By Leroy Pernell, Florida Courier

A horrible tragedy occurred in 2001 when 25-year-old Christina Franke was brutally murdered in her central Florida home. Without leads, the case remained unsolved for 17 years.

In 2018, Orlando police, using a relatively new technique referred to as “Target Testing” sought out family DNA information for use in a program called GEDMatch. The acceptance of such programs in court has yet to be fully determined.

However, a key component has been the use of family DNA voluntarily submitted in programs such as Ancestry.com and 23andMe.

Voluntarily submitted. That is the context for a second tragedy that has now unfolded. In October of 2018, Orlando police went to the home of Eleanor Holmes in Valdosta, Georgia.

There the police approached Mrs. Holmes at her front gate and asked her if she would consent to providing a DNA cheek-swab so that police could identify a possible relative in Orlando who had been found dead many years earlier. That was a lie.

Orlando police were actually looking for evidence to link Mrs. Holmes son to the murder of Christina Franke.

Not guilty plea

It is unclear whether police had sufficient evidence to form probable cause for such suspicion but what was clear is that police had already used this lie to trick other members of Mrs. Holmes family into providing a DNA sample.

The information gained from the police deception was used to ultimately charge Mrs. Holmes son, Benjamin Jr., with the death of Christina.

Benjamin has pled not guilty and it remains to be seen what role this largely unproven and deceptively received DNA evidence (the DNA not of the accused but of his family) will play in that trial.

Trickery is not ethical

Issues of the DNA reliability aside, the issue here is not the guilt or innocence of the accused but whether an American citizen not accused of anything, can be tricked into causing her child to be prosecuted.

Taking personal DNA information from private citizens, without a warrant and through deceit, is an outrageous, unreasonable and unconstitutional invasion of privacy. The Florida Association of Criminal Defense Lawyers in 2018 challenged the proposition that lies can be used to gain consent to enter a home.

That situation involved a defendant’s home. This situation is much worse. Mrs. Holmes is not a suspect and information from her body receives much greater Fourth Amendment protection than does the home.

The Florida Supreme Court has only approved obtaining saliva samples by deception-obtained consent only from a defendant who was already in custody pursuant to probable cause.

Protected privacy violated?

The Fourth Amendment protects all private citizens; the innocent perhaps even more than those suspected of criminal activity. The taking of DNA from a person not suspected of a crime, by lying to that person, in order to obtain evidence against her son, was shocking behavior.

It was also unnecessary. There was no indication of an attempt to obtain a warrant, or indeed, being honest with Mrs. Holmes as to the real purpose. She may well have cooperated in order to clear her son’s name.

Nor is there any indication that exigent circumstances existed that might justify warrantless action.

While there is precedent for allowing police to lie to a suspect after the suspect has knowingly, intelligently and voluntarily waived his or her right to remain silent, in order to obtain a confession there is no such precedent for innocent persons to be tricked into an invasion of their privacy.

Consent to a search obtained through trickery is not a valid consent particularly as to personal and private information within our bodies. Such information is entitled to the highest level of Fourth Amendment protection.

Real consent

DNA information contained within our bodies, whether it be blood, urine or saliva has consistently been held to be protected by the Fourth Amendment from unreasonable removal from our bodies by the state.

Not only has such received Fourth Amendment protection, but such actions have been held to require a warrant in the absence of exigent circumstances. With the passage of 17 years, the situation can hardly be described as an exigent-emergency circumstance.

In 1968, the United States Supreme Court said that when police obtained consent to enter a home by lying about the existence of a warrant, such consent was invalid.

While invasion of our protected privacy can be justified by consent, that consent requires real consent. Not consent based on a lie. LeRoy Pernell is a professor at Florida A&M University’s College of Law in Orlando.

The post Lying to get DNA evidence from innocent people should not be tolerated appeared first on Florida Courier.

Oakland Post

Posts by Oakland Post

Where is the rage from the Black community on the impeachment of President Donald Trump?

The Black community in 2019 appears to be invisible and lethargic when it comes to politics, and as a collaborative force no one seems to care.

When the Black community is analyzed, there is an award show every month. Many of the Black stars are spending money and weeks getting the right gown or tuxedo, and the perfect hairstyle for the big night.

There is the 2019 Essence Black Women in Hollywood Award Luncheon, 2019 ASCAP’s Rhythm & Soul Music Awards, 2019 American Black Film Festival, and the 2019 ASCAP Women behind the Music.

