July 28, 2013

D.C. Defense Lawyers Battle Constant Video Surveillance as Evidence

If you're in D.C. or the surrounding areas, your movements are likely being tracked in some capacity through either the district's network of surveillance cameras or through law enforcement's increasing use of license plate cameras.
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Our D.C. criminal defense lawyers know that more and more, detectives are tapping into these resources in the course of investigating various crimes. It's fast becoming a tool that we see more often used against defendants in court in a vast array of cases.

Both the Washington Times and the Washington Post recently reported on this issue, as civil rights advocates argue that the scope of such recordings are overly-broad and may violate privacy laws.

The Times reported that investigators with the Metropolitan Police Department retrieved video from the district's 123 closed-circuit surveillance and red light cameras some 930 times last year. That represents an increase of 15 percent over 2011 and a nearly 30 percent increase from 2010, according to police data.

This trend is expected to continue. From January through May of this year, police have tapped into this resource a total of 530 times. At that rate, they will have made 1,200 requests by the end of the year.

The neighborhood crime cameras first appeared in the district back in 2006. They are now considered standard investigative tools for detectives.

There are a few rules regarding how detectives are allowed to use these feeds. For example, detectives have to make a formal request of a specific camera before they are allowed to obtain a download. However, it doesn't appear they are turned down very often, if ever, in one of these requests.

It's not even so much that police are hoping to find direct video evidence of an actual crime occurring. More likely, they are looking to spot the individual driving a getaway vehicle or to poke holes in a suspect's alibi.

This makes it all the more important for those suspected of involvement in a crime in D.C. to refrain from lying to police. You don't have to give them a statement. In fact, you shouldn't speak to them at all without your attorney present. Better to give them nothing than to try to throw them off with a lie, no matter how small. If police can disprove just one of your statements with the use of these cameras, your entire credibility could be shot. That means your statements and actions will be analyzed with even more heightened scrutiny.

The majority of the images being pulled are from neighborhood cameras. However, a number are also being retrieved from transportation department cameras. The figures cited above don't include footage requested from private surveillance cameras, such as those belonging to apartment complexes, businesses or residents.

Recently, the American Civil Liberties Union sounded the alarm over the fact that D.C.-area law enforcement, as well as those across the country, have amassed databases that tally the movements of millions of Americans over the course of several years through the use of license plate cameras.

Police agencies have these cameras affixed to their cruisers. The technology allows officers to immediately pull up information on an individual or vehicle based on the license plate. Generally, they would be looking for information such as whether the vehicle was reported stolen, alleged to have been involved in a crime or if the individual is driving on a suspended license.

However, even if the officer doesn't actually stop the person, the information recorded by that snapshot is stored in an internal database that police can use later for potential crime-solving.

In Maryland, for example, license plate data was collected some 85 million times last year. Of those, about one in 500 registered a hit, with the vast majority of those being for very minor offenses, such as a failure to comply with the state's emission-control or a lapsed registration. For every 1 million plates recorded, less than 50 were associated with any sort of a serious crime. That amounts to a hit rate of less than 1 percent, which is typical of the program.

Continue reading "D.C. Defense Lawyers Battle Constant Video Surveillance as Evidence" »

July 25, 2013

Review of Homicide Convictions Ordered Amid Scrutiny of Police, Prosecutor Tactics

It's difficult to imagine that one or two individuals could so profoundly impact the fates of so many people, despite operating in a system that places such a high value on its principals of checks and balances.
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But our D.C. criminal defense lawyers understand that officials in New York are concerned that the involvement of a once-acclaimed homicide detective may now jeopardize the convictions of any case with which he was involved. Or rather, this detective may have used improper tactics to secure convictions for individuals who otherwise might have walked.

The district attorney's office, at the direction of its own Conviction Integrity Unit, will scour through some 50 murder convictions secured after being investigated by this now-retired detective, and there is word that the investigation into his alleged misconduct could stretch to former prosecutors as well.

The detective in question handled some of the highest profile crimes in the city in the midst of the crack epidemic of the 1980s and 1990s. Those embroiled in these cases may not have felt they had much recourse, and it wasn't until the last several years, when The New York Times began delving into dozens of cases handled by this individual, that the state attorneys' office began to take notice.

