Three years ago, Maryland Attorney General Doug Gansler championed a new law to expand the use of DNA by law enforcement agencies. Last month the Maryland Court of Appeals blocked a key provision of the DNA Collection Act — allowing police to collect samples from suspects before they are charged. He joins us to discuss the short and long-term effects of the ruling.

Guests

  • Douglas Gansler Maryland Attorney General (D)

Transcript

  • 12:06:40

    MR. MARK MCDONALDFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your community with the world. I'm Mark McDonald, WAMU program director, sitting in for Kojo. Later in the broadcast, Washington Consumers' Checkbook navigating the confusing world of medical services, but first, it's a powerful and controversial tool for closing cold cases.

  • 12:07:10

    MR. MARK MCDONALDThree years ago, Maryland changed the way it collected DNA from criminal suspects, taking swabs from the mouths of people arrested but not necessarily convicted of crimes, like rape or burglary. Prosecutors say the new DNA database is helping identify dangerous criminals and generating evidence that could help resolve 190 unsolved cases. But defense lawyers and civil liberty groups dispute those numbers, and they say it violates our constitutional rights against unreasonable searches.

  • 12:07:43

    MR. MARK MCDONALDLast month, Maryland's highest court agreed, reversing a life sentence for a convicted rapist who was swabbed after he was arrested for a different crime. Douglas Gansler, Maryland's attorney general, says he intends to appeal that decision to the Supreme Court. Douglas is with us. Good afternoon.

  • 12:08:00

    ATTY. GEN. DOUGLAS GANSLERGood afternoon.

  • 12:08:01

    MCDONALDThis is something that's -- this issue is something that you spearheaded in 2009, I understand. Why is it such an important issue in Maryland?

  • 12:08:09

    GANSLERWell, it's a critical issue now in Maryland because the court of appeals, as you mentioned, overturned our DNA Collection Act, which every federal court in the United States that's looked at this issue and every state court in the United States that's looked at this issue, except for Minnesota, has found to be constitutional. There's really no difference between the DNA Collection Act and taking fingerprints. There's a lot of other things we could talk about.

  • 12:08:35

    GANSLERBut it's some -- at this point, what we've done is we've asked the court of appeals to stay their -- the enforcement of their decision, so that we don't lose some rapists and murderers and that kind of thing during the time between now and when the Supreme Court decides whether or not to hear our case. We're confident -- well, we're hopeful that the Supreme Court will take our case. We believe if they do, we'll win certainly 9-0 given the legal landscape on this issue.

  • 12:09:02

    MCDONALDNow, this indeed in 2009 was called the DNA Collection Act. Try to give us some background on what this exactly allows law enforcement officers to do.

  • 12:09:13

    GANSLERSo what the DNA Collection Act allows law enforcement officers to do is, upon somebody's arrest for a violent crime -- that is, there's probable cause to believe that this particular individual has indeed committed a violent crime -- then during the processing of that person, law enforcement can take a Q-tip and literally touch it against the inside of their cheek for a second or two and then bring it -- take it out and put it into a jar.

  • 12:09:40

    GANSLERThe issue there is the court of appeals says, well, that's an invasion of somebody's privacy. But, of course, the Supreme Court has said, at the time of arrest, you can do strip searches of these people. You can certainly take blood tests of these people. You can fingerprint them. Even fingerprints are more intrusive because you get the ink on your 10 fingers for an hour or so afterward.

  • 12:10:01

    GANSLERAnd if you just think about what also happens when somebody is arrested, they do a full body pat down. They can look in their -- if they're in they're home, they can look around their house for private information. So this is really no different than fingerprints. So what they do is they take that DNA, and they put it into the computer and see if it matches any samples that were taken and left at a previous crime scene we called a cold case.

  • 12:10:24

    GANSLERIf there's a hit, then they -- then you get a warrant, and you take another DNA specimen to match that specifically with the DNA that was taken at the crime scene. We've been able to solve many cases. I personally have tried one of these DNA cold cases in Montgomery County that they thought would never be solved because, you know, these people are breaking into homes. They're raping somebody, and then they're leaving.