In every Black organization, in each of the major cities across the country there are major Black award events and dinners where the tickets are $100.00 to $300.00. There are excellent speakers, fantastic singers, and there are three and four-course meals.

But in all the hoopla, crying and praying, politics and a Black Agenda appear to be left out of the picture.

Unbothered

As Democrats around the country protest and raise their voices to impeach and remove President Trump, the Congressional Black Caucus and other Black Caucuses’ are silent. Representatives such as Rep. Maxine Waters, and the late Rep. Elijah Cumming have been in the forefront of the impeachment inquiry.

Trending

DA Pamela Price Stands by Mom Who Lost Son to Gun Violence in Oakland

But the collective Black voice around the country has preferred to stay in the background with no major position and agenda.

Many of the Black grassroots, youth, stars, and Black churches are asking the question why we should care.

The Grio reporter Sophia Nelson stated first we have to care because we are citizens of this great Republic, and secondly, the removal of President Trump from office means the installment of Vice President, Mike Pence.

Vice President Pence’s track record as governor with Blacks and people of color has been focused on voter suppressions and a state police raid on a registration program aimed at signing up Black voters.

What’s at stake

In the Senate, it will take 67 senators to remove President Trump from office, and from the very beginning of the impeachment proceedings, Senate Majority Leader Mitch McConnell has been in lockstep with the White House.

The president and Republicans have put together a smear campaign and attacked loyal public servants, and high-ranking State Department diplomats.

“Senators like Graham have attacked and demeaned the FBI, calling them ‘scum’ and worse. All of this is only feeding the ‘gaslighting’ that Republicans pundits routinely engage in on national TV and that includes Attorney General William Barr. It’s dangerous,” said Nelson.

Blacks can put their heads in the sand, and say that the impeachment is too complicated, and we don’t like politics. But there is a constitutional crisis in America, I can tell all Blacks and people of color that our very democracy is at stake.

President Trump must be held accountable and Speaker of the House Nancy Pelosi strategically needs Black support around the country.

Sidelines no more

Speaker Pelosi is fighting Senate Majority Leader Mitch McConnell by not handing over the Articles of Impeachment until there is a fair trial there. Trump has turned American politics into a den of corruption and thieves, and the Republican Party is blind and complicit with breaking the law.

President Trump is nasty, mean, petty, and vindictive, and Blacks and people of color must speak with one voice, and be engaged.

Blacks can no longer sit on the sidelines, but we must be educated and take a political position. We need to get the youth and community-engaged.

Our message must collaborate and partner with other ally organizations and leaders, authentic, attention-grabbing, specific, and packaged for Blacks and people of color.

It is time for the Black voice to ring out loud and clear, saying we support the impeachment of President Donald Trump, and we will fight with Speaker Nancy Pelosi and the Democratic Party.

There is power in the Black community across the country, and we must be engaged and unified.

Roger Caldwell, a community activist, author, journalist, radio host and CEO of On Point Media Group, lives in Orlando. Contact him at jet38@bellsouth.net.

This article originally appeared in the Florida Courier.

Oakland Post

Posts by Oakland Post

NEWS SERVICE OF FLORIDA

A Senate Republican filed a proposal Monday that would require high schools to offer elective courses in the study of the Bible and religion.

Sen. Dennis Baxley, R-Ocala, filed the bill (SB 746) for consideration during the 2020 legislative session, which starts Jan. 14. Rep. Kimberly Daniels, D-Jacksonville, filed an identical bill (HB 341) last month in the House.

The bill, in part, would require courses providing an “objective study of the Bible, including, but not limited to, a course on the Hebrew Scriptures and Old Testament of the Bible; a course on the New Testament of the Bible; and a course on the Hebrew Scriptures, the Old Testament of the Bible, and the New Testament of the Bible.”

Also, the bill says courses would be required to follow “all state and federal laws and guidelines in maintaining religious neutrality and accommodating the diverse religious views, traditions, and perspectives of all students in the school.

“A course offered pursuant to this section may not endorse, favor, or promote or disfavor or show hostility toward a particular religion, religious perspective, or nonreligious faith.”

The post Bible courses proposed for public schools appeared first on Florida Courier.

Trending

Comparing Histories: Black and Japanese American Advocates Talk Reparations and Justice

This article originally appeared in the Florida Courier.

Oakland Post

Posts by Oakland Post