The Times found that there were troubling patterns in cases with which this detective had been involved. In some instances, there was a tendency to rely on the same eyewitness, over and over again. She was a prostitute with a crack addiction and an apparent penchant for witnessing murders.

A lot of these cases rely heavily on a single eyewitness or confession.

In other cases, it appears key evidence was illegally kept from defense lawyers. There are allegations of coerced confessions, improper procedures with regard to suspect identification by witnesses and later recanted testimony that was hushed.

In one of the allegations, the detective allowed violent criminals to be released from jail for a time in order to visit with prostitutes and smoke crack cocaine, in exchange for their cooperation in testifying against certain defendants.

All of it was blown wide open when the conviction of one of those individuals for the murder of a rabbi began to unravel. The district attorney's office, in a very rare move, recommended his release, saying there was evidence of misconduct, and agreed not to retry him.

However, it didn't end there. Lead prosecutors are being called in for depositions in a $150 million civil lawsuit brought by the exonerated man. The tactics reportedly practiced by both the detective and the prosecutor began to call into question dozens of other cases.

The results of the DA's internal inquiry will be interesting, as the district attorney himself was one of the lead prosecutors in these cases. One would think an outside review would be more appropriate, but that hasn't been suggested.

Based on what we know so far, it appears more than one of these individuals was railroaded into prison.

Of course, if it turns out the chips were stacked that high against the defendant, it would be little wonder that defense attorneys weren't able to overcome the "evidence" in court.

The only thing you can really know for sure going into these cases is that the one person you can trust to have your interests at the forefront is your defense attorney. You want to choose someone who is not only intelligent and knowledgeable regarding the law, but who is also experienced and familiar with the local system.

Continue reading "Review of Homicide Convictions Ordered Amid Scrutiny of Police, Prosecutor Tactics" »

July 20, 2013

Vast Racial Disparities in D.C. Drug Arrests, Two Studies Say

Two different studies have pointed to the fact that not only are drug arrests in D.C. high, but there is strong evidence to suggest that racial biases play a significant role in who is arrested.
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Our D.C. criminal defense lawyers were troubled by these study results, though we aren't especially surprised. It's long been documented that blacks comprise the majority of the prison population and the NAACP reports that one out of every three black males today can expect to spend at least some time in prison during his life.

The majority of those who are serving time are there for some drug-related offense.

The first study was conducted by the Washington Lawyers' Committee for Civil Rights and Urban Affairs. Researchers analyzed D.C. arrest statistics between 2009 and 2011. What they found was that 8 out of every 10 adults arrested in the District are black. Nine out of 10 people arrested on simple drug possession charges are black, as are eight out of 10 who are charged with disorderly conduct.

Compare this to the city's racial make-up, which is comprised of 47 percent black residents and 43 percent white.

Put another way, in 2010, the District arrested 30 percent of its black adult male population, compared to 2 percent of its white residents.

Police have argued that such studies are unfair because they fail to account for the fact that black areas of the District tend to have higher crime rates. For example, the area in Anacostia River, which accounted for almost half of the District's 88 murders in 2012, is a predominately black neighborhood. It's the same area where roughly 40 percent of the city's violent crime took place last year.

However, that doesn't explain the hugely disproportionate figures that we see with regard to drug-related arrests.

The second study, conducted by the American Civil Liberties Union, found that the District saw a 60 percent rise in arrests for marijuana possession between 2001 and 2010. The vast majority of those arrested (91 percent) were black.

In fact, the rate of black arrests for marijuana possession in D.C. was among the highest in the nation, ranking No. 3 with 1,489 arrests per 100,000 population. Compare this to the white arrest rate for marijuana possession in D.C., which was 185 per 100,000.

Despite all of this, police say they haven't made marijuana arrests a high priority. Rather, they contend, they are simply responding to requests from within communities by those who want order restored in neighborhoods considered long-neglected.

We certainly understand that people want to feel safe in their neighborhoods. However, effectively criminalizing a third of the adult black male population by hounding them with arrests for petty drug crimes hardly seems like the solution that black leaders have in mind.

On the bright side, the D.C. Council is set to consider decriminalization of small amounts of marijuana within the District. A bill that would accomplish this was introduced by Council member Tommy Wells, with nine of his 12 colleagues signing on as co-sponsors.