  • 12:10:45

    MCDONALDYou can join the conversation at home or in the car or wherever you are. You can call us at 1-800-433-8850 or email us at kojo@wamu.org. Maryland's Atty. Gen. Douglas Gansler is with us. What kind of crimes does this apply to? Are we talking about, you know, DUIs, or is it serious...

  • 12:11:04

    GANSLERYeah.

  • 12:11:05

    MCDONALD...violent crimes?

  • 12:11:06

    GANSLERIt's serious violent crimes, and that's when you get the DNA swabbing. But, you know, remember, we actually fingerprint for much less, like DUIs and shoplifting. We fingerprint everybody. Nobody has ever had an issue with that because it's not an invasion of privacy in any way, shape, or form. The invasion of privacy in the particular case that we're talking about, that the court of appeals overturned, was when the defendant broke into a 53-year-old woman's home while she was watching television, beat her up, raped her and then left. That was the invasion of privacy.

  • 12:11:34

    MCDONALDThis is the Alonzo Jay King Jr. case.

  • 12:11:36

    GANSLERRight. And that was where the invasion of privacy happened. And here we are saying, well, let's take this sample and match it against any known samples in a random way on a computer. It's interesting that the ACLU and defense lawyers are against it because you would think, with so many cases that come to light that are -- where convictions are based solely on eyewitness testimony, here you actually know who committed the crime.

  • 12:11:59

    GANSLERSo it inculpates that person, but it also exculpates everybody else. That is, if this person committed -- if it's this person's DNA, that means it's not whoever might have been charged with the crime or suspects of the crime, they're now exonerated.

  • 12:12:12

    MCDONALDSo that was a particularly harrowing case, and that is still in abeyance. Are there similar cases to that? Are there similarly serious cases?

  • 12:12:20

    GANSLERWell, it's actually not in abeyance. The court of appeals overturned it and sends it back for retrial, and that's the biggest piece of evidence. There really is not much other evidence. So there are many other cases like it. And the question is: What will happen to those cases, and what happens in the future? If we don't -- we had this incredible -- we have this tool. We live in the 21st century. We're able to -- with completely, the most minimal intrusiveness is, say, open your mouth. They touch it with this -- a Q-tip and take it out.

  • 12:12:44

    GANSLERWe can actually solve some of these cases, these people that are living with this each and every day thinking their case will never be solved, now are able to -- we're able to have those cases solved. So this is important into the future. Now, as I mentioned, every other -- court has looked at it and said, of course, it's constitutional. We're hopeful that this will go to the Supreme Court.

  • 12:13:01

    MCDONALDLooking at it from the citizens' point of view, you know, if I were to be arrested for something and then, you know, I would feel like if there was a DNA swab taken of me and I'm found innocent, what happens to that swab? Do they get rid of it? Do they keep it forever? Am I then shared -- is my swab shared with other databases around the country?

  • 12:13:19

    GANSLERNo. It has nothing to do with what happens subsequent to your arrest. At the time of the arrest, there's probable cause to believe that you committed a violent crime. And as part of the booking process, with all the other things that surround that arrest, including fingerprints, you -- they will take that DNA, and they'll just put it into the computer. If it matches, it matches. If it doesn't, it's done with.

  • 12:13:40

    GANSLERBut there's a database, a bank of -- the FBI has -- it's called CODIS -- that has all of these DNA samples, known samples. Now, when criminals commit crimes, sometimes they leave fingerprints behind. Sometimes they'll leave DNA behind depending on the type of case. Now, we'll have -- now, we have both tools to be able to solve these cold cases that need to be solved.

  • 12:14:01

    MCDONALDBut does that mean innocent people's DNA would end up in that FBI database? Or does that get destroyed?

  • 12:14:07

    GANSLERThe database is the database of the samples taken from the crime scene...

  • 12:14:12

    MCDONALDRight.

  • 12:14:12

    GANSLER...so your innocent sample doesn't get into that database. It's just -- you're trying to get a hit against the ones that are from a crime scene. If there's a hit, then they call the police department where that occurred. So you're -- they're testing it. If it hasn't been done, then it's not going to be entered in that database.

  • 12:14:27

    MCDONALDBut just to be absolutely clear, if you're innocent of the crime, your DNA does not wind up in the database?

