August 2012 Archives

August 30, 2012

D.C. Criminal Defense: Can an MRI Prove Innocence?

Advances in sciences and technology in recent years have significantly altered the prism through which evidence in criminal cases is viewed. xrayhead.jpg

D.C. criminal defense attorneys know the technology used to prove or disprove an alleged crime has shifted light years with the advent of DNA and other sciences.

Now, new technology has taken central stage in a Maryland murder case involving one Army Ranger accused of killing another. The defendant in the case has long contended his friend's death was a result of suicide.

His defense team says they are now able to prove it with MRI brain scan technology.

It's similar to a lie detector test in that it relies on biological measurements taken during questioning. However, lie detector tests, while sometimes used by police in the course of their investigations, are rarely used in criminal courts because they have been deemed flawed and largely unreliable. In other words, a person who is nervous about the testing may produce a false positive, while someone who is a cold stone liar could potentially pass with ease, say scientists.

The defense team in this case says that the technology has advanced, and that brain waves produce a more accurate result. In this case, it's a result that indicates he's telling the truth.

However, judges have yet to allow such evidence into the courtroom. This case was no exception, with the Circuit Court judge ruling that although the evidence was "fascinating," jurors wouldn't be allowed to see it. He based that decision primarily on the fact that scientists have yet to come to a consensus about the device's accuracy.

This technology was originally developed to study Alzheimer's patients. However, some neuroscientists say that using the scans of brain activity, they can tell with quite a bit of accuracy whether or not a person is being deceptive. The MRI measures not just a brain's structure, but it's activity as well. The test conductor will compare scans of the brain when the subject is purposely lying to those when the person purports to be telling the truth.

The defendant in this case is facing what will be his second trial, after an appellate court tossed his earlier conviction for the 2006 slaying of his fellow soldier, with whom he served a tour in Afghanistan and shared an apartment.

Prosecutors allege the two were drinking and smoking pot together and then went to a nearby VFW pool hall. Shortly before 1 a.m., the defendant called 911, sobbing that he had found his roommate in a pool of blood, shot in the head.

Detectives reportedly found the defendant covered in blood, and found the deceased soldier's body in a chair in front of the television, Oddly, though, they found no gun. The defendant then gave conflicting accounts of what occurred (which is not entirely shocking, considering the two had been abusing a number of substances).

Following his conviction and appeal, prosecutors are preparing for another trial. The defendant and his lawyers insist that he should be allowed to present the brain scan results. They say it's not the core of their case, but it is a piece of the puzzle that jurors should be allowed to see.

Independent studies have been conducted in at the University of Pennsylvania, Harvard University and in Hong Kong put accuracy rates of the test of between 90 and 100 percent.

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August 28, 2012

D.C. Defense: Charges in Fatal Shooting Dropped Due to Witness Credibility Issues

One of the two defendant's in a fatal shooting that stemmed from a botched robbery attempt at a convenience store will not face murder charges, with prosecutors citing a lack of evidence.peoplewalking.jpg

D.C. criminal defense lawyers know that because homicide is the most serious crime for which you can be charged, the evidence should be substantial in order for prosecutors to move forward with a case.

However, this doesn't always stop prosecutors from pressing ahead. This is why in every felony case it's important to have a skilled defense attorney who is adept at handling such matters, and is knowledgeable with regard to having evidence suppressed, challenging witness testimony and uncovering potential elements that may work in a client's favor.

In this case, the primary issue was witness credibility.

According to The Capital Gazette, a 19-year-old was charged with nine felony charges, including armed robbery and first-degree murder for the slaying of a convenience store clerk back in the summer of 2010. The 48-year-old employee was reportedly fatally shot while running away from the suspects.

Prosecutors say they have no doubt the teen was involved, but the witnesses who would testify to his involvement have all been convicted in another fatal shooting that happened at a pizza shop a few months later.

His co-defendant in the convenience store shooting reportedly pleaded guilty to murder and was sentenced to life in prison. He too was involved in the pizza shop murder, and was given another 30 years for that homicide.

Although there was surveillance footage of the homicide, it was grainy and not clearly visible as to who did what or even who was carrying the gun.

So ultimately, aside from the testimony of convicted murderers, there was no other evidence linking the 19-year-old defendant to this crime.

Still, he won't go free, as he too was convicted in the pizza shop murder, and was sentenced to 50 years in prison, though he could be released after 30 years. Prosecutors say this factored into their decision not to move forward with the convenience store shooting as well, saying they hope his other conviction will keep him behind bars for some time.

Although witness credibility became a key issue in this case, it can be a critical matter in many other criminal cases, both before and during trial. If a prosecutor suspects a witness may be lying or is simply not believable, he or she may choose to reduce the charges originally filed. However, this usually doesn't happen without some push from defense lawyers in convincing them that they don't have a solid case.

