September 21, 2007.
Appeal from the United States District Court for the District of Massachusetts, Robert E. Keeton, J.
Dina Michael Chaitowitz, Randall E. Kromm, Brian T. Kelly, U.S. Attorney's Office John Joseph Moakley Courthouse, Boston, MA, for Appellant.
Terence P. Noonan, Noonan Noonan, Needham, MA, Tracey Maclin, Boston University Law School, John Reinstein, ACLU Foundation of Massachusetts, Boston, MA, for Defendant, Appellee.
ORDER OF COURT
Pursuant to First Circuit Internal Operating Procedure X(C), the petition for rehearing en banc has also been treated as a petition for rehearing before the original panel. The petition for rehearing having been denied by a majority of the panel of judges who decided the case and the petition for rehearing en banc having been submitted to the active judges of this court and a majority of the judges not having voted that the case be heard en banc, it is ordered that the petition for rehearing and petition for rehearing en banc be denied.
A statement joined by two of the panel judges follows.
LIPEZ, Circuit Judge, and GIBSON, Senior Circuit Judge.
We acknowledge that the 2007 study on "junk DNA" cited by appellant in his petition ("Encyclopedia of DNA Elements (ENCODE)") appears to describe the type of scientific work that the opinion recognized could be significant, in future cases, in balancing the interests at stake. See opinion at, 504 F.3d 1, 13. However, the study was not part of the record in this case, and it would be inappropriate for us to consider it as a basis for rehearing. If the cited study proves to be an accurate depiction of the developing science, such evidence and other relevant factors can be considered when our court next considers the issue.