While the District has allowed for the legalization of marijuana for medicinal purposes, possession for any sort of recreational purpose is still considered a crime. This measure would make possession of less than an ounce of marijuana a civil offense, which would mean offenders wouldn't receive any jail time and instead would receive, at most, a $100 fine.

Continue reading "Vast Racial Disparities in D.C. Drug Arrests, Two Studies Say" »

July 15, 2013

Digital Forensics a Growing Field in D.C. Criminal Cases

A Virginia man was recently sentenced to eight years in prison after pleading guilty to third-degree sexual assault stemming from a gang rape incident that was recorded on the cell phone of one of the four alleged assailants.
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Our D.C. criminal defense attorneys are seeing a rising number of cases - sex crimes and otherwise - in which digital forensics such as this are becoming powerful evidence for the prosecution. In fact, absent the grainy cell phone video in this case, it would have been a difficult case to prosecute.

In the video, a reportedly intoxicated female is shown with her eyes drooping and speech slurred. She protests the sexual acts being inflicted upon her. In the beginning, she cries out sharply for help, but is quickly quieted by one of the men. She repeatedly tells them "no" and "that's not cool" and begs them to take their hands off her. The man who pleaded guilty can be seen flashing a gang sign as he holds the girl's face up for the camera while the two other men sexually assault her.

Prosecutors truly couldn't have asked for a better piece of evidence. And they might not have ever found it, had it not been for a report of a different sexual assault that was also apparently recorded on one of the cell phone of another of the accused.

Police never did find that video. However, in the course of searching for it, they found this one. Based on that, they were essentially able to build their entire case.

This is not the first time we have heard of such an incident, particularly in a sexual assault. You probably recall the recent gang rape case out of Ohio, in which a number of high school football players captured video of a sexual assault of a fellow student. That video was later used to convict two of the individuals depicted in the footage.

And just a few days ago, a 28-year-old soldier based in Tennessee was convicted in the rape of a six-year-old girl, which he had video-taped. That footage resulted in the additional charge of production of child pornography, for which he received 27.5 years in prison. The rape charge garnered another 50 years behind bars, which he will serve concurrently with the other sentence.

That case was revealed when the Department of Homeland Security received information that linked the soldier's e-mail address linking him to child pornography. He was deployed in Iraq as a medic when a search warrant was served at his base living quarters, where Army investigators discovered the video on his laptop.

It's expected that the field of digital forensics is only going to continue to expand. Last year, the Bureau of Labor Statistics estimated that computer forensic jobs would grow an estimated 13 percent over the next several years, with a starting salary at about $50,000. The National Security Agency - which has been in the news recently after a leak revealed extensive domestic spying - is in the process of hiring 3,000 specialists for the purposes of combating cyber attacks against the U.S. government. The U.S. Department of Homeland Security is in the process hiring another 1,000 cybersecurity specialists.

This increasing demand extends to corporations seeking to shield themselves against hacking and, of course, law enforcement agencies. It used to be solely about computers, but the field has branched out to cover investigation of all digital devices, including your cell phone.

It is not impossible to defend against cases where digital forensics are used, but it is tougher. Keep in mind that whatever you transfer onto a digital format - be it a cell phone video or text message or e-mail or Facebook note - can all be accessed, even if you later delete it.

Continue reading "Digital Forensics a Growing Field in D.C. Criminal Cases" »

July 14, 2013

U.S. Violent Crime Spikes First Time Since 2006

A 40-year-old man was reportedly attacked recently in Glen Burnie, beaten with a baseball bat and robbed, according to local police. A 35-year-old man has been arrested on charges of first- and second-degree attempted murder, first- and second-degree assault, disorderly conduct, robbery, armed robbery, reckless endangerment and two counts of theft.
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Whether the alleged assailant knew it or not, our D.C. criminal defense lawyers recognize this as part of a reported trend of rising violent crimes across the country, as recently noted by the Federal Bureau of Investigation, which compiles crime statistics.

Preliminary results of the Annual Uniform Crime Report reveal that there was a 1.2 percent uptick in violent crimes last year as compared to the year before, while there was a 0.8 percent decline in the number of property crimes during that same time frame.

The crime report is based on statistics compiled from some 13,800 law enforcement agencies that sent in between six to 12 months of comparable data for both years.

