This article first appeared in the July 31, 2014 edition of the Vermont Standard.
By Eric Francis, Standard Correspondent
WHITE RIVER JUNCTION — For the past three years suspects being arraigned on felony charges at courthouses across Vermont have routinely been ordered to give a sample of their DNA in the form of a cotton swab that collects a small amount of cells from the inside of their cheeks.
Moments after issuing the calls for DNA collection, the same judges having been turning right around and “staying” their orders pending the outcome of several legal challenges to the practice that had made their way up before the justices of the Vermont Supreme Court.
Last week the majority of the justices sided with the defendants who challenged the Legislature’s expansion of the sample collections, noting, as Justice John Dooley wrote in their decision, “The judicial finding of probable cause at arraignment is no substitute for a criminal conviction — the watershed moment that strips a defendant of the presumption of innocence and related privacy protections.”
“What I think is really great about this,” said Woodstock defense attorney Elizabeth Kruska, who filed one of the challenges to the 2011 expanded collection law which became the Windsor County case that went before the state’s highest court, “is that the Vermont Supreme Court did a pretty thorough analysis under the Vermont Constitution and found that the taking of DNA from innocent persons who have been accused of, but not yet convicted of, a felony is an unreasonable search and seizure.”
In the court’s decision, Justice Dooley wrote that however unobtrusive the collection method, DNA, with contains literally quadrillions of bits of information about an individual’s genetic makeup, is fundamentally different than something external to that person like a booking photograph or a fingerprint. “It is important to note that the DNA samples being seized provide a massive amount of unique, private information about a person that goes beyond identification of that person,” Justice Dooley wrote.
Attorney Kruska said the ruling falls in line with over 20 year’s worth of similar decisions from the Vermont Supreme Court.
“It’s completely analyzed under the Vermont Constitution, which is well known to provide greater protections to our citizens than the Fourth Amendment (of the United States Constitution). Where I think this is really valuable is that it continues to show that the Vermont Constitution gives us greater privacy rights,” Kruska said, adding, “I think that this ruling is a natural outgrowth of that and it keeps logically in step with what the supreme court has done over the years.”
Windsor County State’s Attorney Michael Kainen said he was not surprised by the decision since, “our supreme court has consistently held that criminal defendants have greater rights under Article 11 of the Vermont Constitution than they have under the Fourth Amendment of the US Constitution.”
Kainen said the ruling, “will not changethewaywedobusiness,”when it comes to criminal investigations and the worst consequence he said he could foresee might be “a couple of people who avoid detection on a cold case.”
“I don’t think it will be a significant number,” Kainen said, noting that “the supreme court’s majority pointed out that the state could not articulate solid reasons for collecting DNA before conviction” and “balanced that against the privacy interest of those who have not yet been convicted of a crime.”
Kruska noted that despite something of an uproar on social media in the wake of the decision, almost nothing about criminal procedures in Vermont will actually change as a result of last week’s ruling.
“Suppose something happens and police find some DNA at a crime scene, there is already the large DNA bank in place that it can be tested against,” she said. “If there is a specific suspect the police can still get a warrant, if they feel they have probable cause, by applying for what’s called a “non-testimonial order” and have that person show up so they can take a cheek swab. There has to be probable cause and this is something that has to be signed by a judge so, realistically, I don’t think there is much that is different today than there was yesterday.”
Kruska said the some of the chief concerns at issue in the challenges were more about the future than the present. “I think that one thing people were worried about was the potential expansion of the uses of the data base,” she noted. “Right now you can only use the DNA data bank for specified purposes (criminal investigations, identifying missing persons, etc.) and only certain people have access to it but there’s nothing to say that the Legislature couldn’t change that some day in the future and say, ‘Oh, now we have single-payer health care, go search the data bank,’ or whatever. It could become something different down the road.”