I'm considering a proposal that all convicted felons (including probation and deferred adjudication) be required to provide a DNA sample as part of the plea agreement. This would add about 2500 DNA samples to CODIS per year. Any other counties doing this via the plea process?

That has been one of our standard conditions of felony community supervision for at least the past couple of years. It has been met with very little resistance, too.

And what do you do if someone does not want to give DNA? If they do not agree to that specific condition?

It seems to me that such a condition would run afoul of Tamez v. State, 534 SW2d 686, 691 (Tex .Crim. App. 1976) (noting a condition should "have a reasonable relationship to the treatment of the accused and the protection of the public") and Fielder v. State, 811 S.W.2d 131, 134 (Tex. Crim. App. 1991).

To be found invalid, a condition of community supervision must: (1) have no relationship to the crime; (2) relate to conduct that is not in itself criminal; and (3) forbid or require conduct that is not reasonably related to the future criminality of the defendant or does not serve the statutory ends of probation. Marcum v. State, 983 S.W.2d 762, 768 (Tex. App.--Houston [14th Dist.] 1998, pet. ref'd).

It seems to me that such a condition would be found invalid either on direct appeal or by the new habeas corpus statute that allows appeals of probation condition (CCP Art. 11.072). The Leg. has spelled out exectly which group of felons should be required to give a DNA sample and if you are not on that list, then a request for your DNA would seem to be improper.

How can you justify getting the DNA of a guy who forges checks or committed criminal mischief or any other kind of crime that is nonviolent and nonsex related?

Greg,
If you want to pursue this, contact me offline and I'll share some resources.

RTC,
The sample is not being collected as a condition of release. It's being collected as an identifier subsequent to the disposition of a felony case. District and circuit courts throughout the country have upheld the practice, with the exception of the 9th circuit in Kincade. That decision was vacated and heard en banc, with the en banc court upholding the constitutionality of the process as it relates to the DNA Analysis Backlog Elimination Act of 2000 (DABEA).

The bottom line is that well-crafted legislation that encompasses DNA sample collection from felons continues to withstand challenges.

I haven't taken a look at key cases in a few months. If someone is aware of something that has changed in this regard, please feel free...

Sounds like a pretty good answer to me.

Yes, I am familiar with those cases. But those cases dealt with laws that had been passed by the state Leg. that would authorize the collection of the DNA as a matter of course from all felons. Texas has no such law on the books.

Probation conditions are strictly governed by CCP 42.12. The cases that I cited above specifically stated that a probation condition is invalid if it: (1) has no relationship to the crime; (2) relates to conduct that is not in itself criminal; and (3) forbids or requires conduct that is not reasonably related to the future criminality of the defendant or does not serve the statutory ends of probation.

So I do not understand how does the DNA collection probation condition survive this test absent any kind of Leg. authorization for said collection?

It seems to me that since someone is wanting to make this a condition of probation, the condition has to survive this test otherwise it is invalid.

The cases Mr. Dickson refers to deal with a completely different set of legal and factual issues in that they deal with challenges to a state law, something that does not apply here.

RTC,
This would not be a court-imposed condition of probation. It would be a voluntary collection pursuant to a plea bargain, and as far as I can see from prior decisions, the parties are given wide latitude in framing their agreement.

John,

What thoughts from the author of the always useful publication, The Perfect Plea?


JAS

I'm still waiting for RTC aka Hoover aka Grassy Knoll to agree with anything that promotes public safety or the aggressive enforcement of the penal laws.

The Court of Criminal Appeals has made it abundantly clear that a defendant may waive the right to challenge any condition of probation by agreeing to it as part of a plea bargain. Heck, the opinion that said that even implied the defendant could agree to an orchiectomy.

How is this really any different than obtaining a voluntary, consensual DNA sample from a defendant BEFORE arrest (in the name of investigation)?

Yes, Texas law only requires that felons who go to prison submit DNA samples. So? That doesn't mean that the rest of them can't volunteer to do it as a condition of a lenient punishment recommendation.

P.S. Tamez and the legal principles cited by Hoover are over three decades old. In 1993, the Leg amended 42.12 quite substantially and expanded a judge's authority to write creative conditions of probation. The language of that authority is much broader than pre-1993.

[This message was edited by JB on 01-25-08 at .]

As a practical matter, when and who draws the samples? Do you require the defendant to go to local hospital, who you contract with to collect the samples?

Forgive me because this probably has an obvious answer, but I think this sounds like a fine idea and I would like to start requiring as part of plea negotiations immediately.

I understand that a defendant can waive any right that they want to. But what do you do when you have a defendant who says: I will agree to all of the probation conditions except the one about DNA. Probation is a contract, so if the defendant does not agree to that specific term of the contract, what do you do? If the defendant was a good enough canidate for probation to begin with, how is he/her disagreeing with just that one aspect make him any less a viable canidate for community supervision? I can't imagine that a judge would send someone to prison who is otherwise worthy of community supervision.

