Category Archives: Genetics

People Always Told Me Be Careful What You Do: The Supreme Court’s Refusal to Determine a Constitutional Right to Post-Conviction DNA Testing

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Aaron MidlerGUEST BLOGGER Aaron Midler

Last month, the Supreme Court of the United States decided that convicted prison inmates do not have a constitutional right to post-conviction DNA testing. The Court’s decision in District Attorney’s Office for the Third Judicial District v. Osborne dealt a significant blow to prisoners in the three states without provisions for post-conviction DNA testing, as well as prisoners who cannot prove conclusively that DNA testing will exonerate them.  Blog entries by Tim Welch, here and here, explore these issues more fully.

Last month’s decision is also an interesting example of how the Supreme Court deals with the potential of new technology to upset the established legal system.  Chief Justice Roberts, writing for the majority, framed the problem as “how to harness DNA’s power to prove innocence without overthrowing the established system of criminal justice.”  The majority’s solution to this problem was to not disturb the “prompt and considered” response of state legislatures in drafting post-conviction DNA statutes. The majority reasoned that creating a constitutional right to post-conviction DNA testing would shift the responsibility of adapting the criminal justice system to DNA technology from the legislatures to the courts. If the Court had determined that a constitutional right to post-conviction DNA testing existed, the majority predicted that the Court would soon be required to determine a host of other questions, such as whether the states are constitutionally obligated to preserve DNA evidence for future testing–a result that the majority aimed to avoid.

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Texas Families Bring Suit Challenging State Newborn Screening Program

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Tim WelchBy Tim Welch

Another state’s newborn screening program has come under fire recently, highlighting growing concerns about the protection and proper use of human tissue and genetic information.

On March 12, 2009, five parents filed a lawsuit in the United States District Court for the Western District of Texas in San Antonio against the Texas Department of State Health Services (TDSHS), Texas A&M University, and various Texas A&M University officials (Beleno v. Texas Dept. of State Health Serv.).  The plaintiffs claim that TDSHS violated federal and state law when, as part of the legally-mandated Texas newborn screening program, TDSHS collected blood samples from the plaintiffs’ newborn babies, stored the samples indefinitely, and allegedly used the samples for unidentified research purposes, all without the plaintiffs’ knowledge or consent.

The Beleno plaintiffs allege that TDSHS has violated their right to be free from unlawful search and seizure, as guaranteed by the Fourth Amendment to the U.S. Constitution and Article I, Section 9 of the Texas Constitution.  The plaintiffs also claim that TDSHS has deprived them of their liberty and privacy interests, as guaranteed by the Fourteenth Amendment to the U.S. Constitution, the Texas Constitution, and Texas common law.

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Dyslexia Gene eneG aixelsyD

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Jake Meyer by Jake Meyer

The other day I while doing some patent law related research, I stumbled across a patent in the U.S. Patent and Trademark's patent database on a gene linked to dyslexia—U.S. Patent No. 7,355,022.  Dyslexia has been defined as a learning disability.  It can manifest itself in many different ways, but usually appears as some type of difficulty with reading and/or writing. 

After I found the patent on a dyslexia gene, I started to think about the types of inventions a company licensing this patent might be.  After a gene is "discovered," lab tests for the gene can be developed.  These genetic tests could be used to determine if someone has this dyslexia gene and therefore a predisposition to dyslexia.  Tests could also be used to preselect embryos to help ensure a child might be born without dyslexia.  Or perhaps in the future genetic therapies or a cure to dyslexia could be found. 

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Should Infant DNA Later Be Used in Forensics?

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Lori Andrews by Lori Andrews

Since the 1960s, public health departments around the globe have tested hospitalized newborn babies for serious genetic disorders, generally without the parents' knowledge or consent.  Many departments save that DNA, tiny spots of blood on paper.  Now questions have arisen about whether law enforcement officials should have access to those samples.  In other words, should babies have a right not to self-incriminate themselves?

In the United States, an Institute of Medicine committee recommended that DNA banks created for medical and research purposes (such as newborn screening banks) not be used for forensic purposes.  But, in other countries, courts have handled fascinating cases on route to setting policies.

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Do Inmates Have a Constitutional Right to DNA Testing? U.S. Supreme Court Says No.

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Tim WelchBy Tim Welch

Last month, I wrote an entry about the current trend of prosecutors blocking convicted prison inmates from accessing DNA testing on old pieces of evidence stored in police files.  Despite inmate advocacy groups’ claims that DNA tests have exonerated hundreds from false imprisonment, prosecutors are denying the tests to inmates, citing insufficient scope of state laws.  William Osborne, a man currently serving a 26-year sentence for a 1994 rape conviction in Alaska, brought his case all the way to the Supreme Court.  Osborne is seeking a DNA test under 42 U.S.C. § 1983 on police evidence collected during his 1994 rape trial.  But yesterday, the Supreme Court dealt a major blow to the wrongfully-convicted of America’s prisons.

On June 18, 2009, the Supreme Court ruled 5-4 against Osborne, deciding that convicted prison inmates do not have a constitutional right to obtain DNA tests on old evidence.  As a result, the decision of whether or not to grant inmates access to DNA testing will remain in the hands of state courts and legislatures.  While according to the Chicago Tribune, 47 states have already enacted laws that allow inmates to receive DNA testing in some post-conviction instances, Alaska is not one of them.  Osborne, who won in the U.S. Court of Appeals for the 9th Circuit, may now face an impossible task in obtaining what he believes to be justice.