The biggest increases were seen with violent crimes, particularly in cities with populations between 500,000 and 999,9999. (D.C. has a population of 632,300, according to the latest Census figures.)

Murder and non-negligent manslaughter increased overall by 1.5 percent. Aggravated assaults increased by 1.7 percent and robbery by 0.6 percent. The only type of violent crime to see a decrease was forcible rape, which only dropped by 0.3 percent.

In larger cities, like D.C., the violent crime rate spiked by nearly 4 percent. In cities with more than 1 million people, the crime rate climbed by about 3.2 percent.

Still, we are seeing a slight drop in the number of property crimes. Nationwide, burglaries were down more than 3.6 percent, with overall property crimes down about 2 percent in larger metropolitan cities.

However, motor vehicle thefts were on the rise by about 2 percent in cities of sizes comparable to D.C.

All of this follows several years of steep crime declines nationwide. In 2011, the FBI reported the U.S. saw the violent crime rate fall by 3.8 percent after having dipped 6 percent in 2010 and 5.5 percent in 2009. The last year we saw any kind of increase was back in 2006, when the rate inched up by about 1.5 percent. Prior to that, we saw violent crimes drop more than 17.5 percent between 1996 and 2005.

Statisticians are cautioning that we should refrain from panicking or seeking a singular reason for this uptick until we at least have another year's worth of data.

Our criminal defense lawyers know that often with these type of reports, law enforcement agencies will hold them up as evidence that we need to provide more funding, resources and civil rights leeway to police agencies. Already, one agency head quoted by the New York Times has said that "We're dealing with depleted police resources." However, that's been the case now for a number of years when we were still seeing marked decreases in the crime rate.

This is not to say that law enforcement doesn't have a vested interest in keeping these communities safe. However, overreactions will serve no one. We continue to remain committed to serving your interests and protecting your rights.

Continue reading "U.S. Violent Crime Spikes First Time Since 2006" »

July 10, 2013

D.C. Hate Crimes Definition Up for Debate After Recent Attacks

A spate of attacks in D.C. against lesbian, gay, bisexual and transgender individuals has sparked debate over what constitutes a hate crime and whether police should be identifying alleged victims by their sexual orientation in the first place.
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Our D.C. criminal defense lawyers know that it is not enough that a victim of a crime belongs to a group protected by hate crimes statutes. The act must be motivated by that status.

The recent attacks in question include a homicide, a sexual assault, a stabbing and a shooting. However, while police have identified three of the six victims as being transgender, only one of those cases is being investigated as a possible hate crimes. Even LGBT advocates concede that a number of recent attacks weren't likely motivated by the victim's sexual orientation or gender identity. Still, they contend that police should identify victims as such because of their general vulnerability to attack due to a perception of weakness.

However, even some of the victims' families dispute those kinds of labels. In the case of the recent homicide, the aunt of the victim, expressed anger at the fact that LGBT advocates took it upon themselves to distribute a funeral notice that a shooting had "claimed the life of an LGBT victim." However, the aunt says her niece's death had nothing to do with her sexual identity. Robbery was reportedly the motive.

In the past, D.C. police have been accused of indifference or insensitivity to crimes against the LGBT community. However, now there is a lesbian/gay liaison unit to police that investigates all cases where there is any shred of evidence that the case may involve a suspected motive of bias. That means almost every case involving an LGBT victim is going to get special attention.

But again, not every crime against someone who is LGBT is a hate crime. In many cases, the suspect may have no idea whatsoever that the victim identifies this way. And yet, per hate crime statutes, the defendant will face harsher penalties just by virtue of the victim's sexual identity. This is not justice.

We are likely to see more of these kinds of cases, though, as society continues on a path toward greater acceptance of the LGBT community. The recent U.S. Supreme Court decision to strike down the federal Defense of Marriage Act is just the latest reflection of that. That individuals would feel free to express their sexual and gender identity to the world is a positive development. However, that's going to inevitably mean that more victims will be identified as LGBT - not because there are more hate crimes but because more people are open to their communities about who they are.

In the case of the recent stabbing, police have said that the attack was spurred by an argument over money for sex. However, LGBT advocates are arguing it was a hate crime because the suspect's friends had laughed at him for having sexual contact with a transgender person.