While Tamez might be old law, it is still the law as evidenced by Marcum v. State, 983 S.W.2d 762, 768 (Tex. App.--Houston [14th Dist.] 1998, pet. ref'd) and others. So if you file an MTR on a defendant who just does not comply with that one condition, you have to over come the three-part test, in my opinion.

You lack credibility.

And then there is the issue of religion. What if a probationer has a religious belief that goes against DNA testing? If he has such a belief, then he obviously would not agree to the probation condition.


NINTH CIRCUIT SAYS MAN CAN CONSCIENTIOUSLY OBJECT TO DNA TEST ON RELIGIOUS GROUNDS
United States v. Gregory Michael Zimmerman, __ F.3d __, 2007 WL 4394421 (9th Cir. Dec. 18, 2007).

Defendant Gregory Zimmerman pleaded guilty in a false ID cases. As a result, he was ordered to provie a DNA sample. Though he has a Jewish name, Zimmerman was raised Roman Catholic. He also studied other religions, such as Buddhism. Based on his religious beliefs, he objected to letting the Feds draw blood for DNA. The district court didn't buy it, noting that Roman Catholics have no objection to having blood drawn.

Issue(s): "We consider whether compelling a criminal defendant to give a blood sample for DNA testing could violate his rights under the Religious Freedom Restoration Act (RFRA)."

Held: "Without determining the precise scope of Zimmerman's beliefs, the district court held that his beliefs weren't religious . . . This was error." Id. at *1. "While this may not be a mainstream religious belief or common interpretation of the Bible, Zimmerman's belief that he can't give a blood sample is based on his connection with god, not purely on secular philosophical concerns . . . As a result, the district court erred in holding that Zimmerman's refusal to give a blood sample wasn't based on a religious belief." Id. at *2.

Of Note: The RFRA doesn't require that a belief be central to a mainstream religion - the Act protects religious exercise - whether or not compelled by, or central to, a system of religious belief. Id. at *1.

Hoover, I don't know how familiar you are with Texas, but it isn't in the 9th Circuit. In addition, you also may not know that DNA exists in places other than blood. A simple swab will do the trick. You are really reaching into your ACLU bag.

The Ninth Circuit? Really? Got any cases from Waco? Corpus Christi?

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I understand that a defendant can waive any right that they want to. But what do you do when you have a defendant who says: I will agree to all of the probation conditions except the one about DNA.

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Then you take the case to trial.

I wonder if he had any religious objections to the penitentiary.

DNA from suspects can prevent crime

By Scott D. Shellenberger

January 30, 2008


These days, one of the most effective tools in preventing and fighting crime is a cotton swab. That's why the General Assembly should approve a measure that calls for the collection of DNA evidence from suspects arrested for violent crimes.

Opponents of the bill raise concerns about privacy. To understand why those concerns are unfounded, it is important to understand not only how DNA is used to solve crimes, but also the limits of forensic DNA analysis.

The forensic examination of DNA is conducted with commercially produced kits. These kits are used to examine 13 to 15 locations on the DNA, none of which has any genetic medical implication. Obtaining medical information in the context of forensic DNA examination would be difficult and expensive, as it would require an overhaul of forensic laboratories. Law enforcement agencies simply do not have the inclination or the resources to extract medical information from an individual's DNA.

Concerns about privacy issues must also be viewed in light of the prevention of violent crime that would result from the proposed legislation. The case of Anthony Jerome Miller illustrates this benefit.

In March 2001, a college student was followed as she walked through Towson. As she neared her home, she was grabbed from behind by a man who knocked her to the ground and raped her. The rape was reported to the police and biological evidence was recovered, but police were unable to identify a suspect.

In June 2001, a 12-year-old girl was walking home from school in Towson, not far from the first attack. A man grabbed her and placed his hand over her mouth, using his other hand to grab her by the throat. He then raped the girl. The victim was able to identify Anthony Jerome Miller as the attacker.

Mr. Miller's DNA was entered into the statewide DNA database, where it was found to match the evidence collected in the rape of the college student. Mr. Miller is serving a life sentence for that crime.

What makes the Miller case a compelling argument for passage of the proposed legislation? In November 2000, Mr. Miller had been arrested in Baltimore and charged with attempted first-degree rape. If DNA had been collected from Mr. Miller at the time of that arrest, Baltimore County police could have identified him as the person who had raped the college student, and Mr. Miller would have been arrested before he had the chance to rape again. In short, the statute would have prevented the rape of a 12-year-old girl.

DNA evidence is arguably the most valuable tool in law enforcement today. Its efficacy lies not only in identifying but also in eliminating suspects. In failing to collect this valuable evidence at the time of arrest, we act at our own peril. More important, we act at the peril of potential victims who are blithely ignorant of tortured, hypothetical and unfounded concerns about privacy.

The simple, effective measure proposed by Gov. Martin O'Malley would reduce that peril. When government can do that, it is compelled by decency to do so.