  • 12:14:32

    GANSLERYes. But it's also your -- by the way, it doesn't mean you're innocent of the crime. It means you're found not guilty, but that's a semantic difference.

  • 12:14:36

    MCDONALDOK. OK. So we're having a big debate on this in the coming weeks on "The Kojo Nnamdi Show" with a bunch of legal experts. So we look at this in general. We're talking right now specifically about Maryland and its experience. And I'm going to the phones. And Martha is in Sykesville. Hi, Martha. Martha, are you there?

  • 12:14:57

    MARTHAYes. Can you hear me?

  • 12:14:58

    MCDONALDYes.

  • 12:14:59

    MARTHAOK. I'm calling because I think that if there's probable cause, they should definitely take a DNA sample. And I think that if the person is truly innocent, then the DNA sample will rule them out. And so, now, I'll just let you chew on that, and I'll listen off the air, off the line.

  • 12:15:19

    GANSLERWell, the DNA sample that they take, they're taking that to compare to other crimes, not the one for which that person was arrested necessarily. But I think you're absolutely right. That's -- we live in a time when we can do this. We can solve crimes that otherwise would go unsolved. Major -- look, if someone is leaving their DNA behind at the crime scene, usually it's a rape, but not always. But there are major crimes that people -- citizens want rapists off the streets.

  • 12:15:44

    GANSLERThey want murderers off the streets. And we know because everybody has a unique DNA profile. Everybody has a unique fingerprint. So we have that information. And if we can compare it to this -- to the computer and see who's in there, it's great. And, you know, a lot of people, civil rights people say the DNA gives you so much more than fingerprints. You know, they're only using the 13 what they call junk identifiers.

  • 12:16:09

    GANSLERIt's only an identification. It's not any -- they don't have any interest in -- and it's expensive. And they wouldn't -- the law says they're not allowed to. And there's no allegation that anyone ever has used the DNA for any other purpose other than to put it into this computer and see if there's a hit from a cold case.

  • 12:16:25

    MCDONALDSome of the allegations, I guess, that the opponents of the law cast a very specific one is to prevent -- what's to prevent police forces from arresting people as a pretext to getting the DNA sample?

  • 12:16:36

    GANSLERWell, there's a couple of things. First of all, I suppose police officers can always arrest somebody on a pretext. But you need probable cause. And they would probably get fired if they did it. But they also would need DNA -- they wouldn't want the DNA. It's expensive. It costs money. There's no -- unless they had a reason to believe that this person committed a crime. What they're more likely to do, which by the way they can still do, is, you know, follow the person around or give that person a Diet Coke.

  • 12:17:00

    GANSLERThey take a sip of the Diet Coke. They put the Diet Coke down. They can take the Diet Coke. Now, they have their DNA, which is why this decision is just so silly. And even in Maryland, same kind of scenario happened in two different cases. One, somebody who's eating a meal from McDonald's, you know, they gave them food from McDonald's. They put it down. They left the room.

  • 12:17:17

    GANSLERThey took that -- the residue from the food and made -- and got their DNA sample. In another case, they took the sweat from the chair from a -- and got DNA from a suspect at that point. Now, this was before the DNA Collection Act. So they -- now, they can just swab. I mean, it's all -- it's much more procedurally sound.

  • 12:17:36

    MCDONALDWhat about the claim that the act of taking the sample and placing genetic information into the grid makes innocent people a target of a kind of sinister surveillance?

  • 12:17:47

    GANSLERI suppose there's a lot of conspiracy theorists out there. I mean, it's no different I suppose than fingerprints in this case. But, I mean, it's actually silly. They're using it to solely for identification purposes because everybody's -- the 13 loci that they're using on the DNA is specific to that one person, and they're putting it in solely to identify whether that person's DNA is the same as the identity of somebody who left DNA at a crime scene.

  • 12:18:15

    GANSLERSo I -- you know, I think there are many far-fetched theories out there in the world. But no one -- in this case in particular, no one accused anybody of that. They just -- they merely said that just the very taking of the DNA at the time of arrest somehow violates the Constitution. Of course, there wasn't really DNA back then when they -- the DNA taking when they were running the Constitution. So it's relatively subjective analysis.

