Kendall Coffey on the legal rights of suspects Part 3

Spinning the Law Kendall Coffey

Kendall Coffey on Spinning the Law with Steve Malzberg to discuss the legal rights of suspects Part 3

See Part 1 here:
MALZBERG:  All right, we’re talking to Kendall Coffey, a famed attorney and author of a book called Spinning the Law, and we’re spinning the law with him.  Let’s go with something that happened—I believe this was on Monday, which seems like forever ago, given the news week we’ve had—the Supreme Court, the US Supreme Court decided to stay out of a debate by deciding not to hear a challenge to a New York state law that requires those who want to carry a concealed handgun, well, they have to show special reason before they can get a license.  New York is one of those states that have a very high level of—

COFFEY:  They’re looking to address the issue, the issue being, what are the rights with respect to the possession of guns outside the home.  We know about the two landmark Supreme Court cases that in your home there’s a Constitutional right under the Second Amendment.  But they haven’t really mapped out the rules yet outside the home.  [unintelligible] the right to make the point wanting the case that really sets the stage for the kind of decision they want to reach.

So they could just be trying to be very selective.  There are some other cases in the pipeline on this very issue that might give them the chance to address the question of what are the rights of firearms outside the home.  And the other thing, Steve, you gotta be realistic about—right now there’s a lot of anguish still felt in this country about some recent fire gun tragedies.  If you’re the Supreme Court, you’re not gonna be swayed by that in terms of how you decide the case but you might want to look a little farther down the road before you reengage—

MALZBERG:  [unintelligible] a little bit?

COFFEY:  I think so.

MALZBERG:  Although they could obviously never be sure that once they take it, something wouldn’t happen in the interim.  The Supreme Court was gonna hear a case of a patent on genes—(laughs)—I just thought it was Dungarees—

COFFEY:  (laughs) Yeah.

MALZBERG:  ‘Cause I just thought—and no one in the control—they’re so young, they don’t even know what Dungarees are—but it’s genes, it’s human genes, it’s, for instance, from what they said, you could assume they expressed some doubts about the legality of a company having an increased risk of, you know, of cancer or some other illness.

COFFEY:  And here’s the debate:  On the one hand, there’s the view that, look, the genes are there inside your body.  They’re part of, you know, human chemistry, in effect.  They’re part of your molecules.  So simply finding them and saying, These kind of mutated genes could, in fact, be a strong indicator of breast cancer—that’s just talking about something that’s already in your body, like, why do you get a patent on that?  Because normally patents are processes, so if you have, for example, medical equipment that in some fashion identified the genes and did something to treat them, that would be patentable.

But just finding them and “isolating” them, is that something that should be a patent?  Well, the Patent Office is given tens of thousands of those patents up to now based on the not unreasonable premise that–Look, I want companies to invest millions and millions of dollars in their ability to identify which genes cause which problems, especially with respect to cancer research, but there are many other applications.

If I tell them, they spend millions of dollars and a bunch of years to find what kind of genes may cause cancer, and then they have basically no legal rights to protect the results of that investment, why on Earth would anybody want to spend all that money on this kind of cancer research?  That’s the debate, and it’s a legitimate question, and the Court seems to be skeptical about allowing these kinds of patents, but I think it’s looking for a middle ground so that the research and the investments have some protection.

MALZBERG:  Yeah, I know, good point.  I’m gonna save the Macdonald suit for next week because it’s so bizarre, and I don’t really want to get into it right now, but I do have one more quick one.  I think I gave this to you:  The Supreme Court, yesterday, limiting the ability of police to take involuntary blood samples from suspected drunk drivers without a search warrant.  It was an 8 to 1 vote on the general point that police cannot always take blood samples without a warrant but they [unintelligible] which is not all that rare, that they kinda leave this wide open for future challenges.

COFFEY:  Yeah, and if you’re a police officer, you don’t want to make an arrest, undertake the testing of a DUI suspect, then a DUI defendant quickly, and have it all thrown out—because that’s what’s going to happen in the particular case that occurred here.

Somebody had a 1.5, well above the [unintelligible], do they have to get, find a judge somewhere and get, in effect, a search warrant in order to do a blood test?  Blood testing’s the most reliable way to measure alcohol content—we use breathalizers, there are other things you can do—but they’re not as reliable as a blood test.  The problem is, the longer you wait after a blood test, guess what?  The alcohol level goes down.  You could test just about anybody the next day, and there’s not much problem.


COFFEY:  It takes a day to get a search warrant.  So it’s a difficult question because police have no guidance.  I think they’re gonna be very reluctant to do involuntary blood tests until the Court does a little more homework on this and gives them a roadmap as to what they can do and what they can’t do so that their cases aren’t going to get thrown out by good lawyers who challenge the blood tests.

MALZBERG:  Kendall, always a pleasure, sir, and always very grateful for your time.   Thank you very much.

COFFEY:  Okay, Steve, thanks for having me on.

MALZBERG:  My pleasure, take care.  Kendall Coffey, ladies and gentlemen.