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“Cheese Please, and No More Exercise Wheels”

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Jake Meyer by Jake Meyer

We've all talked to animals before, but never have the animals talked back.  Recent research makes the possibility of a day when the family dog calls your name, and tells you to sit and shake hands a little more probable.  Researchers at the Max Planck Institute for Evolutionary Anthropology in Leipzig, Germany have placed a human language gene in a strain of mice.

Although there are undoubtedly numerous genes that enable human speech, the replacement of the mice's FOXP2 gene with a human version of the gene had some surprising effects.  The mice with the human FOXP2 gene grew nerve cells with a more complex structure in the basal ganglia–a region of the brain used in language in humans.  The mice also had a new "voice."  When baby mice are separated from their mothers they make ultrasonic whistles.  But in the mice with the human gene, the whistle was a lower pitch.

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Resources for European Laws on Patient Rights

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Tim WelchBy Tim Welch

Patient rights continues to be an issue of global concern due to the rapidly expanding field of biotechnology.  As genetics become more involved in the treatment of disease and electronic medical records raise challenges for privacy, the law must evolve to ensure patient protection.

A webpage run by the Center for Biomedical Ethics and Law at the Catholic University of Leuven (Belgium) provides a substantial resource for information about European laws related to patient rights.  The webpage, located at http://www.europatientrights.eu, includes information about the status of the European Convention on Human Rights and Biomedicine (Biomedicine Convention) in each EU Member State, as well as individual countries' laws regarding patients' rights to informed consent, information about health, access to medical files, privacy, and use of genetic services.

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Biobanks: Let’s Regulate At Least One Banking Industry

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Jake Meyer by Jake Meyer

Large repositories of biological samples (biobanks) are being collected for medical and scientific research.  Some biobanks are publicly funded, like the UK Biobank, a government plan to create a database of DNA samples of 500,000 volunteers aged 40-69 in order to improve prevention, diagnosis, and treatment of life-threatening illnesses.  Some biobanks are held by private companies, like Genizon Biosciences which contains samples from 47,000 patients who are direct descendants of the original French founders of Quebec (a relatively homogenous population useful for genetics research).  Other biobanks are public-private partnerships, such as the biobank operated by deCODE Genetics, in which the government of Iceland granted deCODE an exclusive license to Iceland's genealogical and medical records.

Scientists think that significant advances in medicine science might be achieved through the study of normal genomic variations across whole populations.  These studies must analyze the whole genome, in contrast to using traditional methods to analyze a single gene.  In order to perform studies of normal genomic variations, large-scale collections of samples are required.  One way to get the large number of samples required for this type of research on the whole human genome is through international collaboration and networking among biobanks.  Commentators Barth Maria Knoppers, Ma'n H. Abdul-Rahman, and Karine Bédard, have suggested that achieving international collaboration and networking among biobanks will require the establishment of international frameworks, standards, and norms. 

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Should Inmates Have Access to DNA Testing? Some Prosecutors Say No

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Tim WelchBy Tim Welch

For prison inmates who are languishing in cells serving sentences for violent crimes they did not commit, a DNA test can be a harbinger of freedom.  That is, if they can get one.  State legislatures have begun to recognize the potential that DNA testing has for exonerating wrongfully-convicted prisoners.  Forty-six states now have laws that enable convicted prison inmates to request a DNA test on evidence related to the crimes they were convicted of in court.  But what sounds like an easy and effective way to reduce the number of wrongfully-convicted prisoners in the United States is meeting significant resistance from prosecutors.

Even though they are increasingly willing to allow DNA testing of an inmate, prosecutors are delaying these tests in some cases by years due to the scope of the applicable state laws.  In reality, DNA tests have exonerated hundreds of wrongfully-convicted people in the United States.  But many of the 46 state laws allowing this type of testing stipulate that the results must be able to prove the prisoners innocence.  Prosecutors will argue that for many types of crimes, simply not finding a DNA match to the inmate is not enough to establish innocence.  For example, in the event of a murder, the fact the blood collected from the scene does not match the perpetrator is not sufficient to prove that the perpetrator did not commit or aid in committing the murder.  This is especially true when a jury had already convicted the perpetrator on the basis of testimony and identification.

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Wheels of Justice Grind Slowly for Havasupai Tribe

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JulieBergerBy Julie Burger

In a remote section of the Grand Canyon about 450 members of the Havasupai Tribe live on tribal lands where they have lived for hundreds of years.  Another 200 members of the Tribe live away from Supai, the village area.  In March of 1990, researchers from Arizona State University (“ASU”) (Drs. Theresa Markow and John Martin) presented the Havasupai Tribal Council with a proposed diabetes study, saying that they would like to collect and use tribe members’ blood for diabetes studies.  The researchers met several times with the Tribal Council, but according to allegations, never revealed they intended to perform research other than diabetes research.  With the Council’s approval, blood samples were collected from members of the Tribe, including children and vulnerable people.  Researchers additionally took handprints from members.  English is not the tribal members’ primary language and many members do not even speak English as a second language.

The researchers did not stop at diabetes research.  They also performed additional research on the samples for schizophrenia, inbreeding, and population migration, and shared the samples with researchers at other institutions.  After discovering the additional research, the Havasupai filed state court complaints on behalf of individual Tribal members and on behalf of the Tribe against ASU and the researchers in 2004.  The Havasupai maintain that the schizophrenia and inbreeding research was stigmatizing and that they would not have consented to the migration research because it conflicts with their religious origin theory.  A member of the Tribe points out that “[the researchers] challenged our identity and our origins with our own blood and without telling us what they were doing.”

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