  • 12:18:37

    MCDONALDWe have Dekara (sp?) calling in Washington, D.C. Dekara, you're through to Douglas Gansler.

  • 12:18:43

    DEKARAHi. Thank you for taking my call. I actually have two points for your speaker. I think it's disingenuous to say that you won't be checking any database at all. But I'm sure you won't be checking the database for comparison of the DNA or evidence that's collected at that same crime scene but for future crimes. So, for example, if you're arrested and then later released, they have you in a database, so that if you're arrested for something five years later, they can take that sample to compare for something in the future.

  • 12:19:15

    DEKARAAnd also, secondly, I really think it's disingenuous to say that it's the same thing as a fingerprint because it's not -- once you collected somebody's DNA, you can then use it for -- OK, you've collected the DNA. You can say, OK, we have a hit for this person. It's not them, but it's a close male relative. So it could be a first cousin. And so now, you have the means and the basis to just go and randomly harass other citizens.

  • 12:19:41

    DEKARASo I think it's really disingenuous to say that it's the same as a fingerprint. A fingerprint is unique. You can't tell who's in the same genetic DNA pool based off of a fingerprint, but you can when you collect a swab from the inside of somebody's mouth.

  • 12:19:56

    GANSLERYeah. I mean, I don't know why they would want to keep it in a database for future arrests. The fact that they took their DNA five years earlier, if they -- if there's not a hit at that time, it's a little unclear why they would want to spend the time, money or effort to do that, or whether they would want to try and match with people's families. I mean, it's a little -- there's no accusations or any of that going on in this case.

  • 12:20:17

    GANSLERAnd I know you're from D.C. And D.C. and Virginia, by the way, both have upheld as constitutional this very same process, DNA collection, as, you know, like I said, pretty much everywhere else. You know, there -- I guess there's lot of insidious potential uses of DNA, but none of those had been -- there's no accusations of that effects. In fact, it would be against the law.

  • 12:20:39

    GANSLERIt is against the law to use the DNA taken at the time of arrest of a violent offender where there's probable cause the person committed the crime to use it for any other purpose other than to put into the DNA database to see if there's a match with some previous crime. It is different than fingerprints in the sense that it's, you know, cells from the inside of a cheek as opposed to a fingerprint.

  • 12:21:02

    GANSLERAnd they're both equally unique to that particular individual. But in some crime scenes, the criminal leaves behind fingerprints, and they put those into a computer database that they match with fingerprints, and then others, they leave the DNA. So we need to have both tools available to us in law enforcement.

  • 12:21:19

    MCDONALDOK. Thanks, Dakara, for your call. Let's go and take a call from Tom, who's also in Washington, D.C. Hello, Tom. You're on the air. Tom, are you there? Tom's not there. Doug, the Maryland Public Defender's Office and some of the civil rights organizations say that the database disproportionately includes samples from African-Americans and that 60 percent of the samples are from black arrestees. Is that true?

  • 12:21:45

    GANSLERI have no idea. It's -- they -- there is nothing in the law, nor is there any accusation that they're only taking DNA samples from African-Americans and not other people. They're taking DNA samples from everybody who's -- from whom there is probable cause to believe they've committed a violent crime. And if the -- if it happens to end up having more African-Americans in the database, that's -- it's because a race-neutral process.

  • 12:22:08

    GANSLERThey take it from everybody. So it's a little unclear.

  • 12:22:10

    MCDONALDRight.

  • 12:22:11

    GANSLERI mean, you know, I -- just on that point, though, I just -- it's baffling to me that the ACLU and defense lawyers would not be in favor of this because -- well, you see, so I've been a prosecutor -- I was prosecutor in the District of Columbia under Eric Holder at the U.S. attorneys office, been the state's attorney of Montgomery County on the local level, now the attorney general on the state level and seen so many warrants.

  • 12:22:31

    GANSLERYou know, young African-American male, 18 to 25, blue jeans, white T-shirt, and that is a big roundup that happens next. And all the people are sort of --you know, there's a shadow over all these people that maybe they're suspects in this case. With DNA, you know exactly who committed the crime, and you know exactly who did not. That is everybody else.

