Defense Articles

Kristine Kolar, chief public defender for the 9th Judicial District, said, “This is being considered a very important victory for public defense.”

Prosecutors argue the decision unnecessarily takes out of the hands of law-enforcement officials a valuable tool for bringing perpetrators to justice.

Ramsey County attorney Susan Gaertner said the opinion was contrary to a national trend that is “accepting” of arrestee databases.

“(Minnesota) is really bucking the trend,” she said. “This decision is an unfortunate stumbling block.”

Specimens collected

Under a Minnesota law passed as part of the Omnibus Public Safety Finance Bill in 2005, law-enforcement personnel were directed to take biological specimens from juveniles and adults who have had a probable-cause determination on a charged offense but had not been convicted.
Under the law, if the person is found not guilty, the Bureau of Criminal Apprehension is required to destroy the specimen taken; if the charges against the person are dropped, upon request, the BCA must also destroy the specimen. The BCA is also required to remove the person’s information from the BCA’s combined DNA index system.

The Court of Appeals found the law violated the Fourth Amendment to the U.S. Constitution and Article 1, Section 10, of the Minnesota Constitution. The privacy interest of a person who has been charged with a criminal offense but not convicted is not outweighed by the state’s interest in taking a biological specimen from the person for purpose of DNA analysis, the court reasoned.

Rights preserved

Defense attorneys think the decision is an important step in preserving individual rights and privacy.

“It was heartening to read,” 3rd Judicial District Chief Public Defender Carol Weissenborn said. “It preserves the presumption of innocence.”

Criminal defense attorneys contend that the statute’s requirement that individuals against whom charges were dismissed request removal of their DNA from the database was unrealistic.

The DNA is destroyed only if the defendant initiated the request, Weissenborn explained.

“The onus was on the individual,” she said.

Many individuals who’ve given DNA samples after an arrest don’t even know they can have it removed if charges are dropped, Kolar said.

“Once your name is in the database, it’s difficult to get it out,” she said. “People have to have the savvy to initiate it and the ability to initiate it.”

As law enforcement becomes more technical, Weissenborn said, it’s more important to avoid the possibility that technology will “swamp the rights of ordinary citizens.”

“The statute didn’t make sense,” she said. “It’s long been understood that invading the body and taking DNA - is invasive, and it’s a search.”

Invasiveness challenged

Prosecutors dispute the degree of invasiveness involved in taking a DNA sample from an individual.

Assistant Washington County attorney Richard D. Hodsdon, who represents the Minnesota Sheriff’s Association, said the procedures for collecting and analyzing DNA had advanced over the years.

“It seems as if the court doesn’t have a good comprehension of the evolution of biomedic samples,” he said.

Some prosecutors contend that obtaining a DNA sample is really no different than fingerprinting or taking a booking photo, which is done as a matter of course following an arrest.

There is no objection to taking fingerprints as part of the booking process, Hodsdon said.

“That is not protected as a Fourth Amendment search,” he said.

Taking a photo of someone’s distinguishing marks, like tattoos for example, may actually be more intrusive than taking a DNA sample, Hodsdon said.

“A DNA swab is minimally intrusive,” he said.

According to Gaertner, the American Bar Association has come out with new DNA standards that approve of arrestee databases. She also said the federal government allowed collection of DNA samples, and more and more states were going in that direction as well.

“Although the National Association of Insurance Commissioners (NAIC) has been working for years to create a modernized and uniform state regulatory system, such a system has not yet been achieved and seems unlikely to be realized in the near future. Under these circumstances, an optional federal chartering system for insurance companies seems to be an idea whose time has come,” according to Wallison.

For many years, the AEI beat an incessant drum urging the transfer of regulatory jurisdiction from the federal government to the states. In a report released in early March 2006, the AEI espoused the creation of an optional federal charter for insurers.
Traditionally, the AEI has used the following modus operandi:

1) Identify stringent federal rules

2) Urge transfer of authority to the states

3) Threaten any state jurisdiction that actually uses the authority with an industry boycott.

Reversal

The AEI reverses itself with the call for federal insurance oversight. Without drawing attention to the policy reversal, the think tank explains its flip flop by blaming the states for not deregulating fast enough after the 1999 repeal of the Glass-Steagall Act of 1933.

One can quibble with the extent of competitive change that occurred after the repeal of the venerable act, which established legal firewalls between the three financial services sectors, helping to rebuild the American financial system after its collapse in 1929. Decades of seriously damaging court decisions and Federal Reserve Board rulings had weakened the Glass-Steagall Act so much that competition among banks, insurers and life insurance companies was already rampant by the time the act was repealed. As early as April 7, 1998, the financial historian Ron Chernow told The New York Times, “[The Act] is so riddled with loopholes at this point that it is effectively dead-Congress just refuses to give the last rites and bury it.”

The true change brought on by repeal related to the ability of financial institutions from one sector to own an institution in another sector. Investment and commercial banks have been hesitant to buy or establish insurance companies that are not subject to the subservient world of banking supervision. Ownership and not competition seems to be inhibited.

It is important to note that the AEI points toward the notoriously docile Office of Comptroller of the Currency (OCC) when it discusses an optional federal charter. By highlighting the OCC, the AEI is very clear that the national framework that it is now advocating should not be loaded down with consumer protections or enforcement mechanisms.

As Wamson points out, the banking lobby proposed an optional federal charter even when it was clear that the Congress would repeal the Glass-Steagall Act. This new competitive environment forced insurance companies and their associations to consider the advantages of a new regulatory framework; and at an AEI conference in June 1999, the American Bankers Insurance Association-an affiliate of the American Bankers Association-proposed the idea of an optional federal charter for insurance companies.

President Clinton did not sign the repeal legislation until November 12, 1999, so it’s difficult to see how the proposal responds to the post-repeal market.

The “Fetcher Bill” phase

The AEI report seems to be part of a growing campaign to revive the optional federal charter legislation. Many observers expect legislation to be introduced this year, but no one expects its passage.

Opponents of the optional federal charter proposal still rally behind the banner of the State Modernization and Regulatory Transparency (SMART) Act. This proposed legislation may actually be introduced this year as well. Once again, no one expects this legislation to pass.

Regular readers of this column will recognize the elaborate ruse being carried out with the introduction of each piece of insurance legislation. The old name for such legislation is “Fetcher Bills.” While they cannot pass, members of Congress can use the legislation to attract campaign donations from interested parties.

A major shift

Still, the move by the AEI should not go unnoticed by those who support a streamlined but effective system of state insurance regulation. The AEI is not an industry trade association that sends out cheerleading press releases for membership consumption. The AEI is a think tank that melds policy development and political action into one powerful force. At times it serves as a government in waiting. Proposals honed by the AEI result in laws, insurgencies and wars. The AEI is not just any think tank.