Another Death Row Inmate Freed By DNA

In Louisiana yesterday Damon A. Thibodeaux became the 18th man in the U.S. to be freed from Death Row by DNA, the sixth exonerated from Louisiana’s death row alone. Thibodeaux spent 15 years in prison for the rape and murder of his step-cousin. He confessed to the crime after 9 hours of police interrogation.  Both the state supreme court and the U.S. Supreme Court rejected his appeals that his trial was riddled with over 50 points of error and upheld his conviction. DNA has now proven his innocence. No DNA from the victim was found on the clothing he had been wearing at the time and the coat hanger that was used to kill the victim was not found to have his DNA on it. There must be more to the story than this however because excluding him alone would not be enough unless there was another sample – some DNA on the coat hanger that did not match him or the victim. There is surely more to the case than this over simplified article represents. You can read the Telegraph Herald’s story here.


Interpreting the Fourth Amendment: When Should We Expect Privacy?

Obviously, there is no shortage of history concerning the Fourth Amendment’s “protection against unreasonable searches and seizures.”  However, as the available technology changes it most certainly affects how the Fourth Amendment should be interpreted and analyzed.  Most law students and legal professionals remember the Supreme Court’s decision earlier this year in U.S. v. Jones, 132 S.Ct. 945 (2012), where the Court held that installing GPS devices on citizens’ vehicles constitutes a Fourth Amendment search that must be justified by warrant.  More recently, a suit was brought in the Minnesota District Court for an alleged violation of the Fourth Amendment arising from three middle school officials’ search of a twelve year-old’s private Facebook account.  R.S. by S.S v. Minnewaska Area School District, et al., 2012 WL 3870868 (2012).   The school counselor, deputy sheriff, and another middle school official logged into the twelve year-old’s Facebook account and viewed her public and private messages.
As professionals and professionals-to-be (and prudent people in general), we are repeatedly warned about the lack (or absence) of privacy within the realm of social media such as Facebook and Twitter.  However, in the 12(b)(6) hearing, the Minnesota District Court found that the twelve year-old did have a reasonable expectation of privacy for the ‘private’ messages on Facebook.  It may seem obvious that password protected material is expected to be private, but social media changes the way information is presented everywhere.  Should we expect Facebook profiles to be private if we have set our preferences to restrict ‘non-friends’ from viewing?  Can there be a clear cut line?

Lock Up the Prisoner and Set the Frogs Free

When law and science are mentioned, the discussion is often how science can enhance the law.  A recently developed program demonstrates how the law is now being used to enhance science.  The program, a coordinated effort between Evergreen State College and Washington State Department of Corrections, is called “Sustainability in Prisons Project.”  Detailed information about the program can be found here.  Basically, the program is intended to provide a vehicle for those who have been incarcerated to “play key roles in conservation and advancing scientific knowledge.”  It appears that the program has great potential, both in advancing science and in reforming inmates.

The New York Times recently ran a success story regarding the program.  Two inmates, jailed for stealing cars, have raised about 250 spotted frogs, an “imperiled species,” while behind bars.  Not only is the program advancing biologists’ efforts to save endangered species, but the program is leading to the advancement of the sciences in other ways.  For example, a previous inmate is currently finishing a Ph.D. program in molecular biology and a current inmate plans to study bioengineering upon his release.  It can only be hoped that by encouraging inmates to pursue positive life goals that society will also benefit from the advances those individuals are able to make as they continue to pursue scientific research.

The article can be read here.

Chemically Castrated Man Rapes Again: What I Saw On 20/20

One evening, in the wee hours of the night, I had insomnia. So I turned on the television to watch an old 20/20 TV show.  I think the episode I watched had originally aired back in the year 1999 or 2000.  In this episode, Cynthia McFadden  interviewed a chemically castrated male named Joseph J. Smith from San Antonio, Texas. Here is his story:

Smith, a resident of San Antonio, experienced uncontrollable sexual urges that he satisfied by running around a neighborhood at night in nothing more than his socks and a ski mask.  He peeped into his neighbors’ bedrooms and stimulated himself. After numerous calls by concerned citizens to San Antonio police, he came to be known as the “Ski-Mask Bandit”.  But one night, Smith went too far.  He entered a home in his unique outfit and raped a woman. Despite tremendous efforts, San Antonio police couldn’t catch him!

Out of fear, Smith’s victim moved away and left her home vacant.  A neighborhood watch was organized to help police catch him.  Volunteers diligently staged a stakeout of the now-empty home, hoping Smith would return to the scene of his crime.  As predicted, Smith returned, and the Texas posse wrestled him down.  A jury convicted Smith of twice burglarizing and attempting to rape the same woman.  Unfortunately, the jurors gave Smith ten years’ probation instead of jail on the condition that he get weekly injections of Depo-Provera.

The drug therapy worked well for many years.  Monitoring the probationer  and administering the drug wasn’t even a problem. Smith was a model citizen on the drug.  When he was interviewed on 20/20 by reporter Cynthia McFadden, Smith described how his weekly Depo Provera injections completely stopped all sex drive, which he stated as “so over-the-top … so terrifying that I became irrationally uncontrollable.  My testosterone made me lose my self-control.  That’s why I hurt others.”

“The danger after a while,” Smith acknowledged, “was the drug eventually gave me a false sense of security that I could one day be normal again.  After years on the drug program, I convinced myself that I would be ok if my dosage was lowered, like an alcoholic can convince himself that he can have a beer every now and then.”

