Forensic DNA is serious business, as are U.S. Supreme Court decisions.  (Well, except for some of the dissents.)  That’s why I was so tickled to discover a California sequel to Maryland v. King that, with all due respect to the individual defendant involved, to whom it must seem tragic, reads like a farce.  Herewith, the story of arrestee DNA and George Shirakawa, Jr.

Santa Clara County, where Stanford (mainly) sits, has an estimated population of 1.83 million, making it about the 16^th largest county in the United States.  It is governed by an elected, five member Board of Supervisors, each elected to serve a roughly 365,000 person geographical district.  George Shirakawa, Senior, was a beloved political figure in Santa Clara County, serving on the San Jose City Council and dying in 1994 while running for re-election.  His then early 30s son, George Shirakawa, Jr., was appointed to fill his seat.  George Shirakawa Jr. won his own race for the city council seat, then “retired” from politics to lobbying.  And from 1992 he served for many years as an elected member on a local school board.

In 2008, Shirakawa ran successfully for a seat on the Board of County Supervisors; in 2012 he won re-election (running unopposed).  He eventually became the Board’s chair – and thus, at least in theory, the highest elected official in Santa Clara County.  The Supervisor position is not a part time position; Shirakawa earned total compensation of just over $200,000.

Then it all fell apart.  Local reporters raised questions about with absent financial disclosures from his 2008 campaign, as well as some disclosed payments to relatives, a lover, and friends. This turned out to be the tip of the proverbial iceberg.  Shirakawa had, for years, had a serious gambling problem, one he fed with both public and campaign funds.  The district attorney had started investigating him during his 2012 re-election campaign. On March 1, 2013, Shirakawa resigned his supervisor’s seat.  On March 18, 2013, he pleaded guilty to five felonies and seven misdemeanors, including perjury, using his public credit card for private expenses, misusing campaign funds, accepting illegal cash donations, filing inaccurate reports, and others.   Prosecutors said he embezzled over $130,000 from public and campaign funds, mostly to pay casinos.

A promising political career crashing and burning is not unique, though the speed, scope, and style of Shirakawa’s downfall were perhaps noteworthy. (I described it to a reporter as “like a perfect swan dive off the Empire State Building.”  But that’s not enough to warrant a post on the Center for Law and the Biosciences blog.  No, that comes from what came next.

When Shirakawa was booked in March after being arrested for the crimes to which he later pleaded guilty, as required by California law he provided a DNA sample. That sample was sent off to a California crime lab, which finished the analysis and posted Shirakawa’s DNA to the arrestee database on April 22, 2013.

And, sure enough (or this blog post wouldn’t exist), his DNA profile matched DNA from a cold case.  Now I’ve got you interested, right?  You are wondering, “murder, rape, arson . . . what did this guy do”?

Impersonation.  Of a campaign committee.

In 2010 one of Shirakawa’s political allies, friends, and former staffers, Xavier Campos, ran for a seat on the San Jose City Council.  One of his opponents was Magdalena Carrasco.  Shortly before the primary election, a campaign mailer was sent to voters in the district, mainly voters of Vietnamese heritage (a large and politically active minority in San Jose).  The mailer said it was from “Neighbors for Magdalena Carrasco for Council 2010,” it used a photo of Carrasco from her website, and it referred to the registration number given her campaign committee by California Fair Political Practices Commission.

But it wasn’t from Carrasco.  Carrasco would surely not have placed, next to her picture, the flag of the Socialist Republic of Vietnam. Not in San Jose, anyway.  Much of San Jose’s Vietnamese community, which stemmed from the Diaspora after the fall of Saigon, still loathes the communist regime.  Tying yourself to communist Vietnam in San Jose is about as popular as wearing Red Sox garb in Yankee stadium.

Was the mailer important?  A writer for San Jose Inside, the on-line publication that has provided the most complete coverage of this scandal (and the source, along with the San Jose Mercury News, for most of the facts in this blog post), says

Truth be told, the mailers had a nominal effect on the races in question. Only the most naive and uninformed voter would take the messages seriously. The real damage is to the psyche of the political opponent. The mailers become a distraction to the target, who must take time to deny the message, denounce the mailers and become frustrated when they can find no one to hold accountable for the deception.

Josh Koehn, DNA Links Shirakawa to Fraudulent Mailer that Helped Campos in 2010 Council Race, San Jose Inside (posted June 5, 2013), at http://www.sanjoseinside.com/news/entries/6_5_13_george_shirakawa_felony_dna_mailer_xavier_campos_magdalena_carrasco/

Carrasco lost the primary to Campos by 20 votes.  Under California’s open primary system, the two faced off again in the general election as the two highest vote-getters in the primary.  Campos won the general election by under 400 votes.

Not surprisingly, Carrasco said that her campaign hadn’t circulated the mailer and she complained. After the 2010 elections, the district attorney started an investigation.  Witnesses were interviewed but no arrests were made.  Stamps from the mailer, however, were successfully “searched” for DNA from the saliva used to lick them.  (Self-adhesive stamps could have changed history here.)  This “crime scene DNA” was put into the appropriate database, but no matches were found.  Until April 22 – and George Shirakawa.