  • 12:22:50

    MCDONALDRight.

  • 12:22:51

    GANSLERAnd so they should be for it.

  • 12:22:52

    MCDONALDThis issue of all databases is interesting. I mean, I know, just from the radio station here that stuff lies in computers and gets backed up for years and years, and the IT folks here have to tell us to go in and get rid of all this old stuff that's lying around. I mean, is that a possibility here?

  • 12:23:06

    GANSLERYou know, I suppose that a cold case gets so cold, it's freezing in the sense that nobody could still be alive that could've committed that case, and then maybe they -- that hasn't happened yet 'cause DNA hasn't been around that long. The database isn't for the taking of the new people. It's for the -- the database is of the crimes that have been committed where there's DNA remaining at the scene and there's no one to go along with it. So we don't know who the suspect is.

  • 12:23:32

    GANSLERWe don't know who the defendant is, so that -- it doesn't happen all that often where you don't find the criminal at that particular time. But it does happen, and it happens in many cases, including the case we were talking about, including the case that I tried, where this woman named (word?) Church had been -- same scenario -- watching television in her home, the guy breaks in, beats her up, rapes her and leaves. So thought about it every single day of her life until we called and said, hey, there's a hit. We found the guy that did this.

  • 12:23:57

    MCDONALDRight.

  • 12:23:57

    GANSLERAnd she got her day in court, and he got convicted.

  • 12:23:59

    MCDONALDWe've got Tom now in Washington. Hi, Tom.

  • 12:24:03

    TOMHello, how are you?

  • 12:24:05

    MCDONALDGood.

  • 12:24:06

    TOMI wanted to comment on two issues here. The prosecutor spoke about how -- a caller spoke about how, perhaps, police can go ahead and just arrest people in order to get this access to their DNA. The prosecutor stated that, oh, that probably wouldn't happen because the police will need probable cause. And additionally, if they do, they'll get fired. And, quite frankly, that's completely wrong. The police have great leniency to arrest people.

  • 12:24:35

    TOMNot only that, it -- there's been several investigative journalist articles, including The New York Times, where police were exposed to have lied on -- under oath in court cases, and they don't get fired. So that's ingenuous to think that, oh, we -- the police will not be arresting people for this. Second of all, this database -- again, we need to rely entirely on the good faith of the prosecutors and of the police.

  • 12:25:06

    TOMAnd that's a little disturbing to me when there are so many cases of misuse of evidence by prosecutors, by the police. In fact, two or three days ago, there was an article in The Washington Post about a D.C. prosecutor who withheld evidence from the defense. In this type of an environment, to give the police access to the DNA of people who have not even been convicted and, additionally, to have this information there to be hacked or to be used by the police however they want is very disturbing to me.

  • 12:25:41

    GANSLERI think...

  • 12:25:42

    MCDONALDI think he's talking about a Brady violation there in the second point.

  • 12:25:43

    GANSLERYeah, those are all -- and that's why I was going to say. I mean, all these issues are very real issues, and there certainly all the time are people who are arrested, who ultimately are found not guilty or that actually didn't even commit the crime. It happens all the time. And there are things that are done. But I would ask Tom -- and I'm sure the answer is it's a rhetorical question -- but to name the one person ever in the history of the United States that's been falsely arrested by the police upon the -- for a violent crime with probable cause, that the sole motive was to get their DNA.

  • 12:26:13

    GANSLERI might -- you will never -- you won't be able to find that person because it wouldn't make sense to do it. You can get their DNA in so many other ways. Just see him in a restaurant. When they leave the table, pick up their fork and get their DNA off of that. They wouldn't do -- make a (word?) arrest for this particular reason. And so, you know, and if they did, I mean, even if they -- they would have to know that this was -- this person was a suspect in the cold case.

  • 12:26:37

    GANSLERIt really wouldn't make sense. It doesn't happen. Though I do agree with all the other points that were made, that there are cases that -- where there are mistakes or they're either intentional or not intentional or the police, you know, there may be (word?) arrest. But that's not what's happening in the DNA context.