Why stop at collecting DNA from those only arrested? After all, only a fraction of all crimes result in an arrest. Why not just collect DNA at birth, along with fingerprints and eye scans?



baltimoresun.com
Wider samples of DNA argued
Opponents claim at hearing details could be misused
By Gadi Dechter

Sun reporter

January 25, 2008

Lawmakers clashed yesterday with civil liberties advocates over a proposal to expand the collection of DNA samples to those who are arrested for serious crimes -- whether they are convicted or not. The debate was the first phase of what could be one of the most contentious issues in this year's legislative session.

Gov. Martin O'Malley has made the idea a centerpiece of his agenda, and several delegates are sponsoring similar legislation.

A hearing in the House Judiciary Committee yesterday over a bill sponsored by Del. Benjamin F. Kramer pitted those excited by the technology's potential to solve crimes against privacy advocates who worry that the genetic information could be misused.

Kramer's bill would authorize the state police to collect genetic information from all those arrested on suspicion of committing felonies, but O'Malley's proposal would require it for all those arrested in violent felonies or some burglary offenses.

Kramer, a Montgomery County Democrat, said the technology would provide the state with a powerful new way to solve crimes. "This is an important tool in our effort to change our status as the fifth-most violent state in the nation," he said.

Opponents of the idea said it violates constitutional privacy protections, would cost millions of dollars to carry out, could tax police departments and raises the specter of government misuse of its citizens' personal information.

"There are upward of 20,000 to 30,000 people arrested in Baltimore City alone and released without charge," said Cindy Boersma, legislative director of the American Civil Liberties Union of Maryland. "When you overwhelm an already under-resourced system you dramatically increase the risk of error."

A bill similar to the one debated yesterday failed to pass the House committee last year, in part because of its cost.

But this year, O'Malley has proposed spending $1.3 million to pay for an expansion of Maryland's DNA database. And with the governor's backing, the chances of some version of the bill passing are much better, said Del. Samuel I. Rosenberg, vice chairman of the judiciary committee.

"I think it is far more likely than not that we will pass a bill," said Rosenberg, a Baltimore Democrat. "I think it is a legitimate law enforcement tool that exonerates the innocent and helps identify the guilty. But we want to have adequate safeguards."

Senate President Thomas V. Mike Miller said that while Virginia has approved DNA testing at the time of arrest, the concept will be a "hard sell" in Maryland, particularly with civil libertarians. O'Malley has modeled his proposal on Virginia's program.

Miller said he supports the idea. "Every so often government has to get involved to protect people in spite of themselves," he said.

House Speaker Michael E. Busch said that while he hasn't staked out a position on the idea yet, he is gratified that the governor is making public safety a major theme in his agenda this year.

"I told the governor as long as you have a record number of homicides in Baltimore, you've got to do something," Busch said.

In his testimony yesterday, Kramer tried to allay concerns about government abuse of a huge DNA arrest database.

He noted that the only permissible uses of the DNA sample -- collected through a swab on the inside of a cheek -- would be to check the genetic information for a match against genetic samples collected at crime scenes.

Under Kramer's bill, any other use of the sample, such as to discover communicable diseases or mental illness, or to create a genetic "profile" to check for predisposition to criminality, would be a felony punishable by up to five years in prison.

According to an analysis by the Department of Legislative Services, 44 states, including Maryland, require all convicted felons to provide the government with a DNA sample.

Eleven states have passed laws authorizing genetic sampling of arrestees, including Virginia, where the state's highest court recently upheld a constitutional challenge to the law.

"This has been exceedingly successful in Virginia ... resulting in hundreds of arrests," Kramer said.

But the constitutionality of the practice remains unsettled, because the Supreme Court has not ruled on the matter.

In 2006, Minnesota's Court of Appeals overturned a statute authorizing DNA sampling of arrestees. And last year, South Carolina Gov. Mark Sanford vetoed a similar law passed in the state legislature, writing to lawmakers: "I believe this bill takes too big a bite from the foundation of civil liberty and privacy that are the hallmark of the American way of life."

Stephen B. Mercer, a criminal defense attorney from Rockville who tried in 2004 to persuade the state's highest court that Maryland's DNA databank was unconstitutional, told lawmakers yesterday that the Maryland Court of Appeals would likely overturn the legislation.

"The proponents are putting before you legislation that the Court of Appeals in very strong and forceful language has indicated it very likely would be treated as unconstitutional," he said.

In 2004, the databank survived a constitutional challenge, but a majority of the court's judges indicated that they were troubled by the implications of collecting genetic profiles.

Under Kramer's bill, people who are arrested but not convicted would have the right to have their DNA sample and genetic information expunged from local, state and federal records.

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Why not just collect DNA at birth, along with fingerprints and eye scans?

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Actually, not a bad idea. Think about it: a lot of hospitals already get footprints of babies (because they're just so cute!). What other purposes could it serve? How about protecting against identity theft? Reducing the number of John/Jane Doe's at the morgue? What about even reducing the likelihood that babies could be kidnapped/swapped at the hospital? I have seen kits given that include a way to keep your child's DNA, fingerprint, and current photo handy in case, God forbid, law enforcement needs it. It's not like everyone's against the taking/use of DNA. It's a tool, not a weapon.