Searches and DNA: The Court Gets It Right


The Supreme Court this month decided two cases with far-reaching consequences for criminal justice.

In McQuiggin v. Perkins, the Court held that prisoners claiming wrongful conviction may bring their claims of actual innocence in federal court even if they have missed the one-year statutory deadline. And in Maryland v. King, the Court held that police may take DNA swabs from all arrestees along with mugshots and fingerprints as part of the routine booking process.

The cases are connected, for reasons I'll get into below; but they also illustrate a broader theme in Supreme Court jurisprudence: the “balls and strikes” side of judging is largely absent in the cases the Supreme Court takes.

The cases are there in the first place because there is no mechanical balls-and-strikes way to decide them.

Richard Posner, the prolific Seventh Circuit judge (who'd probably be on the Supreme Court by now if he had tempered some of his op-eds over the years) famously described his approach to deciding cases: he'd look at the facts, figure out the best outcome, and then ask whether there was anything in the law that prevented him from getting to that outcome.

It was a refreshingly honest rejoinder to the familiar Senate-hearing description of judges as wind-socks just “following the law,” or umpires just calling balls and strikes. And it pretty much captures the work of the Supreme Court.

So it's helpful at the outset to look at these cases through the lens of Posner's dictum about judging. Did the Court get to a good outcome?

My vote is yes.

I think these are both good results. Only two justices—Justices Breyer and Kennedy—agree with me. Justices Ginsburg, Sotomayor and Kagan like the innocence claims but not the DNA swabs; and Justices Roberts, Thomas and Alito want to collect the DNA but not allow the innocence claims. And Justice Scalia doesn't like either one.

But Supreme Court decisions are not just about policy, which is what makes them different from statutes and campaign speeches.

There has to be a reason, and that reason has to be found in a source of law. Usually it's a statute or the Constitution, but in McQuiggin it's something even older: the “great writ” of habeas corpus, which dates to the Magna Carta of 1215, signed by King John under pressure from English barons who wanted to restrain the absolute dictatorial power of the king.

Habeas corpus is a simple legal principle: anyone held prisoner by the state is entitled to challenge his or her detention in front of a court. Whether prisoners at Guantanamo have habeas rights was the subject of the landmark Boumediene decision of 2008 (they do).

Most habeas petitions are based on procedural defects in the trial, chiefly ineffective assistance of counsel. The Constitution guarantees criminal defendants effective assistance of counsel, and if your lawyer's performance was bad enough to call into the question the verdict, then your conviction was constitutionally deficient and you're entitled to a new trial.

(One example of constitutionally ineffective representation, announced by the Court in 2010: mistakenly advising your client that pleading guilty would not result in any immigration consequences. He pleads, then gets deported.)

But there are plenty of limits on habeas, and the biggest is the one-year statute of limitations for habeas claims created by Congress in 1996. If you miss that window for filing your habeas petition in federal court, you are out of luck. The question in McQuiggin was whether the time-limit statute should be read to allow an exception for habeas petitions that also made credible claims of actual innocence.

The answer: yes, it should.

That small detail is important because, surprising though this may sound to some readers, claims of actual innocence are not, on their own, grounds for habeas relief. You still have to show an underlying constitutional defect—and being imprisoned for a crime you didn't commit is not a constitutional defect, the Supreme Court held in 1993, in Herrera v. Collins:

[A] claim of “actual innocence” is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits…. We have never held that it extends to free standing claims of actual innocence.

So the great writ doesn't necessarily protect the truly innocent. For example, if a person had a good lawyer and got a fair trial but was convicted, and the police later found and convicted the actual perp, proving it all with undisputed DNA, etc., the unlucky first suspect still would not have a constitutional claim for release. He probably would get released, either under a state wrongful-conviction statute, or through a pardon, but if you're thinking that there ought to be a constitutional right to release in such circumstances, there isn't; and McQuiggin didn't create one.

However, McQuiggin did squarely hold that Congress did not intend to prevent people with actual innocence claims and underlying constitutional defects (ineffective assistance) from filing habeas petitions just because they missed the deadline.

With all those caveats and italics, you might think I'm being sarcastic, but I'm not: inmates with innocence claims along with ineffective assistance claims can be assured that their habeas clocks won't run out.

McQuiggin is an important case if you care about the ultimate exoneration of wrongfully convicted defendants. And as a matter of Congressional intent, and taking into account the 800-year history of habeas corpus, it makes sense: at the margins, the habeas statute should be read in favor of allowing wrongfully-detained prisoners their day in court.

I think King is also an important case for people who care about exonerating the wrongfully convicted. And I don't think it's a radical departure from our Fourth Amendment traditions. For all the gossip-column excitement about Scalia's siding with the liberals (which is actually not so rare in criminal procedure cases, as I wrote about here recently), Fourth Amendment jurisprudence has been trending this way for decades. The substantive constraint on searches in the text of the Fourth Amendment is “reasonableness,” and there are numerous contexts in which the Court has previously held searches reasonable without, a warrant, an emergency, or even particularized suspicion.

