CSotD: Taxing the credulity of the credulous
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For those who missed it, Maryland vs. King concerns a man arrested in 2009 for menacing a group of people with a shotgun. Upon arrest, his DNA was taken and fed into a computer, whereupon it was matched with the DNA of a rapist in a 2003 case, for which crime he was subsequently convicted.
He appealed the rape conviction on the grounds that the search was an unreasonable violation of the Fourth Amendment, but the Supreme Court ruled against him, 5-4.
When Scott Stantis posted this cartoon on Facebook, my response was that collection of DNA upon arrest is no different than collection of fingerprints, a position strongly echoed in the majority opinion.
Upon review (and the Court had more than three months to ponder between presentation and decision), both the majority and I were wrong.
The cartoon stands as called.
And, before we go any further, it's a wonderful riff on the ridiculous daytime TV show that cartoonists should be ashamed to know exists but that Darrin Bell has been mocking recently over at Candorville:
Which brings to the table the topic of how unlikely it might seem to be citing conservative Scott Stantis and liberal Darrin Bell in the same posting and not in opposition to each other.
But — in addition to Bell's commentary on stupid television — both have been riffing on the erosion of civil rights recently and not in a manner that suggests they are coming from different directions.
Specific to the past few weeks, Bell has taken on the monitoring of journalists, while, in his daily strip "Prickly City," Stantis riffed on the subject of indefinite detention and extraordinary rendition:
Stantis is an old-line conservative who has, both in his editorial cartoons and in Prickly City, distanced himself from the concept that the term "conservative" is synonymous with "law-and-order-lickspittle," nor has he taken the party-line stance of other cartoonists, who seem to think that violation of rights began when Obama was sworn in.
But if Stantis and Bell seem an unlikely pairing, the fact that the dissent in Maryland vs. King united Scalia with Ginsberg, Kagan and Sotomayer creates a foursome so astonishing that it demands we go take a look and see how the hell that happened.
Letting Scalia write the dissent not only provides a shield against the notion that he simply and passively went along with the liberals this time, but allows his always-entertaining writing style to be exercised on what fans of the other three justices would call the side of the angels:
The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence. That prohibition is
categorical and without exception; it lies at the very heart of the Fourth Amendment. Whenever this Court has allowed a suspicionless search, it has
insisted upon a justifying motive apart from the investigation of crime.
It is obvious that
no such noninvestigative motive exists in this case. The Court's
assertion that DNA is being taken, not to solve crimes, but to identify
those in the State's custody, taxes the credulity of the credulous. And
the Court's comparison of Maryland's DNA searches to other techniques,
such as fingerprinting, can seem apt only to those who know no more than
today's opinion has chosen to tell them about how those DNA searches
actually work.
In the words of Chief Justice John Marshall, "BAM! There it is!"
Three things that should be made clear:
1. Rape is a horrific crime and rapists need to be caught and put away.
2. The legal system exists because revenge gets wildly out of hand really easily.
3. Most places in the world where (2) is not the law of the land also don't place much stock in (1). You could look it up.
Stantis isn't the only conservative who recoiled from this decision. Just the only one who came up with a brilliant cartoon on the topic. (The other conservative cartoonists are mostly obsessing about the IRS convention. No, really. You could look that up, too!)
Here's the plain-language take:
First of all, we don't have a fingerprinting analysis system sophisticated enough to simply run through all unsolved crimes and make matches, so that's not an applicable parallel to using DNA for random matching.
Second, there is a vast and significant difference between arresting someone for, let's say, a rape in which the victim lived in a certain place and was attacked in a certain way and, recognizing the simularities, checking fingerprints or other evidence to see if the two crimes were related, and simply tossing a suspect's DNA into the computer to see if you get any hits.
As Scalia noted:
The Court alludes at several points to
the fact that King was an arrestee, and arrestees may be validly
searched incident to their arrest. But the Court does not really rest
on this principle, and for good reason: The objects of a search
incident to arrest must be either (1) weapons or evidence that might
easily be destroyed, or (2) evidence relevant to the crime of arrest. Neither is the object of the search at issue here.
In other words, if you stop someone for reckless driving, you can't go search their apartment and seize their computer and all their papers to see if they have also perhaps robbed a bank or released secret government documents or bought and sold marijuana.
And as Scalia notes and "Law & Order" fans will attest, even things found in the reckless driver's car can only be used if they would inevitably have come to the officer's attention — like a crack vial in plain view on the empty passenger seat rather than one hidden behind the speakers in the dashboard — unless you have obtained a warrant that allows a more thorough search and that specifies drugs among the items to be searched for.
And anyone who insists that "well-regulated militia" means "well-regulated militia" is in one helluva poor position to insist that "no warrants shall issue, but upon probable cause, supported by oath or
affirmation, and particularly describing the place to be searched, and
the persons or things to be seized" doesn't mean "no warrants shall issue, but upon probable cause, supported by oath or
affirmation, and particularly describing the place to be searched, and
the persons or things to be seized."
Which may be seen as a comment on Scalia's consistency, but it surely does mean that, if you believe that this guy was treated fairly, you can't complain that Verizon turned over your phone records to the government.
Besides, it's only done for our safety and security.
Mike Peterson has posted his "Comic Strip of the Day" column every day since 2010. His opinions are his own, but we welcome comments either agreeing or in opposition.
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