Other times, credibility is raised at trial, and it's up to the judge or jury to weigh whether to believe a witness or not.

Some of the ways that a good defense attorney can effectively question a prosecution witness's testimony would be to point out:

  • Inconsistency. Has the person's account of events remained consistent from start to finish? If not, why? Does the person have a bad memory or are they trying to hide something?
  • A history of lying. If a person has a proven history of lying about one thing or another, how can they be trusted to tell the truth this time?
  • Objectivity. Is there something the person has to gain by providing this testimony, whether financial or a reduced sentence for themselves or some other motivation that would cast doubt on their word?
  • Outside circumstances. Maybe the person isn't lying, but is there a likelihood they are mistaken? For example, was it too dark to reasonably have a good look at the defendant's face? Were they wearing their prescribed glasses or contact lenses? Was he or she intoxicated? What was the weather like? Were there any outside circumstances that could prevent the witness from providing an accurate account of events?

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August 20, 2012

D.C. Defense Attorneys Discuss Issue of Multiple Defendants

Police are searching for a group of more than a dozen youth who reportedly robbed and assaulted two people - one after another - on the main campus of Virginia Commonwealth University. crowd.jpg

D.C. criminal defense attorneys understand that neither victim was seriously hurt, but if those involved are convicted, they could be facing serious time.

D.C. Criminal Code 22-2801 addresses robbery, which is a felony that carries a sentence of between 2 and 15 years in prison. Assault, which is defined in D.C. Criminal Code 22-404 can be charged either as a misdemeanor or felony, depending on the circumstances, and could result in up to 3 years in prison if the alleged victim was injured.

In cases where there are a relatively large number of defendants, there are challenges for both the prosecution and the defense.

From a defense standpoint, you must always be concerned about whether one of the co-defendants will choose to cooperate with the state for a lesser sentence in exchange for their testimony against you.

This is a common tactic even prior to the plea deal phase. Police officers will threaten defendants, try to trick them into believing the others have offered up "the truth" and may even promise to let them go if they simply cooperate. Keep in mind that officers are allowed to lie to suspects, and the more people you have involved in a particular incident, the more likely one of you is to crack under the pressure.

Your best bet in these scenarios is to refuse further questioning until you can have your attorney present - no matter what they try to tell you to convince you otherwise.

But these cases are by no means a slam-dunk for prosecutors.

When you have multiple individuals involved in any given incident, prosecutors are often limited in being able to prove exactly who did what. Even with the presence of surveillance tapes (which are available in this case), footage may be grainy, the lighting may be poor and there could be enough doubt that one individual was any more responsible than the other.

Same goes for eyewitness evidence. When you've got multiple defendants, it's often very tough for a victim or witness to say exactly who was doing what and at what time.

In this case, police suspect a group of males between the ages of 17 and 22 years-old.

The first incident reportedly occurred as a man was getting out of his vehicle. He reported he was approached unprovoked and then punched. The group then crowded him and then robbed him.

Moments later, the same group reportedly approached a second person, a student who was walking by. Members of the group reportedly punched him in the back of the head and pushed him to the ground. He was then robbed of a pack of cigarettes in his pocket.

There is footage of the alleged incidents, but it does not appear as if faces are recognizable given the distance and the darkness of the street.

There are many ways in which a skilled defense attorney can help you if you've been involved in a crime with multiple defendants. Each scenario will vary on a case-by-case basis. In some cases, defendants may face trial together. While in other cases, a move to separate the cases may be in the best interest of a defendant.

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August 15, 2012

D.C. Appeals Court Limits Warrantless Search After Arrest

The District of Columbia Court of Appeals recently handed down a decision that affirmed your protection from a search without a warrant - a violation of the Fourth Amendment - even in cases where you may have been lawfully arrested. ammunition.jpg

D.C. criminal defense lawyers understand that the court in U.S. v. Taylor affirmed a District of Columbia Superior Court ruling holding that the nature of the crime doesn't automatically allow police to conduct a search without a warrant.

The case stems from a drunk driving case in D.C. Defendant Larry Taylor was accused of driving under the influence in 2010 after he struck another vehicle from behind. Metropolitan Police who arrived on scene a short time later determined he was intoxicated due to his slurred speech, the fact that he was unsteady on his feet and the smelled alcohol on his breath. He also admitted to police he had drunk two beers while at his sister's home several hours earlier, and he blew a 0.16 on the breathalyzer. Additionally, he failed a field sobriety test.

Taylor did not contest the drunk driving charge.