Here are a few: searches at the border; DUI checkpoints; “information” checkpoints; searches of students—including drug tests for students in extracurricular activities, and perhaps paradigmatically, searches of prisoners and arrestees.

Just last Term, the Court upheld the repeated strip-searching of a New Jersey man detained on a traffic warrant.

King is in line with decades of decisions upholding searches of arrestees. If you are arrested, you can be searched (including strip-searched). Your possessions can be searched. If you were in a car, then the car can be impounded and searched (law students studying for the bar: remember that for a search of the vehicle incident to arrest, there must be a reasonable likelihood that the car contains evidence of the crime of arrest, but for impound searches there's no such requirement)

Your photo can be taken; your prints can be taken; you can be put in a lineup; you can even have your appearance altered against your will for that lineup (they can shave your beard, or dress you in the clothes the perp was wearing).

All that is run-of-the-mill. This slope is way too slippery for the “ick factor” of cheek-swabbing to gain traction.

And yes, it's true that the point of taking the DNA sample is to amass a giant identification database—but that's the point of taking fingerprints. It is equally, 100%, no-daylight-between-them the same purpose. The goal is to allow the government to uniquely identify people through their immutable physical characteristics. If the Constitution permits the government to do that with a biological-marker identification database of fingerprints, it's not clear to me why it shouldn't be able to do so with a biological-marker identification database of DNA.

The first obvious difference between the two is that DNA contains much more information than fingerprints, raising the possibility that identification databases could be misused.

That's a serious policy argument, but not a constitutional one. And as a policy argument, I'm not persuaded. There are plenty of reasons to be concerned about the misuse of personal data, of course-like with every new leak about NSA phone and internet surveillance—but it's not clear to me how those dangers are worse with a DNA identification database than with other types of databases.

The other obvious difference is that DNA identification is much more accurate than fingerprint identification. To someone who, like me, is concerned about wrongful convictions, that matters a lot—and I think it is also a legitimate constitutional consideration under the “reasonableness” analysis. If biological identification itself is reasonable, then it is reasonable to adopt more accurate biological identification protocols as they become available.

Accuracy matters: fingerprint misidentification is a serious problem, and is exacerbated by the “CSI effect,” whereby fact-finders (judges as well as juries) are swayed by the apparent scientific precision of print analysis—which, as the National Academy of Sciences concluded a few years ago, is actually anything but.

There are no uniform standards for print examination, no peer-reviewed controlled studies of error rates, no large, publicly-available datasets to study. There's not even general agreement on how many “matching points” are required to declare an identification.

Believe it or not, the term of art in the field for that crucial last step—”That's the guy”—is actually “leap of faith.” Fingerprint examiners cannot testify to a statistical likelihood of identity, as DNA analysts can. Instead, they often simply say that they're never wrong. And juries believe them.

Please, fingerprint examiners, no nasty comments! I agree that you're probably right most of the time. But the easy cases, with two cleanly-rolled ten-finger cards, are not the problem: the problem is the hard cases, where the circumstantial evidence is balanced on edge, and the forensic evidence is what persuades the jury.

The problem is the Brandon Mayfield cases, where all the examiners are certain… until it's not him. I'm all for busting perps, but I want to be confident that when we bust them, we get it right. And the flip of side of getting it right is that a lot of wrongful-conviction exonerations came about through the forensic identification of the actual criminal. If we care about accuracy in the identification and prosecution of suspects, then DNA identification is infinitely preferable to fingerprint identification.

Identification miscues can wreak havoc on people's lives in other ways, too. I had a pro bono client a few years ago who was deported when a routine print scan at an airport turned up a “hit” for an old cocaine arrest—of a guy with a different name, living on a different coast, with a different height and build. My client said it wasn't him.

But the government figured, hey, the prints can't lie, can they? The print examiner said she was 100% certain, and there was no possibility of an error. By the time I was appointed to the case, he'd already been deported and I had to try to persuade the Ninth Circuit that the print evidence wasn't good enough.

We laid out for the court the NAS's findings, the history of fingerprint mistakes and the ways those mistakes can occur. I even lined up a bunch of experts to write an amicus brief. The court was not persuaded. Cases like that wouldn't happen if we had a truly reliable identification database.

Now maybe, you say, we shouldn't have a national identification database at all.

That's a debate worth having. I share your existential angst about a world in which it's impossible to erase the past (heck, that's what my detective novel—coming soon!— is all about). But in practice, we're already a long way down that road. How many people reading this essay have been fingerprinted—for a job interview, for a licensing exam, for coaching in your local Little League? You had your biological markers run through a national database, one built largely on arrestees.

If you don't mind that state of affairs, but would object if the database was built on DNA rather than fingerprints, I'd love to hear why. Submit a comment!

Caleb Mason is an attorney at Miller Barondess LLP in Los Angeles, and a former federal prosecutor. He welcomes comments from readers.

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