Eastern District of California Blog

9th Circuit Oral Argument Recording In U.S. v. Pool (DNA Case) Now Available

Through the magic of modern technology, you can listen to this morning's Ninth Circuit's oral argument in United States v. Pool (the DNA case) here:  9th Circuit Oral Argument, U.S. v. Pool.

Preview: 12/7 Ninth Circuit Oral Argument In DNA Collection Case

The panel selected for the Ninth Circuit oral argument in U.S. v. Pool on December 7 is judges Mary M. Schroeder, Consuelo M. Callahan, and 10th Circuit judge Carlos F. Lucero.  That's the case that is to review the constitutionality of the federal statute requiring that everyone arrested for a federal felony must provide a DNA sample as a condition of pretrial release.  At least one district court judge has found that the statute's mandatory DNA collection before conviction violates the Fourth Amendment.  See post on W.D. PA decision.  Upon request of defense counsel, EDCA magistrate judges have generally stayed collection of DNA from an arrestee pending the Pool decision.

Briefing in the Ninth Circuit is available here:  Pool Opening Brief, Gov't Pool Brief, and  Pool Reply Brief

My earlier posts on this subject are available here: DNA Testing Posts

W.D. Penn. District Judge Holds DNA Collection From Pretrial Arrestees Violates Fourth Amendment

Hot off the press.  Here's W.D. Pennsylvania District Judge Stewart Cercone's opinion finding that DNA collection from an arrestee before conviction violates the Fourth Amendment.   Download WD PA DNA opinion.  Upon request of the defense, this month's Sacramento duty magistrate judge has been staying DNA collection from pretrial arrestees who have not previously been convicted of a felony (or ordering samples held or returned if collection has already occurred) pending the Ninth Circuit's decision in U.S. v. Pool, which has oral argument scheduled for December 7, 2009.   Preserve your client's rights by asking for a stay pending Pool.

ACLU Challenges California's Mandatory DNA Collection From Felony Arrestees As Unconstitutional

The ACLU filed a lawsuit yesterday in the NDCA seeking to overturn Proposition 69, which mandates the collection of DNA samples from all persons arrested for California felony offenses.  ALCU NDCA DNA Civil Complaint.  Although there is no direct EDCA connection here, there is a Sacramento plaintiff who had his DNA collected when detained at the Sacramento jail.  And I've blogged before about my concerns about  "Trusting the Government" with pre-conviction DNA collection and the Federal Defender's pending appeal challenging the mandatory collection of DNA as a condition of pretrial release.  See FD Appeal To Mandatory DNA Collection of Pretrial Releasees. 

With California's policy to collect DNA upon booking or soon thereafter, see California AG Memo on DNA Collection, and all EDCA federal defendants detained in local jails rather than federal detention centers, I wonder whether EDCA federal detainees are being lumped in with California inmates and having their DNA collected when booked at county jails.  Anyone know whether this is happening?

Mandatory DNA Collection for Pretrial Releasees Now in the Ninth

The Federal Defender's appeal of Judge Garcia's order rejecting constitutional challenges to the law mandating DNA collection from defendants on pretrial release has now been scheduled for briefing and argument in the Ninth.  In U.S. v. Pool,  No. 09-10303, the opening brief is due October 5 and oral argument has been set for the week of December 7-11 in San Francisco.  Judge Garcia's order, EJG U.S. v. Pool Order 7-15-09, summarily adopted Judge Hollows's conclusion in rejecting the FD's challenges to mandatory DNA collection for pretrial releasees before conviction, see May 30, 2009 post and order.  According to Rachelle Barbour who is handling the FD's appeal, Judge Hollows agreed to continue to stay DNA collection pending her client's appeal to the Ninth, but that he intends to lift the stay for other similarly situated defendants unless they appeal too.  Others who want to contest the DNA collection order should continue to challenge any DNA collection condition in the magistrate court, appeal adverse orders to the respective district court judges (and the Ninth Circuit if necessary), and request stays pending appeal.  Call Rachelle if you want the briefing in Pool or to discuss consolidating an appeal with her Pool appeal in the Ninth.   

Judge Hollows Upholds Mandatory DNA Testing For Federal Arrestees--No Conviction Required

In what the U.S. Attorney's Office is calling a case of first impression, U.S. Magistrate Judge Gregory G. Hollows rejected constitutional challenges and upheld the mandatory collection of DNA samples for all those arrested upon probable cause for any federal felony.  U.S. v. Pool DNA order available here.  The Federal Defender's Office has announced they will appeal to U.S. District Judge Edward J. Garcia and have applied for a stay of the DNA condition of pretrial release.  Attorneys representing other defendants should strongly consider objecting to any pretrial DNA collection condition and should ask that any such order be stayed pending final decision in the Pool case.  Contact Rachelle Barbour at the FD's office for briefing.

If the government can force the collection of mandatory DNA from presumptively innocent persons, are we not close to the point when everyone's DNA will be in a National database?  NYT, "FBI and States Vastly Expand DNA Databases".  I guess this is all supposed to be ok because we should just trust the government?  Just like we are supposed to have trusted that the government would not overstep the bounds of the Foreign Intelligence Surveillance Act in not warrantlessly wiretapping U.S. citizens?  NYT, "Officials Say U.S. Wiretaps Exceeded Law"  And if DNA testing helps protect the innocent from being wrongly convicted, how come prosecutors object to defense efforts to obtain DNA to exonerate potentially innocent inmates?