At issue was the search that ensued after Taylor was handcuffed in the back of the patrol car. According to police, the officer was looking in Taylor's vehicle for an insurance car when he found a loaded handgun.

Subsequently, a grand jury indicted Taylor for possession of an unregistered firearm, carrying a pistol without a license and unlawful possession of ammunition.

At a suppression hearing the following year, Taylor's defense attorneys argued evidence in the case (i.e., the gun and ammunition) was inadmissible because it was discovered during a search for which the officer did not have a warrant.

Prosecutors argued that the evidence was admissible because it had been obtained during a "lawful search incident to arrest." They contended that there was reasonable suspicion that officers may find evidence relevant to the crime of DUI by searching the vehicle, and relied on Arizona case law.

They further contended that there were "more facts than just any DUI" and that because Taylor knew police would be on their way following the accident, he had ample time to hide potential evidence relating to the DUI. The officer testified that in other similar DUI cases, he had found alcohol underneath the seats, in the console, or in the glove box or along side doors. The contention was that if a person seems reasonably intoxicated, than it is reasonable to assume there may be further evidence of that in the vehicle.

The trial court, however, disagreed, and granted the defense's motion to suppress the evidence, holding that the prosecutor failed to prove that there was probable cause that there may be evidence relating to the DUI in the vehicle.

The court held that allowing a search based on this sort of generalized evidence would result in a per se rule, which would essentially give officers the automatic authority to search a vehicle in the course of any arrest.

Prosecutors appealed that decision, but the appellate court upheld the earlier ruling.

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August 10, 2012

MD Officials Hope to Increase Penalties on Phone Threats

Your right to free speech is guaranteed under the First Amendment to the U.S. Constitution. gotmessage.jpg

However, D.C. criminal defense lawyers know there are certain types of speech that amendment doesn't cover. Particularly in this day and age, authorities tend to take these quite seriously.

For example:

  1. You can't shout fire in a crowded theater;
  2. You can't tell everyone there is a bomb on an airplane when there isn't;
  3. You can't threaten a shooting rampage at a school or office.

That last one recently got two Maryland men in trouble.

The only fortunate thing for the 19 and 28-year-old suspects is that Maryland law is lacking when it comes to the ability to charge them with anything other than a misdemeanor.

Both were charged with misdemeanor telephone misuse. This is defined as the use of a telephone to either:

  • Make an anonymous call that could be reasonably expected to annoy, torment, abuse, embarrass or harass someone else;
  • Make repeated calls with the same intent;
  • Make a comment or suggestion or request or proposal that is obscene, indecent or lascivious.

Even as a misdemeanor, however, Maryland Code Criminal Law 3-804 is punishable by up to 3 years in prison and a fine of up to $500.

Other places do have stricter laws, so it really depends on where you are charged.

In the first case, the 19-year-old former University of Maryland student had made posts online threatening to shoot up his campus. In one of those posts, he reportedly warned his friends not to go to a certain part of campus at a certain time.

He eventually pleaded guilty to disturbing school operations as well as telephone misuse. His hasn't yet been sentenced, but the judge allowed him at that time of his plea to be released from home detention. He also ordered the defendant to continue to receive care for mental health issues and fixed a 9 p.m. curfew. While awaiting sentencing, he is to begin work on 200 community service hours.

What may factor into the ultimate sentencing is the question of whether this defendant actually had the real intent and the means to carry out his threats. Police who had searched his dorm, car and family home found no weapons at all.

By contrast, the second Maryland defendant to be caught up in a similar case reportedly had possession of 15 weapons - including pistols, semiautomatic rifles and thousands of rounds of ammunition - that he possessed legally under state law. In that case, the defendant reportedly referred to himself as "the Joker" when calling his former employer threatening to shoot up the office. Gun crimes defense in D.C. must always be handled by an experienced criminal defense firm.

Those calls came just after the late July shooting rampage in a movie theater in Colorado, where 12 people died and 58 were hurt.

State and local officials in that case have said they haven't been able to charge him with a felony under state law, though prosecutors are now saying they intend to lobby legislators to tighten the law. It won't affect this case, but officials are saying it's still possible that he could face certain federal charges, though they haven't specified which may apply.

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August 9, 2012

D.C. Gun Laws: Man Orders TV, Gets Assault Rifle

D.C. police are still trying to sort out how it was that a man who ordered a television instead ended up with an assault rifle - similar to the M16s used by military and law enforcement agencies. firearms.jpg

The man isn't facing weapons charges, as D.C. criminal defense attorneys understand he contacted authorities immediately after receiving the package.

Possession of a weapon like that without a license is subject to all types of penalties under D.C. Criminal Code 22-4503, 22-4505(a), 7-2502.01 and 22-4514.