D.C. police said that the number of bias and hate crimes has actually dropped by about 18 percent so far this year, compared with this time last year. However, it may be that we are finally seeing some reluctance on the part of authorities to label every crime against an LGBT person a hate crime.

However, D.C. police made a troubling statement recently with regard to the one case that is being currently investigated as a hate crime. That statement was that hate was a "borderline motive." In that case, a transgender woman was robbed at gunpoint, and one of the alleged gunman pulled off the woman's wig and then shot her once in the behind as she ran away.

But even making a statement referencing a person's gender or sexuality during a crime does not necessarily mean that was the motive, and we believe law enforcement needs to be very careful about this, particularly given the enhanced penalties meted out for those convicted of hate crimes.

Continue reading "D.C. Hate Crimes Definition Up for Debate After Recent Attacks" »

July 8, 2013

Spike in D.C.-Area Sex Crimes Attributed to Old Cases Newly Reported

A 77-year-old Prince William man was recently arrested and hauled off to jail on charges of rape, forcible sodomy, aggravated sexual battery and indecent liberties by a custodian.
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His crimes reportedly took place some 30 years ago, between 1982 and 1987, while he worked as a teacher at the Evangel Christian School in Dale City.

Our D.C. sex crimes defense lawyers understand that the alleged victim was reportedly 12 years old at the time of the alleged acts. However, these incidents were only reported to authorities in recent weeks.

It's unclear what evidence, aside from this woman's word, police used to make an arrest on a alleged crime that took place decades ago. Apparently, this kind of surprise disclosure is becoming more and more common, complicating matters for a criminal justice system that is geared toward timely resolutions.

The most recent crime statistics out of Prince William indicated a substantial rise in violent crimes, namely sexual assaults. Serious crimes, which included rape, aggravated assault and robbery, rose by nearly 9 percent last year. For statistical purposes, crimes are counted in the year they are reported, not the year they allegedly happened. As it turns out, more than 4 percent of that reported increase was attributable to sexual assaults like this one that happened years ago, but were only just reported last year.

Police officials say it has to do with the fact that victims feel more comfortable coming forward today than in years past. While we certainly don't want to discount the trauma that sexual assault victims endure, the reality is that it may also be much tougher for a defendant to mount a strong defense years after the fact.

This is why we have a statute of limitations on so many crimes. We know that evidence erodes, as do the memories of any potential witnesses. People die or move away. Paperwork is lost. Conversations are forgotten. A lot happens in 30 years.

People sometimes joke about poor memories so bad they can hardly recall what they ate for breakfast. And yet, the court expects them to come to the witness stand, where someone's life and freedom is on the line, and recall with detailed accuracy an incident or occurrence that happened decades ago.

In D.C., the statute of limitations for first- or second-degree sexual abuse on a child is 15 years, though the clock does not start ticking on that case until the individual reaches the age of 21.

In cases where the victim was a patient or ward (or student) of the abuser, the clock on that statute of limitations won't begin until the individual is no longer in a relationship with the person who allegedly was the abuser.

Those who are victims of child pornography and incest have 10 years, starting from the beginning of their 21st birthday, during which they may bring charges.

In this case, the victim alleges the abuse began when she was 12 in the spring of 1982. She said the assaults continued over the course of five years.

In recently interviewing the suspect, he reportedly admitted to performing oral sex on the alleged victim in the winter of 1985.

The girl's parents had reported these allegations of abuse against the teacher back sometime in the 1990s. However, the allegations were never in turn reported to police. The school conducted its own investigation into the matter and fired the teacher, but it failed to inform law enforcement officials. This action would be considered a misdemeanor, however there is a one-year statute of limitations on that action.

Continue reading "Spike in D.C.-Area Sex Crimes Attributed to Old Cases Newly Reported" »

July 6, 2013

State High Court: Sniff Test Fails to Impress

Earlier this year, the U.S. Supreme Court ruled that law enforcement's use of a drug-sniffing dog near a residence constitutes a search that could violate the Fourth Amendment if done without first obtaining a warrant.
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Now, the California Supreme Court has ruled that an officer's detection of drugs via his own sense of smell might be enough to justify seizure of private property, such as a mailed package, but it is not enough to justify the search, without first obtaining a warrant.

Our D.C. drug defense lawyers know that while this ruling only directly affects those in California, it sets a strong precedence and pushes back against a large number of cases in which officers are searching first and then asking questions about the validity of those searches later.

