Wednesday, July 3, 2013

O'Malley to Name Mary Ellen Barbera Chief Judge of Maryland's Highest Court // PLUS: Her Views on Warrantless DNA Searches

JUDGE MARY ELLEN BARBERA TO BECOME CHIEF JUDGE IN MARYLAND - A knowledgeable source indicates that Governor Martin O'Malley has selected Judge Mary Ellen Barbera to replace Robert Bell as the Chief Judge of the Maryland Court of Appeals (our highest court). The change in leadership results from Bell having hit a mandatory retirement age. Judge Barbera currently sits on the Court of Appeals, so this is essentially a promotion from within. Barbera was first appointed in 2008 and appears to come from a law enforcement/prosecutor's mindset, having previously worked in the Attorney General's office representing the state against those appealing convictions. Her bio also indicates a past focus on public safety and victims' rights. The Baltimore Sun's Erin Cox confirmed the news this morning, focusing on the fact that Barbera will be the first woman to helm the Court of Appeals (excerpt below):
BALTIMORE SUN: Maryland achieved several milestones Tuesday as Gov. Martin O'Malley named the first woman to lead what will be the first female majority on the state's top court.... Bell is required by law to retire from the Court of Appeals when he turns 70 on Saturday.

O'Malley elevated Court of Appeals Judge Mary Ellen Barbera to be chief — the highest-ranking judge in Maryland — and he appointed Court of Special Appeals Judge Shirley M. Watts to take the seat of retiring Chief Judge Robert M. Bell.... Watts, 54, was appointed to the Court of Special Appeals in 2011, following nine years as a Baltimore City Circuit Court judge and stints as an assistant state's attorney and federal public defender.

JUDGE BARBERA'S DEFENSE OF WARRANTLESS DNA SEARCHES - Maryland Juice admits to not knowing much about Barbera's legal philosophy, though a simple Google search turns up some commentary from her defending Maryland's recent controversial law allowing police to gather and warehouse DNA samples from those arrested for certain crimes. The Supreme Court's recent 5-4 ruling upholding the controversial law leaves the door open for collection of DNA from suspects whether or not they are actually convicted. Those caught in the DNA dragnet could later have their genetic material searched by the police for completely unrelated crimes, potentially allowing cops to engage in DNA fishing expeditions -- without a search warrant or articulable suspicion.

The Public Defenders office criticized the law, and a 5-2 majority of the Maryland Court of Appeals thought Maryland lawmakers went too far. But Barbera was one of the two dissenting Judges who thought that allowing police to collect and warehouse the DNA of crime suspects for future use was a kosher practice. The Daily Record's Steven Lash wrote about the battle of legal opinions between Judge Glenn Harrell who wrote the majority opinion ruling DNA dragnets illegal, and Barbera, who defended the practice (excerpt below):
DAILY RECORD:  “We simply will not allow warrantless, suspicionless searches of biological materials without a showing that accurate identification was not possible using ‘traditional’ methods,” [Judge Glenn] Harrell added....

Other courts that have considered the issue have reached different conclusions — as did Judge Mary Ellen Barbera, who dissented from the King decision, saying arrestees have a “significantly diminished expectation of privacy” with regard to police taking a DNA sample from them....
As The Huffington Post noted, the Supreme Court recently upheld Maryland's DNA dragnets, but Attorney General Doug Gansler (who pushed for the law) admitted it could lead to a slippery slope (excerpt below):
HUFFINGTON POST: Maryland Attorney General Doug Gansler agreed that there's nothing stopping his state from expanding DNA collection from those arrested for serious crimes to those arrested for lesser ones like shoplifting....

Barbera gets to head the Court of Appeals for nine years. Here's to hoping she brings more balance on due process, criminal justice and civil liberties issues than her views on DNA dragnets would suggest!

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