Friday, March 09, 2007

Paved with good intentions

I 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?



At Friday, March 09, 2007 4:25:00 PM, Anonymous Anonymous said...

Dave, you can't forget to show the love to the real individual that was working so hard on this legislation...former State Rep. Steve Godsey (now Mayor of Sullivan Co.).

He worked really hard in the last session.

At Friday, March 09, 2007 11:04:00 PM, Blogger DigiHairshirt said...


Whereas you and I generally take the same side in politics, on this issue I cannot agree with you 100%.

The Bill of Rights is not perfectly clear because if it were strictly read, arguably no fingerprints would be taken of arrested persons, since that too would be a "seizure", if you will, of their identity.

Arguably, a person typically "abandons" DNA in their daily routine, whether it is the saliva sample left on a coffee cup or a hair left on a head rest. I suppose the case can be made that any such samples of DNA MUST be destroyed if they occur while a person is in incarceration, since otherwise a privacy right is being violated.

But privacy rights are not absolute. It really becomes a balancing test between the extent a person's expectation of privacy is compromised and the benefit. I find silly the arguments made by the ACLU against red-light cameras as invasions of a person's privacy - if you are driving down the road, you have no such expectation. So too with something as simple as a saliva sample.

But there are some problems with the bill. For one, there are procedures to destroy the DNA sample if there is a dismissal of charges or an acquittal. Okay, so if there is nothing against which to compare, how does this help the next time this person engages in a ciolent crime? We don't throw out a fingerprint taken, or a mug shot - why the DNA if it is used as an identification?

And the fiscal impact. On that I can agree. Taking a fingerprint is easy enough - heck, I had to give a thumbprint today because I was signing notarized documents and California requires it. Swabbing a cheek is easy enough, but where it gets problematic is in collection and storing the sample. I read "licensed phlebotomists . . . would be needed by the local governments" and given the fact that TN is largely rural, I am not sure that's an expense that local governments can assume.

Hey, maybe someday the technology will be adavanced to the point where a DNA sample can be obtained from skin cells concurrently while taking a fingerprint. And digitized and transmitted automatically to a centralized database. Didn't I see that on "CSI" a couple of weeks ago? (Don't tell me that the skills of the lab techs and their machinery is exaggerated on those shows!)

BTW, Dave, I had thought about hooking up with you last week while I was in Knoxville, "enjoying" the bar examination. Unfortunately, by the time Thursday night came (the end of the test), I was sufficently wiped out to do no more than have a couple of glasses in the wine bar at "Oodles" on Market Square and crawl back to the Hilton to watch "American Idol," falling asleep halfway through. Next time in town, I invite you and the Missus to join me at said wine bar - and the spaghetti ain't half bad, too.

Thanks for continuing to provide me with a primer in the politics of my future home!

At Saturday, March 10, 2007 12:39:00 AM, Blogger Dave Oatney said...

While I agree with you that privacy rights are not absolute (the notion that they are has led to some pretty nasty legal misinterpretations of which we are both aware), I also believe that we must be extremely wary of any legislation that significantly expands the police power of the State-something that I believe this proposal does.

I know it may sound that I am more concerned about criminals than victims here, but what I am really concerned with is how this legislation could lead to abuse of power by local officials. Many East Tennessee jurisdictions are accustomed to some corruption in the police forces or the Sheriff's office, and as we have learned over the last couple of years, the Highway Patrol has been the hub of politicized law enforcement.

However, no place in the State is more known for corruption in the police and Sheriff's office than Cocke County. Even though Cocke is trying desperately to turn over a new leaf, old habits die hard in Newport-if this sort of legislation were on the books 10, 20, or 30 years ago, a lot of people could have been harmed. Taking DNA samples from every arrestee? It isn't hard to "plant" DNA evidence, and that sort of thing is not something I would merely assume couldn't happen in a place like Cocke County. (Note: That doesn't mean that the place is full of bad apples, but I wouldn't trust the cops there just yet.)

The moral: Don't put too much faith in the Sheriff.

At Saturday, March 10, 2007 11:47:00 PM, Blogger Dave Oatney said...

Let me also reiterate that I think Lt. Governor Ramsey and Leader Mumpower are acting with all the right intentions here...

I agree on local government expenses. In reading the fiscal estimate right, this could cost Jefferson County Government well over six figures per year. In an agricultural county like this one, that has the potential to really jack up property taxes. High property taxes are something I can't afford, and neither can most people who live out here.


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