Poor (?) George!  Impersonating a campaign committee turns out to be a felony in California and the district attorney does not view this newly discovered crime to be part of the global settlement that was part of the plea deal Shirakawa sealed when he pleaded guilty in March.  He wants to prosecute this and add more prison time for Shirakawa.  As if the humiliation weren’t enough – another story in San Jose Inside on the impersonation charge is entitled “If Stupidity Were a Felony”.  (Good use of the subjunctive.)   In the meantime, the new charges have delayed Shirakawa’s sentencing under old guilty pleas (and plea bargain) as everyone tries to figure out whether that deal affects these charges.

But back to Maryland v. King. (You remember Maryland v. King? This is a blog post about Maryland v. King.  Sort of.)  If the Supreme Court had ruled the other way in the King case, the collection of DNA from Shirakawa at his arrest would have been unconstitutional.  In fact, it might still be unconstitutional if either the Ninth Circuit in Haskell or the California Supreme Court in Buza rules that California’s statute violates the federal constitution (and the U.S. Supreme Court doesn’t knock them down) or if the California Supreme Court rules that it violates the state constitution (in which case the U.S. Supreme Court has no standing to intervene).

My earlier blog post analyzed those possibilities and I won’t repeat those guesses here, but I do think the disgraced and pathetic Mr. Shirakawa would be out of luck even then.  His DNA seems to have been taken at the time of his booking, which appears, from the newspaper stories, to have happened sometime in March before his guilty plea.  But he did plead guilty, to five felonies and seven misdemeanors.  The felony convictions, at least, would have required that his DNA sample be taken and put into the database.  It might have happened a few weeks later, but it would have happened, making any error in his case, I think, harmless [should be “meaningless”, see next set of brackets].

The existing cases on DNA collection from arrestees don’t really discuss a harmless error exception [NOTE – should be “inevitable discovery exception” See the first two comments below].  But in King, the Maryland opinion notes that although he was charged on arrest with first and second-degree assault, he was eventually only convicted of Class 2 assault.  The court points out in a footnote:

“Crime of violence” means any enumerated crime in § 14-101 of the Criminal Law Article, including first-degree assault. Meaningfully for the present case, second degree assault is not an enumerated crime of violence. Md. Code (2003, 2011 Repl. Vol.), Pub. Safety Art., § 2-501(e). [emphasis added]

The issue of harmless error [inevitable discovery] because of subsequent conviction (and entry into the database) does not exist in Haskell or Buza.   Neither of the name plaintiffs in Haskell was ever convicted of the crimes for which they were arrested – they weren’t even charged.  And Buza was convicted of the felonies for which he was arrested, and which were the basis of the requirement that he provide  DNA, but he is appealing his misdemeanor conviction for refusing to provide a DNA sample on arrest.  If he were complaining about the consequences of providing a DNA samples (i.e., a subsequent arrest and conviction, as in King), his subsequent convictions might make his claim harmless error [fail under the inevitable discovery exception], but the fact that he would have had to give DNA, under a post-conviction statutory provision, doesn’t affect his conviction for failing to give it under the arrestee provisions.*

Of course, even if the DNA hit is admissible, it doesn’t necessarily mean that Shirakawa was guilty.  He might have licked those stamps for some other envelopes (debt payments to casinos?),  only to have evil, unknown forces (“one armed men”?) intercept them and put them on the phony Carrasco mailers.  Or it could be that the stamps weren’t licked but were wetted with a damp sponge . . . and that Shirakawa had just happened to have given himself a sponge bath with that sponse before someone else used it for this nefarious purpose.  Or other factual arguments a clever lawyer might make.  Or not.

Most likely, though, this evidence more or less ends the sad tale of George Shirakawa, Jr.  The moral to our story?  I suppose the only real lesson is that although arrestee DNA may supplement offender DNA in solving cold cases of murder, rape, and other terrible crimes, sometimes the crimes may be a bit less terrible (though still, for other reasons, reprehensible).  But, in the context of this case, and its flag of communist Vietnam, it more fitting to take from the moral from a return to the Eighteenth of Brumaire and the quotation from Karl Marx that opened my other blog post on the California consequences of Maryland v. King:

“Hegel remarks somewhere that all great world-historic facts and personages appear, so to speak, twice. He forgot to add: the first time as tragedy, the second time as farce.”

Hank Greely

• United States v. Pool looks superficially similar on the harmless error point, but I think it isn’t.  This is an earlier Ninth Circuit case on a similar issue around pre-conviction DNA collection. In it a three judge panel found constitutional a federal statute requiring a defendant to provide a DNA sample as a condition of bail.  That appeal concerned solely the collateral issue of the DNA sample; the underlying criminal case had not been decided.  The case was accepted for rehearing en banc, but the en banc panel dismissed the case before argument as moot because Pool had pleaded guilty.  That’s not really a harmless error determination (he would have to give a DNA sample anyway after his guilty plea), but the issue of whether he should have to give a DNA sample as a condition of bail was moot, as he was no longer seeking bail.