Paved with good intentionsI don't think there is an informed person in East Tennessee who knows anything about the murder of Johnia Berry that doesn't want to find Johnia's killer (except perhaps the murderer himself). The East Tennessee State graduate and University of Tennessee Masters' Degree candidate was brutally murdered on December 6th, 2004, and police still have not found the murderer, in spite of a very detailed description of the person given by Johnia's roommate, who was also stabbed by the filthy lowlife scum. Most frustrating to the family is the fact that DNA was discovered at the crime scene
Johnia's family is doing everything they can to find the killer, and have found a few friends in high places who are rightly sympathetic to the cause, including State Senator Tim Burchett, State Representative Stacey Campfield, State Representative Jason Mumpower, and Lt. Governor Ron Ramsey. That all of these folks would concern themselves with bringing justice to the unknown man who committed this awful crime and to seeing to it that this doesn't happen to other women is the right thing to do.
Sometimes, however, in trying to do the right thing, it is very possible to do something that seems good but could have extremely negative long-term effects. Specifically, long-term negative effects on people's basic constitutional rights. I believe that Jason Mumpower and Ron Ramsey are trying very hard to do the right thing in this case, but they have stumbled on to territory that is constitutionally tenuous at the very least and unconstitutional at worst.
The problem with the bill is not the concept, but the dangerous wording. The bill requires that every person arrested for a felony after July 1st give a sample of their DNA to the authorities. The school of thought on this is that giving a DNA sample is no different than giving a fingerprint. I do not agree-you give your fingerprints for lots of good reasons. Mine are on file because I have worked with children as a religious instructor and the Catholic Church now requires that anyone in the Church who works with kids have their fingerprints taken and the authorities are to be made aware of who is working with children in an official capacity in the name of the Church-I have no problem with this and I happily complied.
Taking DNA, a bodily acid, is quite another matter. Even taking a mouth swab involves a greater invasion into someone's personal space. Merely taking the DNA of an arrested person (as opposed to an indicted person, or any person convicted of any felony) makes a presumption of probable cause. When entering the legal and constitutional territory of probable cause, the Bill of Rights (both federal and Tennessee) is very clear: A warrant must be issued signed by a judge which describes the "place to be searched and the person or things to be siezed," in this case, the suspect and their DNA. We have a way to get DNA from felons and suspected criminals-obtain a warrant and get the DNA. Trust me, it isn't hard to do.
Merely taking the DNA from an arrested person (as opposed to an indicted or convicted person) without a warrant essentially means that an individual's person is being searched without a search warrant-the search warrant is the legal document needed to constitutionally establish probable cause. Some may say "but David, what's wrong with an arrested person giving their DNA, what would they have to hide..." Our system of justice is built on the idea that all suspects are innocent until proven guilty. Just as the arrested suspect has the right to remain silent, they also can be neither arrested nor searched without the appropriate warrant. To pass legislation that essentially says the contrary is dangerous legal ground indeed, and could set the State up for court challenge after court challenge, a cost not figured into the bill's fiscal estimate.
Legislators should also be reminded that there are jurisdictions in this State where perfectly innocent or otherwise harmless people have been arrested for the entertainment or appeasement of certain corrupt officials. This legislation would have allowed those officials to further humiliate said people without a warrant.
Senators and Representatives should be reminded that they swore an oath to support and defend the Constitution of the State of Tennessee and of the United States. This legislation, though its purpose is noble, is quite constitutionally suspect-and it will not help find Johnia Berry's killer. Even if it were already in place, how does anyone know if the scum was ever arrested for a felony to begin with?
Labels: Tennessee politics