  • 12:26:51

    MCDONALDOK. Tom, thanks for your call this afternoon. We appreciate it. We'll come -- we'll take a break and come back, talk about some other things with Doug Gansler, the attorney general of Maryland. This is "The Kojo Nnamdi Show." I'm Mark McDonald, sitting in for Kojo.

  • 12:28:42

    MCDONALDWelcome back. You're listening to "The Kojo Nnamdi Show." I'm Mark McDonald, the program director at WAMU. I'm sitting in for Kojo on WAMU 88.5. With me is Doug Gansler, who's the attorney general for Maryland. Let's turn to health care, and you're embroiled in the battle that's going on in the Supreme Court right now over what's been called Obamacare. And it's a pretty tough battle between the Democrat attorneys general on one side and the Republican attorneys general on the other at this point.

  • 12:29:07

    GANSLERYeah. And it's Obamacare if you don't like it. It's the Affordable Care Act if you do. And it's actually one of the rare times when attorneys general have gotten what I view to be political. I mean, clearly nobody -- and the issue is about whether or not Congress has the ability under the Commerce Clause to pass the Affordable Care Act. And, clearly, there's no one with the intellectual honesty that believes that they don't.

  • 12:29:28

    GANSLERThis is the same Congress that can make you pay your Social Security, can make you pay your taxes, can make you have insurance to drive on the roads, can send your kids off to war. And they don't even dispute that the health care system is interstate commerce because it's 17.6 percent of our GNP. They just say, well, but they don't have -- here's the distinction. They don't have the ability to make you join commerce by buying health insurance.

  • 12:29:50

    GANSLERBut even on the Supreme Court jurisprudence in a case called Wickard in 1942 and then later in a 2005 case written by Justice Scalia, says, yes, they can make you join commerce. So they really don't believe it, but it's become sort of a political issue where all 26 Republican attorneys general signed on to a brief, their amicus brief, saying, well, this should be overturned. Commerce doesn't have the ability.

  • 12:30:13

    MCDONALDMm hmm.

  • 12:30:14

    GANSLERWe drafted in Maryland the brief saying yes, they do. Whether or not you like the Affordable Care Act or what's in it or not, clearly commerce has the ability -- Congress has the ability to pass the law. The other Democratic AG signed on to our opinion, so we're the lead amicus. Our brief was, in fact, cited during the hearing.

  • 12:30:30

    GANSLERYou know, I'm optimistic that when it comes out later in June, there'll be a finding 6-3 or something of that nature that, in fact, Congress does has -- have the ability because -- most -- by the way, none -- most of these attorneys general, most people, 99 percent of the people listening to this conversation haven't read a word of the Affordable Care Act. No one really knows what it is, but it's become a political issue.

  • 12:30:51

    GANSLERAnd so I think that the court will rule in favor 'cause the ramifications, the consequences of not doing so -- not really in terms of the Affordable Care Act, but in terms of what that means for Medicaid, Medicare -- would be draconian.

  • 12:31:03

    MCDONALDBut, you know, there was a time in Congress when everybody was saying, oh, we've got to come together. We've got to broker a deal, and it seems now that it's as polarized as ever at that level.

  • 12:31:11

    GANSLERIt's very polarized. And it's unfortunate. And I think it's why people are cynical about politics, you know, and the attorney general ranks have never really been that way. And so there's an article in The Washington Post this morning about the comparison between -- about the Virginia Atty. Gen. Ken Cuccinelli in me and how we sort of look at -- most cases the same in terms of state's rights. But on the politicized issues such as the Affordable Care Act and immigration, we split.

  • 12:31:38

    GANSLERAnd so I think, you know, this is -- it's unfortunate, but that really goes -- what happens when people talk about the Supreme Court case, they immediately morph into the issue of, is the Affordable Care Act a good thing or a bad thing? And that's not what's at issue in front of the Supreme Court. The Supreme Court is about Congress' authority to pass the law -- that's the essential issue -- and create the mandate. So it's -- it'll be interesting to see when they come out. I don't think, you know, the other side says, well, if they can do this, they can make everyone eat broccoli. Well, that's kind of silly.

  • 12:32:07

    MCDONALDYou can join this conversation with Doug Gansler, the attorney general of Maryland, by calling 1-800-433-8850. Email us at kojo@wamu.org. Doug, how much does this -- you know, we're coming up to an election season, and how much, going forward, not just the national elections, but forward into future year elections in the states, how much does it become a political issue and a campaigning issue almost...