Sadly, that is exactly what happened.  Smith convinced his supervising doctor to lower the dosage on year 8 of probation.  He successfully found a truck-driving job in Virginia and married his nurse (who administered his weekly injections). Soon, the couple wanted to try to start a family.  The supervising doctor agreed.

The remaining two years of his probation passed with no problems (even on the lower dosage) and Smith was released from both Virginia’s and Texas’s radars.  “As long as Texas didn’t seem to show much concern, we decided to take (Smith) off our books,” Virginia Department of Corrections spokesperson Larry Traylor said.

After probation, Smith discontinued taking Depo Provera altogether, and soon he was the father of a 5-year-old daughter.  He supervised sleepovers held in his own home, in a neighborhood where nobody knew about his past.  Well, it doesn’t take a magic eight ball to predict how long it would take Virginia police to receive concerned reports of a peeping tom who ran around the neighborhood in nothing but his socks and a red bandana.  They nicknamed the culprit “The Bandana Bandit.”  (by the way, his wife, aware of the local news, said nothing.  In addition, she worked nights at the local hospital, leaving Smith in charge of their daughter.)

It was only a matter of time before Smith raped again.  Unfortunately, this time it was a child attending one of those slumber parties. DNA evidence also linked Smith to other previous rapes, and now he is serving life in prison plus 20 years.

Today, hopefully, this would not happen.  In solace, I realize Smith would be diligently and accurately tracked today with the nationwide database of sex offenders.  And regardless of whether or not he moved, I am praying he would not have been allowed to EVER reduce or discontinue his drug therapy as a convicted rapist at ANY time, despite his wanting to procreate.

For a transcript of the show, go to

Why Patent Genes That Can Provide Cures?

In today’s world everyone seems anxious to get their research patent protected as soon as possible – and rightly so, after all I wouldn’t want someone else ripping off my ideas and research. However, when it comes to health issues and particularly, the recent breast cancer controversy, are we crossing an ethical line by allowing the law to patent protect breast cancer treatments and studies leading to cures? While many medical procedures and research warrant patent protection, are we doing the country a greater disservice by allowing these findings to be restricted to their patent holder? When it comes to health care and medical progress I think the law of patents should take into account the public policy concerns, the problem is where to draw that line. Recently, a U.S. circuit court affirmed the right of Myriad Genetics Inc. to patent genes linked to breast cancer and ovarian cancer. This ruling came after SCOTUS told the court to reexamine the case in light of their ruling in Prometheus Laboratories that unanimously held that companies could not patent observations about natural phenomena. In Myriad Genetic’s case the federal circuit court interpreted the Supreme Court’s ruling to mean that companies could still patent genes, but Myriad could not receive a patent on analyzing DNA sequences.

The U.S. Patent and Trademark Office has granted thousands of patents on human genes approximately 20% of our genes are patented. A gene patent holder has the right to prevent anyone from studying, testing or even looking at a gene. As a result, scientific research and genetic testing has been delayed, limited or even shut down due to concerns about gene patents. Is this really the result we want? The American Civil Liberaties Union, who brought the case against Myriad Genetics argued that patents on human genes restrict medical research and patient’s access to medical care. I think they have a point, but perhaps if we could find a better alternative than strict patenting for such medical research that would still award the researcher, but also give the greatest possible benefit for people everywhere then we could adequately address the ethical issues here. With our patent crazed society this issue is bound to be a prevalent one in the next several years.

Science, Religion, and Personhood

Costa Rica is the last country with a full-on ban of in vitro fertilization. The motivation behind the policy is similar to that expressed on the bumper stickers of anti-abortionists: that an embryo is a human, and ending its existence is tantamount to killing it. On the other end, infertile couples are often left without a method to conceive their own children, and as a result, some have brought a law suit against Costa Rica. The Inter-American Court of Human Rights is set to rule on the issue soon.

Before the issue can be further assessed, the boundaries of personhood must be determined. Though these infertile couples should have a right to conceive their own children, they should not be allowed to do so at the expense of morality. A paraplegic has the right to walk, but he cannot cross the bounds of morality to gain it. The law cannot decide to equalize human capabilities at any expense. Thus, the line must be drawn to determine what is actually occurring on a moral level when embryos are artificially created and planted in a womb with a small likelihood of survival.

Finding that line in the sand for personhood may be impossible to do objectively. Perhaps the best method is to find the greatest and most significant biological change. But how do we determine what change is great enough to delineate between mere cellular arrangements and a human being? Or is it more philosophical–that a cellular arrangement that is structured to grow into a human deserves the treatment of a human, based not on its humanness but on its potential for humanness? This debate tends to toss the religious and the scientific into the boxing ring. Religion is often cast aside as fictional fluff, while science remains as ‘objective truth.’ But is there ultimately any difference between religion (the deep-rooted belief in the authority of a higher being and the weakness of man) and science (the deep-rooted belief in man’s ability to determine truth through reason and measurement)? Both are just different constructs for extracting truth, and neither can prove anything definitively, wholly, and universally through all infinite space and time. While the science behind gestation is important to our present and limited understanding of it, policy should not necessarily defer to science if the will of the people is drawn from a religious background. As we are incapable of determining pure truth, we cannot favor one construct for truth over another merely because it favors the external over the internal (and really, which one is more real to us? Cue the The Matrix references).