The first of those is unlawful possession of a firearm. This statute prohibits a person from possessing or owning a gun if that individual falls under any of the following categories:

  • Has ever been convicted of a felony;
  • Has ever been convicted of a firearms charge;
  • Is a drug addict;
  • Has ever been convicted of certain misdemeanors, such as domestic violence;
  • Is currently the subject of a civil protection order.

Violation of this statute is an automatic 1-year prison term, though the person can serve up to 10 years. It doesn't appear that the man to whom the gun was delivered falls under any of those categories - he's a musician who simply wanted to buy a television. Other forms of unlawful possession of a gun in D.C. are punishable by between 2 and 10 years behind bars and maximum fines of $15,000.

The second statute deals with carrying a pistol without a license. In D.C., it's illegal to carry a pistol or any deadly or dangerous weapon that is capable of being concealed. If the weapon is found inside a person's residence, it's considered a misdemeanor with a jail sentence of up to 1 year and fines of up to $1,000. There is case law that could be used to challenge this particular use of the law, as it was argued to have violated the Second Amendment in D.C. v. Heller.

If, however, someone is found to have violated this statute by taking the weapon outside, it's charged as a felony, which means you could be facing up to five years in prison.

Then there is D.C. Criminal Code 7-2502.01, which addresses possession of an unregistered firearm. In order to sell or possess any kind of firearm in D.C., you have to have a valid registration certificate. Failure to do so can result in up to a year in prison and a $1,000 fine.

And finally, D.C. Criminal Code 22-4514 deals with possession of a prohibited weapon. These are weapons that are considered to be especially dangerous (an assault rifle would be applicable), and there are a number of others. For a first-time offender without a prior felony conviction, the penalty would be up to 1 year in prison and a $1,000 fine. Any subsequent offenses could result in up to 10 years in prison.

Again, though, this individual isn't facing any charges, as he did report the delivery to police immediately. Authorities are trying to piece together what happened, and they did have to confiscate the weapon, saying it was not only illegal for the man to keep the gun in his home, it was also unlawful for him to try to transport it back to the seller.

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August 8, 2012

MD Police Can Resume DNA Collection of Arrestees

With a final decision pending from the U.S. Supreme Court, police in Maryland are being allowed to resume the collection of DNA from suspects who have been charged - but not yet convicted - of a serious crime. dna1.jpg

Criminal defense lawyers in Washington D.C. are troubled by this development, though it appears likely to become permanent once the Supreme Court has a chance to formally consider it. Attorneys for the man at the center of the case, in Alonzo Jay King Jr. v. State of Maryland, contended that doing so was a violation of his Fourth Amendment rights.

The Maryland Court of Appeals had sided with King's defense on this issue, prompting Maryland to put the brakes on the practice, which began in 2009. Prior to that, police had only been able to collect DNA from convicted criminals. The decision was decried by police and prosecutors throughout the state, who argued it would weaken their ability to solve crimes and would jeopardize the convictions of nearly 35 rapists, robbers and burglars.

The real problem though is that the Maryland appellate decision conflicts with rulings that have been handed down by multiple federal appellate courts, as well as one by the Virginia Supreme Court. This led U.S. Supreme Court Justice John G. Roberts Jr. to intervene, issuing an opinion late last month indicating that there is a "fair prospect" that the justices will overturn the King decision, and allowing police to resume the practice until the court has a chance to hear the case.

Here's what happened in the King case:

King was arrested in April of 2009 on first-and-second-degree assault charges. Pending the conclusion of this case, while he was incarcerated, police took a swab of his DNA. This resulted in a DNA match to a 2003 rape case.

King was subsequently convicted of first-degree rape and was sentenced to life in prison.

His attorneys appealed the conviction, on the basis that the DNA collection violated King's Fourth Amendment right, which guarantees freedom from unreasonable searches and seizures.

The appellate court had ruled that King, having been arrested but not convicted, had a reasonable expectation of privacy that outweighed the state's interest in properly identifying him as the perpetrator of the 2009 assault - namely because there were already eyewitnesses to that crime and he had been identified in a photo line-up. There was no reason, the court said, to collect a DNA sample in order to connect him to that crime.

That put the state practice on hold. Robert's opinion reverses that for now.

That means that anyone arrested for a "violent crime or burglary" in Maryland will be subject to a DNA test at the discretion of prosecutors. This practice is also legal in 25 other states, according to the governor's office.

The bottom line is that if you are arrested - particularly if you know that your DNA may connect you to some earlier crime - it is absolutely critical for you to contact an experienced attorney as soon as possible following your arrest. Don't answer any questions from authorities until you've had a chance to speak with your lawyer.

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