNA. We all leave DNA on used coffee cups, smoked cigarettes and many other items on a daily basis. After the police turned their focus to Franklin, undercover police followed him until he left some of his DNA on a piece of pizza as well as silverware and a glass after a meal out.

Few rules govern the circumstances in which police can collect this involuntarily shed DNA. Police typically defend the practice by saying it produces results. Of course, when successful matches are found, the unrestrained collection of abandoned DNA sounds defensible. But what about all of the hunches that police might like to pursue in this way? Have we all silently consented to giving up our discarded DNA to the police?

The third use of DNA in the investigation is unlikely to receive much fanfare; it wasn't successful. Yet it is equally dangerous to civil liberties. Two years ago, LAPD vice officers arrested a number of suspected johns not as part of a crackdown on prostitution but rather for the purpose of collecting their DNA. (Many of the Grim Sleeper's victims were prostitutes.) Such a technique is known as a DNA dragnet. As of January 2009, Proposition 69 allows the state to collect DNA not just from those convicted of felonies but also from all people who have simply been arrested on suspicion of committing felonies. Atty. Gen. Jerry Brown's formal approval of familial searches is still limited to searching profiles of convicted felons in special cases, but it's not hard to imagine an expansion to all cases regardless of severity, and to arrestee profiles as well.

There's no doubt that DNA evidence gives the police an important tool. Without it, the Grim Sleeper case would probably be yet another unsolved case. The trouble is that we are rushing forward with these uses of DNA evidence with little consideration of the ever-increasing scope of genetic surveillance over our citizens. Many states that have not formalized their policies in these areas have taken note of what the police did in this case. What matters isn't just that this particular fish was caught; it's the ever-widening net over us.

Elizabeth Joh, a professor at the UC Davis School of Law, has written widely about DNA evidence, undercover policing and police privatization.

Cross-posted from the Los Angeles Times.

“The five law enforcers remain anonymous, and will be stationed behind a gun ported brick wall in the execution chamber. The executioners will be armed with .30-caliber rifles, four of which will be loaded with live rounds. The weapon carrying the blank round will be unknown to the law enforcers.”
Execution Procedures, Utah Dept. of Corrections

Ronnie Lee Gardner committed heinous acts condemned by all civilized people. Given a choice of methods of his own execution, he elected to face death by firing squad.

The procedures instituted by the state suggest more ambivalence about this procedure than one might have expected. The five peace officers called upon to perform this civic duty are to remain anonymous. One can understand that, given possible future shifts in public opinion about the death penalty, it might make sense to hold the executioner anonymous. (This differs sharply, of course, from systems that hold judges anonymous.)

The more intriguing decision is the fact that information is withheld from the executioners themselves. None of the five officers knows if he or she is the one who helped cause the death or if his or her rifle carried a blank.

None of the five law enforcers knows if he or she is indeed an executioner. Why does the State of Utah deny this information from these officers?

Co-authored with Raha Jorjani, Supervising Attorney and Lecturer in the UC Davis Immigration Law Clinic

Under the Immigration & Nationality Act (INA), conviction of an "aggravated felony" makes long-term permanent resident aliens ineligible for a form of discretionary relief from removal known as "cancellation of removal." Over the last two decades, Congress has slowly but surely expanded the definition of "aggravated felony" to punish immigrants convicted of crimes, revealing the deep unpopularity of "criminal aliens" among the public and policymakers. As a result, since 1996, the nation has deported hundreds of thousands of immigrants each year.

In 2006, the Court in Lopez v. Gonzales, 549 U.S. 47 (2006) held that a state felony drug possession conviction that would not have been a felony under federal law was not an "aggravated felony": Since "Congress generally treats possession alone as a misdemeanor whatever the amount," a possession conviction does not ordinarily constitute an "aggravated felony." Last Term, the Supreme Court decided three of four immigration cases in favor of the immigrant. The single victory for the government came in Nijhawan v. Holder, 129 S. Ct. 2294 (2009), in which the Court ruled that the immigration court correctly inquired into the underlying facts of a state fraud conviction in concluding that the monetary loss to the victims exceeded $10,000, which was necessary to make the crime an "aggravated felony" under the INA.

