You might remember my original post on this case, wherein police actually nabbed a suspect by illegally posing as a lawfirm and mailing him a solicitation to join in a class action lawsuit. When the unsuspecting target mailed back his envelope with his request to join in the suit, police retrieved DNA from the saliva left behind when the defendant licked the envelope, sealing his fate along with it. He was subsequently arrested, tried, and convicted of murder.

Today the Washington State Supreme Court heard oral arguments in the case in front of a packed house, complete with TV and other media. State v. Athan, No. 75312-1. Arguing against the state were three — count ‘em — three lawyers: one for the defendant on appeal seeking suppression of the evidence and dismissal of the case; one representing the Bar Association and its position denouncing the state’s unlawful practice of law, and one from the ACLU arguing, well … general principles. I felt sorry for the lone King County prosecutor arguing on behalf of the state, until I remembered that she was probably living a dream few in her office could ever hope to realize. Here she was, a local prosecutor, arguing before the Supreme Court, in the big leagues, a significant and glamorous case. And she did her cause well, I was fairly impressed.

The Court was active and frisky, peppering all counsel with probing questions. Justice Chambers (a former President of the Bar Association), normally quiet and reserved, and not one to lightly challenge law enforcement, spoke loudly against the notion presented by the state that DNA typing was equivalent to fingerprint identification. “DNA produces more than just identification”, he protested. “It reveals much more about an individual, including his heritage, his ancestry, personality traits, and even this same information about his children. I don’t want my children’s privacy compromised through a sampling of my DNA”, suggesting his view that a much higher expectation of privacy attaches to DNA than to fingerprints.

Justice Sanders went even further. He laid into the state with surprising force, asking the prosecutor if she intended to prosecute the police who had acted illegally in violating state law regarding professional practice. “This activity was ill-advised”, she conceded, “but we don’t prosecute police who use ruses to nab legitimate suspects in murder cases”. Justice Sanders was not impressed. “Are police above the law”, he asked. After an almost heated exchange with mutual interruptions, the Justice — obviously annoyed — said “I don’t tolerate police breaking the law”. You could hear her gulp from the cheap seats.

I was disappointed with the position taken by the Bar. Counsel spent more time discussing the issue of privileged communications than to what I thought was the more powerful argument that what the police did in this case completely undermines the confidence of the public in the legal profession. If police are allowed to pose as lawyers, how can anyone ever be confident that they are in fact speaking to a lawyer and not a cop? Talk about a chilling effect.

The public policy issues brewing in this case are both fascinating and shocking. In recognition of Comments received regarding my original post, yes, what the defendant did in this case is even more shocking and reprehensible. But that’s why the Supremes get the big bucks; they get to decide what happens when momentous issues collide, and they don’t get much more momentous than this.

RP

This entry was posted on Thursday, January 26th, 2006 at 9:33 pm and is filed under News, DNA. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.