Tuesday, September 14, 2010

U.S. v. Pool (9th Cir. - Sept. 14, 2010)

Does taking DNA from an individual arrested for -- but not convicted of -- a crime, after a judicial finding of probable cause, as a condition of bail violate the Constitution?

Judge Callahan authors the majority opinion. Judge Lucero, sitting by designation from the Tenth Circuit, concurs and writes a separate opinion. Judge Schroeder dissents.

The testing requirement comes from the federal Bail Reform Act, and applies to pretty much every federal felony pretrial detainee. So it's an important case.

Given the significance of the case, as well as the lineup of the panel, I think you'll see this one taken en banc. Which makes sense, and the substantial tension between the majority opinion and prior Ninth Circuit precedent gives additional reason to take the case up.

Mind you, I don't think the decision of the en banc court is a foregone conclusion, and if it does go up, I'm confident it'll be a split decision. Moreover, I don't think that'll necessarily be the final judicial word on the subject, since the Supreme Court may well step in here -- particularly if the panel's decision is reversed en banc.

So this one's far from over. Though in the meantime, don't get arrested for a federal crime. Which is good advice in any event, but particularly so if you don't want the federal government to have your DNA.

P.S. - I've never seen someone's first name differ in the California State Bar records. The Bar has counsel for the defendant listed as "Rachel Barbour." However, the opinion has her listed as "Rachelle" Barbour. Since her e-mail address is Rachelle_Barbour@xx.org, I assume that the opinion is right.
POSTSCRIPT - And I just gotta add this, which I received from someone who ought to know: "It's definitely 'Rachelle' -- one of the smartest annual law clerks ever to work for the California Supreme Court Criminal Central Staff." Nice!