In Carachuri-Rosendo v. Holder, the Court must address the complex question whether a state misdemeanor conviction for drug possession amounts to an aggravated felony. A lawful permanent resident with four U.S. citizen children, Jose Angel Carachuri-Rosendo entered the United States from Mexico in 1993. He was convicted in the Texas courts for (1) misdemeanor possession of marijuana, for which he was sentenced to 20 days in jail; and (2) misdemeanor possession of one tablet of Xanax, for which he was sentenced to ten days in jail.

Under federal law, when a person is convicted of possessing a controlled substance after a previous drug conviction, the prosecutor may seek a recidivist enhancement, which, if established, converts what ordinarily would be a misdemeanor into a felony. For such an enhancement, federal law requires adherence to rigorous procedural safeguards, including a formal charge of a recidivist enhancement and an opportunity for the defendant to challenge the prior conviction. In this instance, the prosecutor in the second drug possession prosecution did not pursue any recidivist enhancements.

Because Carachuri-Rosendo could have been prosecuted for a felony on the second drug charge in federal court, the immigration court found that Carachuri-Rosendo was an aggravated felon and ineligible for cancellation. Although uneasy with the result, the Board of Immigration Appeals found that Fifth Circuit precedent required a finding that he was an aggravated felon. In an opinion by Judge Edith Jones, the U.S. Court of Appeals for the Fifth Circuit denied Carachuri-Rosendo's petition for review. The Supreme Court granted certiorari to resolve a conflict among the circuits.

In the Supreme Court, Carachuri-Rosendo argues that, because the state court did not make a determination of recidivism and failed to adhere to the procedural protections under federal law, his second misdemeanor possession conviction is not an "aggravated felony." The fact that he could have been convicted of recidivist possession was not sufficient for concluding that he had been convicted of an aggravated felony. Carachuri-Rosendo further argues that the "rule of lenity" requires that any statutory ambiguity be interpreted in his favor.

The U.S. government takes the position that Carachuri-Rosendo's second misdemeanor conviction for possession is in fact an "aggravated felony" because the offense could have been punishable as a felony under federal law. According to the United States, Congress's judgment controls; as stated at oral argument, "Congress has taken a hard line over the past 20 years on criminal aliens, particularly recidivist criminal aliens ...."

The U.S. government's position, if accepted by the Court, would have an incredible result. It would mean that a noncitizen with a federal misdemeanor possession conviction -- if, for example, the U.S. Attorney decided not to pursue recidivist enhancement charges -- could nevertheless have been characterized as guilty of an aggravated felony under the immigration laws because such charges could have been brought if the case had been prosecuted in federal court. Such a result would contradict Lopez v. Gonzales, which held that a crime must be a felony under federal law to constitute an aggravated felony.

On March 31, Sri Srinivasan, a partner with O'Melveny & Myers LLP, argued Carachuri-Rosendo's case before the Supreme Court for Carachuri-Rosendo. Nicole Saharsky, Assistant to the Solicitor General, argued for the United States. The Justices aggressively questioned both sides. In particular, Justice Breyer, the author of the majority opinion in Nijhawan v. Holder, peppered counsel with questions about the complex matrix of state and federal statutes at issue in the case and the applicability of the Court's past decisions. To make clear the harsh treatment of criminals under the U.S. immigration laws, Justice Breyer offered a hypothetical of how the conviction of the harmless "pussycat burglar" stealing an innocuous "pop gun" would be classified as an aggravated felon.