Another prime example of this was the Missouri DUI case in which an officer had blood forcibly drawn against a DUI suspect's will without a warrant, saying that while he could have obtained one, he didn't think it was necessary. The U.S. Supreme Court, finding that such practices are among the most invasive and that a blood draw unquestionably amounts to a search, and therefore requires a warrant.

A warrant is a legal document issued by either a judge or magistrate that authorizes law enforcement to search a person, location or vehicle for evidence of a crime and to then confiscate that evidence, if found. There are few exceptions to this - for good reason - but primarily the purpose is to ensure that a person's Fourth Amendment rights are not violated by offering some transparency in the process. The absence of a warrant prior to a non-consented search should always be questioned by your defense lawyer.

The California case strikes at the heart of this, striking down a prosecutor's argument that the warrantless search of a private package was allowed under a "plain smell" test exception, an attempt to stretch the "plain sight" test exception.

Generally, police are allowed to seize evidence they notice in plain site. So if you are pulled over in a traffic stop and the officer notices a bag of marijuana on the passenger seat, he is allowed to seize that. However, the smell of marijuana would not be enough to conduct a warrantless search.

In this case, a FedEx employee contacted police when detecting a strong odor of marijuana in a package that was destined for out-of-state. An officer arrived on scene and he too noted the strong odor of marijuana coming from the package. He seized the package and took it back to headquarters, where his supervisor also confirmed the smell and gave the Ok for narcotics detectives to conduct a search. The detectives located marijuana inside and the defendant was ultimately arrested and convicted.

However, he appealed on the grounds that police never had any right to search the package without a warrant.

The case ultimately made it all the way to the state supreme court, which ultimately agreed with the defense. Without evidence obtained in that search, prosecutors had no case, and the conviction was tossed.

Continue reading "State High Court: Sniff Test Fails to Impress" »

July 4, 2013

Bite Mark Analysis Errors Reveal Fatal Flaws in Forensic Science

Forensic analysis of bite marks in criminal cases has been made famous in a number of high-profile trials, such as with serial killer Ted Bundy.
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Bundy may well have been guilty, but at least a dozen others convicted based on this same form of flawed evidence almost certainly were not guilty. And yet, they spent decades behind bars, with prosecutors having convinced a jury that "scientific evidence" is above reproach or critical analysis.

Our D.C. criminal defense lawyers know that even though bite mark analysis has largely fallen out of favor in court rooms, for the very fact that it has proven so unreliable, this whole "it's right because science says so" argument has only continued to flourish. DNA evidence is perhaps the most well-known example.

While DNA evidence tends to be key in serious felony cases such as homicide or sexual assault, it is also now being more widely-used in lower-level cases, such as for burglary or theft.

Interestingly, bite mark analysis got its start in a robbery case. Back in 1954, a grocery store was robbed in a small town in Texas. The alleged robber reportedly took a bite out of a hunk of cheese before fleeing the scene. A dentist later testified that the bite mark left in that discarded cheese matched the dental imprint of the man suspected of robbing the store. He was convicted.

In the wake of that, the "science" of forensic bite mark analysis proliferated among a small, mostly ungoverned group of dentists. These individuals would stand up in a court of law and testify as to the unequivocal match of someone's dental imprint left at the scene - despite the fact that there isn't and has never been any definitive scientific proof that teeth are able to be definitively matched to a bite in human skin.

Perhaps that why we've seen, since 2000, at least two dozen men who were charged and convicted of rape or murder on the basis of victim flesh bite marks, who have since been exonerated. Most of those spent more than a decade behind bars before they were ultimately freed by DNA evidence.

In addition to the fact that the scientific methods are questionable, at best, the greater problem is that there is a bias among forensic dentists, many of whom are paid several thousands dollars to offer their expert testimony for the prosecution.

This kind of inherent bias is also frequently cited among lab technicians who handle DNA evidence deemed critical to so many cases. Lab workers are seen as being on a "team" with prosecutors, despite the fact that they are actually supposed to be unbiased scientists. A criminal case out of Boston right now involves a lab technician who routinely "fixed" cases in favor of prosecutors, throwing thousands of convictions into question.

This is not to mention the fact that methods of storage and handling of DNA have been known to be lacking, giving rise to concerns of cross-contamination or damage to the samples.

