Wash. Supreme Court Comes to UW

[EVENT] The Washington State Supreme Court visits the UW School of Law this week, on Wednesday afternoon (reception in the afternoon) and Thursday (oral arguments and a panel on clerkships).

The first case scheduled for argument is State v. Athan, challenging the way police got DNA evidence against the defendant. They sent him a letter purporting to be from a lawyer; when he sent back the reply envelope about the supposed class action, they got saliva from the envelope flap. At its December meeting the WSBA Board of Governors voted to have WSBA file an amicus brief "to send a clear statement that police or investigators holding themselves out as lawyers was not an allowable ruse." WSBA would not address the remedy.

A detailed schedule links to the parties' briefs in the three cases being argued is here.

Categories: event, judges, State-v-Athan, WSBA, UW

WSBA considering amicus brief in case re DNA evidence gathering

[CASE] Twenty years after a 13-year-old girl was found raped and murdered, the police tried to match up DNA evidence with a suspect (the man who had been the boyfriend of the girl's older sister). They sent a letter to the defendant (he was then living in New Jersey), on the letterhead of a fictitious law firm, inviting him to join a fictitious class action. When he replied, they obtained enough saliva from the envelope he'd licked to match the DNA sample.

The Washington State Bar Association has been asked to write an amicus brief in the defendant's appeal to the Washington State Supreme Court, State v. Athan. The amicus committee recommends that "the appropriate issue to be addressed by the WSBA is the detrimental effect on the bar and the administration of justice if police are allowed to falsely pose as lawyers." The Board of Governors invites comments, and will decide at its next meeting, December 9-10. For more information see Notice of Request for WSBA to File Amicus Curiae Brief.

Categories: State-v-Athan, WSBA, DNA, practice-of-law,

Saliva Case Decided

The Washington Supreme Court upheld the use of evidence obtained by the police in a controversial ruse. Investigating a cold case, the police focused on a suspect in another state. To get a sample of his DNA, they sent him a letter purporting to be from a law firm representing plaintiffs in a class action. He replied, sealing the envelope with his saliva, and sealing his fate with his DNA. Yesterday the Court upheld his conviction under the state and federal constitutions. State v. Athan, No. 75312-1, Washington Courts website links: majority (C. Johnson, J.), concurrence (Alexander, C.J.), dissent (Chambers, J.)(joined by Sanders), dissent (Fairhurst, J.).

One difference between the majority and the dissents was how they characterized the privacy interest -- is it in one's identity? The majority said DNA reveals identity the way a thumbprint does; the dissent said it's different, deeper. Another difference was how the justices viewed the ruse used -- does it interfere with the attorney-client relationship? The majority said that licking an envelope is not an attorney-client communication. Justice Chambers was concerned that the police got the evidence by posing as attorneys. This was the issue on which WSBA filed an amicus brief -- see earlier posts. (Justice Chambers was the president of WSBA, by the way, so perhaps he has a special sensitivity to the role of lawyers.)

See Natalie Singer, Court upholds murder conviction based on DNA from envelope, Seattle Times, May 10, 2007.