It is difficult to predict how the Supreme Court will decide Carachuri-Rosendo v. Holder. However, although "criminal aliens" are unpopular with the public and Congress, the Roberts Court -- conservative as it is -- has been willing to rule in favor of immigrants when the government has gone too far. Indeed, immigrants have prevailed in two cases decided by the Court this Term. In Kucana v. Holder, 130 S. Ct. 827 (2010), the Court unanimously held that congressional court-stripping provisions did not bar judicial review of the Attorney General's discretionary decision to reopen a removal proceeding. In Padilla v. Kentucky, 2010 U.S. LEXIS 2928 (Mar. 31, 2010), the Court, in a landmark decision, ruled that a noncitizen could base an ineffective assistance of counsel claim on the failure to advise him of the immigration consequences of a guilty plea in a drug case.

In Carachuri-Rosendo v. Holder, the U.S. government's claim that a state misdemeanor drug possession conviction somehow amounts to an "aggravated felony" drug trafficking offense under the U.S. immigration laws goes too far. At oral argument, Justice Ginsburg correctly observed the government's interpretation would have an "absurd result," deporting a long term resident for two misdemeanor drug possession convictions. The U.S. government's tortured interpretation would have a devastating impact on immigrant communities, especially long-time residents with deep family and community ties to the United States. Indeed, Carachuri-Rosendo faces banishment from America - and four U.S. citizen children -- for a crime deemed so minor by the court that it sentenced him to a measly ten days in jail. For a minor, non-violent misdemeanor to result in, as the Supreme Court has put it, "the loss of all that makes life worth living," violates the principles of proportionality and justice embraced by democratic societies.

Cross posted from American Constitution Society Blog.

[Image via M J M.]

Next Monday, the Supreme Court hears oral arguments in U.S. v. Skilling (yes, the Enron guy).  This is like the Winter Olympics for white-collar crime, because it challenges the constitutionality of  an important and controversial prosecutorial tool.  The Court is clearly interested in this statute, as it's the subject of not one, but two other cases this term. 

The statute at issue, part of federal mail fraud law, is the so-called  “honest services” statute (18 USC 1346). Congress passed it in 1988 to overrule McNally v. U.S., a 1987 Supreme Court’s decision that the mail fraud statute (18 USC 1341) punished only frauds that deprived the victim of money or property.  Prior to that case, many lower federal courts had accepted prosecutors’ argument that mail fraud included the denial of “honest services.”    

By writing the statute, Congress didn’t really clarify much, however.  1346 only says mail fraud includes the theft of “honest services”--it doesn’t define “honest services.”  Unfortunately, the pre-1987 courts that accepted the “honest services” theory didn’t clearly define it either.

The law of theft has historically evolved from covering only violent takings of property to covering deceptive takings of property to covering deception that has intangible and abstract effects—this last category is of course hard to define.  On the one hand, that shows law has become more flexible and attuned to reality.  On the other, the government may be unfairly expanding its power to punish.

Of the three "honest services" cases this term, Skilling is the big one because a. he's the Enron guy; and b. the other two cases present more specific challenges to the statute. 

Kind of.

Actually, Skilling’s original petition to the Supreme Court also made a more narrowly focused challenge to the statute.  So if the Court uses Skilling to decide the broader question of whether the statute is unconstitutionally vague, it may come in for criticism of being --gasp!-- an “activist” Court—something it was accused of when it invalidated the corporate campaign finance statute in its recent Citizens United v. FEC decision (my thoughts on other matters in that case are here). 

I have been intrigued by the attention national media have given this week to a criminal trial in West Texas.  Ann Mitchell, an administrative nurse at the community hospital in Winkler County, went on trial in state court charged with "misuse of official information," a third-degree felony that carried a possible fine of $10,000 and up to 10 years in prison.  The charges stemmed from an anonymous letter that Mitchell and another administrative nurse wrote to the Texas Medical Board.  In it, they called the Board's attention to irregularities in how Dr. Rolando G. Arafiles was practicing medicine at the hospital where they worked.  The nature of the irregularities and report are described in a New York Times story as "a pattern of improper prescribing and surgical procedures — including a failed skin graft that Dr. Arafiles performed in the emergency room, without surgical privileges. He also sutured a rubber tip to a patient’s crushed finger for protection, an unconventional remedy that was later flagged as inappropriate by the Texas Department of State Health Services."  The nurses believed they were under a professional obligation to make the report, but following it, the Winkler County Sheriff's Office seized their work computers and arrested them.  The local prosecutor subsequently charged the nurses with the third-degree felony, and the Winkler County Hospital fired them.  Those consequences apparently unfolded after the Medical Board notified Dr. Arafiles of the anonymous complaint and he told his "friend, the Winkler County sheriff, that he was being harassed. The sheriff, an admiring patient who credits the doctor with saving him after a heart attack, obtained a search warrant to seize the two nurses’ work computers and found the letter."  The prosecutor says that Mrs. Mitchell has a history of making "inflammatory" statements about Dr. Arafiles and that she did not make the report in good faith.  To establish the felony charged, however, the State must prove that she disseminated confidential information for a "nongovernmental purpose" with intent to harm Dr. Arafiles. 