  • 12:32:32

    GANSLERWell, I think, clearly...

  • 12:32:33

    MCDONALD...at the attorney general level?

  • 12:32:34

    GANSLERYeah. Well, at the presidential level, it'll clearly be a political issue. The question is, how -- who does it help? You know, if they overturn it, does that give, you know, people a realization that they should always have, whether it's a local or federal job, that who is the president matters more than anything else perhaps because they put the justices on the Supreme Court.

  • 12:32:53

    GANSLERI don't think the justice of the Supreme Court will look at this issue and say, well, if we decide this way, it's going to help President Obama, if we decide that way, it's going to help Mitt Romney. I think there'll be some ideological differences but not necessarily political. On the...

  • 12:33:05

    MCDONALDOK. I'm kind of being cheekier that that here.

  • 12:33:07

    GANSLERYeah.

  • 12:33:07

    MCDONALDI'm trying to say -- I'm looking at the list of attorneys general that you're up against: Pam Bondi from Florida, crucially, Ken Cuccinelli in Virginia. It seems like there's a, you know, the platform under which some of these state attorneys general can further their own political careers.

  • 12:33:24

    GANSLERWell, I think that's right because, on a jurisprudence level, obviously, Congress can do this. So it's become a political issue. It's something that's red meat for people in those red states, attorneys general to run for governor.

  • 12:33:34

    MCDONALDMm hmm.

  • 12:33:36

    GANSLERThey -- we all do. You know, if you -- Pennsylvania, the governor was the attorney general. Virginia right below is the attorney general -- the governor was the attorney general.

  • 12:33:44

    MCDONALDRight.

  • 12:33:45

    GANSLERSo it does happen. I think it's a great issue. The Republicans will use, when they run for office, kind of anti-government, you know, they're forcing this on us kind of arguments.

  • 12:33:53

    MCDONALDBut, I guess, on the other side then there's, you know, there's also the same opportunity for guys like you, right?

  • 12:33:58

    GANSLERWell, yeah. But, you know, because no one's really read the Affordable Care Act or really knows what it is, most Democrats think, yes, you know what, we -- people should be -- have the right to health care. And the arguments that we make, you know, sort of the (word?) level, take away from the legal is, well, look, everybody in Maryland right now, on average, is paying $1,000 higher premiums to pay for uninsured people.

  • 12:34:19

    GANSLERWe're paying 7 percent every time you go to the hospitals, a surcharge to pay for the uninsured. We're paying for them anyway. So we might as well make a system where people have the right to their health care and we have -- everybody does and we go forward. So is it a political issue? Sure. When you're coming from the Supreme Court, not so much.

  • 12:34:37

    MCDONALDGo back and talk about the health exchanges. I know that's one initiative where Maryland has moved ahead and it was in the last legislative session, and you feel like there's been a lot of progress made then.

  • 12:34:47

    GANSLERThere has. We've been really -- you know, there's a lot in the Affordable Care Act that people in Maryland want to see go forward. We've started the process. I'm on the committee that's done this to start putting in the health exchanges. You know, it doesn't -- the Affordable Care Act doesn't really come into play until 2014. But Maryland's trying to get a jump on that so that we're prepared to do it. We'll do a lot of this without it being passed, but we'll do more of it if it is upheld in the Supreme Court. And we'll know later next month.

  • 12:35:16

    MCDONALDLet's take a call. We have Lia (sp?) in Gaithersburg, Md. Lia, you're on the line.

  • 12:35:20

    LIAHi there, Mr. Gansler. I followed your career a lot. I have a lot of respect for your career. But I think the initial part of this happened before you came in, but you were in office when a doctor I go to had been told by the attorney general he had to refund from administration fees he had paid. I don't know -- and so he did. He was required to refund the $40 administration fees. When I called the attorney general's office, you were in office at that point.

  • 12:35:49

    LIAI called and said, well, I go to two other doctors who also charge this yearly administration fee. I said, why can't I get refunds from these doctors? I was told that they're not going to do anything to these two other doctors. Why did one doctor get punished for charging administration fees while there are doctors all over the county still charging administration fees?

