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Privacy vs. Public Interest: Vermont Justices Weigh DNA Law Merits

  • At Vermont Law School in South Royalton yesterday, State Supreme Court Associate Justice Brian L. Burgess, left, asks a question during a hearing about the legality of collecting DNA information from defendants prior to conviction. (Valley News - Sarah Priestap)

    At Vermont Law School in South Royalton yesterday, State Supreme Court Associate Justice Brian L. Burgess, left, asks a question during a hearing about the legality of collecting DNA information from defendants prior to conviction. (Valley News - Sarah Priestap) Purchase photo reprints »

  • Vermont Law School students watch the proceeding of the state Supreme Court in South Royalton yesterday. (Valley News - Sarah Priestap)

    Vermont Law School students watch the proceeding of the state Supreme Court in South Royalton yesterday. (Valley News - Sarah Priestap) Purchase photo reprints »

  • Justice Beth Robinson asks question about DNA during the hearing. (Valley News - Sarah Priestap)

    Justice Beth Robinson asks question about DNA during the hearing. (Valley News - Sarah Priestap) Purchase photo reprints »

  • At Vermont Law School in South Royalton yesterday, State Supreme Court Associate Justice Brian L. Burgess, left, asks a question during a hearing about the legality of collecting DNA information from defendants prior to conviction. (Valley News - Sarah Priestap)
  • Vermont Law School students watch the proceeding of the state Supreme Court in South Royalton yesterday. (Valley News - Sarah Priestap)
  • Justice Beth Robinson asks question about DNA during the hearing. (Valley News - Sarah Priestap)

The Vermont Supreme Court yesterday weighed the constitutionality of a state law that allows authorities to collect DNA samples from defendants who have been charged, but not convicted, of felonies, touching on an issue that could affect hundreds of criminal cases pending in courtrooms across Vermont.

The State Attorney General’s Office asked justices to overturn lower court rulings that effectively blocked implementation of a state law passed in 2009 requiring the state to collect DNA samples from people who have been arrested by police and charged with a felony by a prosecutor.

Assistant Vermont Attorney General John Treadwell argued that requiring defendants to provide DNA samples is little different from taking fingerprints or imposing a curfew, which have long been declared legal.

“Arraignees are different,” Treadwell said. “They have entered the criminal justice system. A prosecutor has filed charges, probable cause has been found, and they have appeared publicly in court. They are no longer free citizens.”

But defense attorneys argue that their clients are entitled to the presumption of innocence, and should not be compelled to provide the government with personal information before they are found to have violated the law.

“We have some ability if we want to withdraw from the public and not be the focus of a police investigation,” Vermont Defender General staff attorney Josh O’Hara told the high court.

The case, which has been closely followed by prosecutors and defense attorneys across the state, was one of seven heard yesterday at Vermont Law School as part of the five-member court’s annual session on the South Royalton campus.

Justices yesterday directed their most pointed questions at Treadwell.

Justice John Dooley, who questioned the DNA collection law at several points, noted a seeming contradiction. The law calls for samples to be destroyed if people are found innocent, indicating that lawmakers did not want to penalize people who had been found to have committed no crime. Why, then, Dooley wondered, should the law require the collection of DNA before a person has been found guilty?

“Why is the outcome of guilt then relevant at all?” Dooley said. “Why is it relevant if a person is ultimately convicted?”

Treadwell contended that the extra protections did not make the law unconstitutional.

Dooley was not the only justice to question Treadwell.

“Arraignees are different because they still have the presumption of innocence, where a (convict) does not — shouldn’t that make a difference?” Justice Brian Burgess asked.

“It’s an imposition imposed on arraignees who are subject to limits on their (rights) that citizens at large are not subject to,” Treadwell said.

Justices also asked what harm would come of waiting to collect the DNA samples until a person was judged guilty.

“If it’s all in the future, why don’t you wait for conviction?” Justice Marilyn Skoglund asked. “Why are we doing it at arraignment?”

Treadwell eventually told justices that authorities hope to build a robust database of DNA samples, which could be able to help tie defendants to unsolved crimes.

“We don’t know who will ultimately be convicted of the felony,” Treadwell said.

The U.S. Supreme Court is currently weighing the same issue: Oral arguments were held in February in an appeal of a Maryland court’s decision to overturn a state law allowing for pre-conviction collection of DNA. U.S. Supreme Court experts said that justices seemed divided over the issue.

The Vermont Constitution is generally thought to provide stronger protections against government search and seizures than is guaranteed under the 4th Amendment of the U.S. Constitution. Vermont is one of 28 states that allow for pre-conviction DNA testing. New Hampshire is not among those states.

The law under challenge yesterday has quickly evolved as law enforcement agencies have increasingly sought to collect more DNA samples from more citizens.

In 2005, the state legislature required individuals convicted of a felony to submit a DNA sample. In 2008, the Vermont Supreme Court upheld that law in a 3-2 decision. (Dooley, Burgess and Chief Justice Paul Reiber were in the majority on that case. The dissenting votes came from a now retired justice and a temporary justice.)

In 2009, the law was expanded to include any individuals arraigned on a felony, as part of a series of criminal justice reforms that passed after the kidnapping, rape and murder of 12-year-old Brooke Bennett in Randolph.

But Vermont defense attorneys quickly mounted a legal challenge to the law in several lower courts, effectively triggering a state-wide halt to the collection of DNA from individuals charged with a felony crime.

In Orange and Windsor Counties, prosecutors for more than a year have requested at arraignments that DNA samples be taken from defendants, which defense attorneys have uniformly opposed. Judges issued “stays” on those requests, pending the Vermont Supreme Court’s ruling: If justices find the law constitutional, hundreds of defendants currently awaiting trial could be made to turn over DNA samples.

In an interview after arguments, Treadwell said he was uncertain how the state would manage the DNA collection process if the stay is lifted.

DNA samples are taken from a swab that collects saliva from the inside of the cheek. The genetic information is entered into both a statewide database and a national database maintained by the FBI.

The American Civil Liberties Union argues that authorities should obtain a search warrant from a judge before taking a DNA sample.

“It’s essentially a search and seizure, Fourth Amendment issue,” Vermont ACLU Executive Director Allen Gilbert said. “It’s a search of something from your body. You shouldn’t be taking evidence from people who haven’t been convicted of a crime yet. You don’t gather information on people that’s not relevant to the case without a warrant.”

Hovering over the debate are concerns over how evolving technology may expand what the government can learn from the collection of DNA samples in the future. Critics say the samples could allow experts to learn sensitive information about blood relatives, including medical issues. And The Atlantic magazine recently reported that security personnel collect drinking glasses and other items that President Obama has touched to prevent possible enemies from obtaining his genetic material, in addition to former Secretary of State Hillary Clinton ordering embassy officials to collect DNA samples of foreign heads of state and senior United Nations officials.

“I’m a little concerned about how we deal with this science that’s changing all the time,” Dooley said.

Mark Davis can be reached at mcdavis@vnews.com.