DNA-case ruses damage integrity of legal system

Should the police be allowed to pose as lawyers, even though state law makes it a crime to do so?

Should the police be allowed to open your private mail and search it, even though state law makes it a crime to do so?

Should the police be able to do these things without a court order or a search warrant?

If your answer to these questions is no, guess again. If you live in Washington, the answer to all three questions is yes.

The reason? The trial court's ruling in State v. John Athan. The decision, if upheld, could damage the right to privacy and the integrity of our legal system.

The legal showdown began when police sought to solve a 1982 homicide, the death of 13-year-old Kristen Sumstad of Seattle. Evidence of intercourse was recovered from the scene. In 2002, a male DNA profile was identified using new technology.

The police checked the male profile against a DNA database of convicted felons. No match resulted. One other name had come up in the investigation, although a detective referred to it as "rumor." That name was John Athan. He was not in the database.

In 2003, Athan was married, had a stepson, and had a successful construction business in New Jersey, where his mother and other relatives resided.

The police wanted a sample of Athan's DNA. They sent him a letter from a fictitious Seattle law firm. Posing as lawyers, the police asked Athan to be their "client" in a "class-action" lawsuit pertaining to parking-ticket overcharges. The bogus lawyers asked Athan to fill out a form and mail it back to them.

The "law firm" letter was a lie from start to finish.

Athan dutifully filled out the form, wrote a personal note to his "lawyers," and mailed the documents back to Seattle. Upon arrival, the envelope and its contents were opened, photographed and tested, all without benefit of a search warrant. The DNA from inside the envelope matched, indicating that Athan had sex with Sumstad sometime prior to her death.

Athan was charged with murder and arrested.

Illegally seized evidence is not admissible in court. We asked the trial judge to exclude the DNA evidence, on three different grounds.

First, posing as a lawyer is a crime under state law. The law was enacted to protect citizens against ruses and scams. We argued that posing as lawyers is a ruse the police cannot use.

There are a few prior cases in the United States where police or prosecutors posed as lawyers to trick a citizen-suspect. The courts always rejected such tactics.

Second, opening a sealed letter or envelope intended for another person is a crime under the state privacy act. We contended that the statute was violated because lawyers, not the police, were the intended recipients of Athan's mail. We urged that private mail should not be opened or searched without a warrant.

Third, the state constitution explicitly protects our right to privacy. Government employees cannot disturb our private affairs without "authority of law" — a court order or search warrant. Under state law, the government cannot obtain your DNA without your consent. A court order is required. We urged the court to protect privacy and hold that the seizure and search of the letter required a court order or a warrant.

The trial judge rejected all of these arguments. The judge agreed that the police broke the law but, in effect, held that they could profit from their law-breaking.

The Athan decision appears to be the only case in American history in which a court has approved of the police posing as lawyers.

The case went to trial. The DNA evidence was the centerpiece. The jury acquitted Athan of first degree murder, but convicted him of second degree murder. Sentencing is pending. The case will be appealed to the state Supreme Court.

In the meantime, the trial judge's decision may have the following consequences for Washington citizens:

• Government employees can lie to you and pose as lawyers and even ask you to be their "client," in an effort to get personal information from you;

• If you send mail to a person you believe to be a lawyer, the government can open your mail and photograph and test the contents;

• Government agents can do all of these things without probable cause, a court order or a warrant.

Unless the state Supreme Court acts, these consequences may become embedded in our law. The high court must prohibit police from posing as lawyers. The court must protect the privacy of mail and the integrity of our legal system.

John R. Muenster is a Seattle attorney who represented John Nicholas Athan in his King County Superior Court trial last month.