  • 12:36:12

    GANSLERI apologize. I don't know the particular case. We get about 35,000 a year, and this one I don't know. But I can -- one thing you could do is actually call our office, and we have something called the health education advocacy unit, which is a national model where we are -- we're available to talk about issues involving doctors and patients where patients think that they should have been covered, for example, by an insurance company and the insurance company says, no, you're not. We mediate those claims.

  • 12:36:39

    GANSLERThey might be able to answer that specific question, but we would just be enforcing the law. In other words, there's a board, a medical board that we have a lawyer on. The medical board makes the decisions, which doctors to go after for what and which not to, and then we carry out their orders. So there may -- my guess is there is a distinction between the first doctor and the second and third that made it different. But I just don't know that specific case.

  • 12:37:05

    MCDONALDOK. Lia, thanks very much for your call. I want to move on, just a final question on health care. If the Supreme Court does rule to strike down Obamacare, what does that mean for Maryland, do you think?

  • 12:37:14

    GANSLERWell, I think we'll go forward with a lot of the pieces of it in terms of health care exchange, trying to get as many people covered as we can so the rest of us aren't paying for them. And it's also the right thing to do. I would be -- it would be very difficult to imagine that they strike it down because the -- then you're going to start looking at Medicaid, Medicare and other government-sponsored health programs.

  • 12:37:35

    GANSLERSo I think that's unlikely to happen, but if it did it, we'll just sort of regroup. I mean, then you put the federal government back at square one, and they're going to have to come up with something new and something that both sides are happy about, I suppose. But I don't think that's going to happen. I don't think Chief Justice Roberts would want his legacy to be associated with tearing down the thing that gives everybody health care in the United States.

  • 12:37:57

    MCDONALDLet's -- we've kept you far too long, Doug, as usual. But briefly on the foreclosure crisis, I read a table that showed that Prince George's County has, I think, exactly a third of all of the foreclosure crisis in the state...

  • 12:38:13

    GANSLERThat's correct.

  • 12:38:14

    MCDONALD...which was a horrendous number when compared to some of the other counties. Now, I know you've got some funding to do something there in Prince George's County.

  • 12:38:21

    GANSLERSo the attorneys general -- in a bipartisan way, we had 49 of us sign -- reach an agreement with the five major banks: Bank of America, Wells Fargo, JP Morgan and so forth. And there was a $26 billion settlement. We got the sixth most money here in Maryland, a lot of which is going to Prince George's County because we were disproportionally hit by the foreclosure crisis. In fact, we end up getting more money here, $960 million, almost $1 billion, than New York will get because of how hard we were hit.

  • 12:38:48

    GANSLERSo that money is going directly -- not to the state. It goes directly to people who are on the brink of foreclosure, who have been foreclosed upon or who are underwater so that they can stay in their houses. And it'll bring down the inventory of foreclosed upon homes, stand the foreclosure crisis and help turn the economy around.

  • 12:39:05

    GANSLERWe just -- it was announced a couple months ago. It was just filed within the last couple of weeks, and people are just trying to avail themselves that are eligible for these -- for principal reduction and loan modification. And they would just need to check our website, the attorney general's office, or call HOPE and get housing counselors to help them navigate this process.

  • 12:39:21

    MCDONALDWhat's the website for people to go to?

  • 12:39:23

    GANSLERIt's oag.state.md.us. I always just go on Google and type in Maryland Attorney General, and it comes up.

  • 12:39:30

    MCDONALDBackslash.

  • 12:39:31

    GANSLERExactly.

  • 12:39:31

    MCDONALDColon.

  • 12:39:32

    GANSLERRight, right. It's a little confusing.

  • 12:39:34

    MCDONALDI got it. Doug Gansler, thank you so much for coming today, for staying so long.

  • 12:39:37

    GANSLERThank you.

  • 12:39:38

    MCDONALDWe appreciate it. We'll take a short break, and in a moment, we'll be talking where to go and where not to go in the stores and online and in health clubs and in veterinarian practices with the Washington Consumers' Checkbook magazine. I'm Mark McDonald, sitting in for Kojo.

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