The prosecutor dropped charges against Mrs. Mitchell's colleague just before the case went to trial.  A jury in neighboring Andrews County acquitted Mrs. Mitchell on Thursday.  The jury voted unanimously on the first ballot to acquit the nurse and questioned why she had ever been arrested.  Read more here.

New York Times reporter Kevin Sack observed that "seeming conflicts of interest are as abundant as the cattle grazing among the pump jacks and mesquite" in the small town of Kermit, population 5,714, where these events unfolded.  Indeed, subsequent reports reveal an additional conflict:  according to filings in a federal case the nurses have brought against Arafiles, the Sheriff, and Winkler County, the Sheriff is a partner in Dr. Arafiles' herbal supplement business, a business that Arafiles promoted in emails to patients.   

Despite the obscure locale of these events--or perhaps because of it--the New York Times published three items about them last week.  The paper reported last week-end on the impending trial of Mrs. Mitchell, and later in the week it reported the not-guilty verdict.  In between, it published an editorial commenting on apparent flaws in the prosecution and the chilling effect it might have on whistle-blowing.  

The first NYT story about these events inspired this blog post on my Legal Ruralism blog, and I was especially intrigued that the story attracted as much attention as it did.  On the day it appeared, it rose as high as number 2 on the "most emailed" list at nytimes.com, and it stayed on the top-10 list for nearly two days.  I attributed the high degree of interest to the broad headline, "Nurse to Stand Trial for Reporting Doctor."  Many doctors and nurses all over country were presumably taking note of this unusual event and sharing the news.  But the New York Times reporting and editorial suggest several ways in which this story is distinctly "rural" or "small-town." In addition to referring to the apparent conflicts of interest, Sack's reporting refers to the "stained reputations" of the nurses and how "heads turn when they walked into local lunch spots."  He also reports the practical difficulties that rural hospitals like that in Winkler County have in attracting and retaining physicians; indeed, Dr. Arafiles came to the hospital in 2008 with a restriction already on his medical license.  The trial was moved to neighboring Andrews County because it "polarized the community."  Finally, the New York Times editorial suggests that "small-town 'justice'" was the problem.  

So, is there really something distinctly "rural" about this story, or could it happen anywhere? Clearly, it could happen anywhere, though I tend to agree with the Times' suggestion that the rural context facilitated this unusual prosecution. 

Rural sociologists and other scholars who write about rural-urban difference have discussed a number of factors apparently at play in these West Texas events.  These include lack of anonymity and conflicts of interest that sometimes result from it; rural disadvantage in terms of access to services such as medical care; a lack of checks and balances in rural local government and a related failure of local government to protect civil rights.  In this case, heightened reputational injury associated with lack of anonymity and the inability of the dismissed nurses to find replacement jobs because of the limited labor market presumably increased the damages they suffered.  This little case out of Kermit, Texas thus illustrates how various characteristics of rural places can be legally relevant in a variety of ways.  Some of the challenges associated with rural lack of anonymity were apparently mitigated by the change of venue.  Whether law and legal actors adequately respond to other challenges associated with rural places--such as those that seem to have aggravated the nurses' damages--may be evident when their case against the various officials is tried or settled.

Cross-posted to Legal Ruralism Blog.