The bottom line is that DNA evidence, just like bite mark analysis before it, has the potential to be flawed. It is subject to bias more than jurors and the public are led to believe. Given its pervasiveness in so many criminal trials, it's important that defendants recognize the need for a strong defense to raise questions and challenge its validity.

Continue reading "Bite Mark Analysis Errors Reveal Fatal Flaws in Forensic Science " »

June 28, 2013

Criminal Witness Testimony Always Subject to Critical Errors

Eyewitness testimony in criminal cases is notoriously unreliable.

So it's even more troubling that a man was recently convicted of murder largely on the basis of nothing more than eye movements.
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Our D.C. criminal defense lawyers understand that the key witness in an Ohio murder case was the deceased. The "testimony," if you could call it that, was obtained on the victim's death bed, a few days after he had suffered a gunshot wound to the brain. He survived only a few weeks after the incident.

In the interim, prosecutors said although he could not speak, he was able to communicate with law enforcement officers by blinking.

Jurors watched a video in which the alleged victim was asked to blink three times to answer "yes" to a question of whether the man who shot him was depicted in the photograph placed in front of him. That photograph showed the defendant. The alleged victim blinked three times.

There are so many problems with this kind of witness, it's difficult to know where to start.

First, let's start with problems inherent in eyewitness testimonies in general. Flawed eyewitness testimony is the No. 1 contributing factor to wrongful convictions later overturned by DNA analysis, according to a book entitled "Convicting the Innocent," by Virginia law professor Brandon L. Garrett. Errors with photo line-ups, pressures by police and problematic law enforcement procedure can all contribute to false eyewitness testimony. So too can intoxication on the night in question, factors such as whether it was dark and the trauma a person has endured.

In this case, it's inarguable that the trauma suffered by the victim/witness included brain damage. Although his doctor testified that he could in fact communicate, it's unclear how accurate or reliable that communication would have been, considering the damage his brain reportedly suffered - the same damage that ultimately resulted in death.

The defense in this case raised another argument in trying to suppress the video from being entered into evidence, saying that the victim's blinks were inconsistent from day-to-day. What's more, there are substantial questions as to whether the powerful narcotics which the victim was prescribed at the time of the interview may have affected his responses. Certainly in any other circumstance, we would question the reliability of testimony from someone who was intoxicated. Although these medications were prescribed and undoubtedly necessary given the man's condition, it seems quite plausible that they could have impacted his judgment.

It's worth noting that the defendant in this case turned down a plea deal that would have resulted in only five years behind bars. He has maintained his innocence. Now, he is facing a sentence of 37 years to life.

It's not unheard of that a person's dying identification would be used as evidence in a murder trial. Typically, however, that comes in the form of actual words spoken to another person (one of the few times courts will allow hearsay). Under the best circumstances, an individual's words are recorded for the jury, who can then discern the exact language, tone and phrasing.

It's far more rare that testimony relying solely on gestures would be introduced by prosecutors as a key piece of evidence. But as this case shows, despite its unreliability, it can still be tough evidence to overcome.

Continue reading "Criminal Witness Testimony Always Subject to Critical Errors" »

June 25, 2013

D.C. Photo Databases' Questionable Use in Criminal Searches

State and local officials have amassed a collection of roughly 120 million faces of innocent Ameircans, using the justification that such images would allow authorities to prevent driver's license fraud.
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However, as a recent Washington Post article reveals, these images are frequently being used in criminal facial recognition screens.

Our Washington D.C. criminal defense lawyers are very concerned about the potential for Fourth Amendment violations, as well as the inevitable likelihood that, given the current unreliability of facial recognition technology, someone is going to end up falsely accused.

According to the Post article, these databases operate with very few legal safeguards, so long as the searches carried out for "law enforcement purposes."

The facial recognition technology has been around for some time, but it's been widely used recently in the wars in Iraq and Afghanistan to help soldiers pinpoint insurgents.

Here at home, the technology has reportedly been used to help police locate individuals suspected of murder, bank robberies and drug deals. Photographs of these individuals are captured either on video surveillance cameras or on social media sites. Those images are then cross-referenced with driver's license photographs.

In some departments, officers have technology that allows them to enter a driver's license photograph of a suspect being pulled over and cross-reference it with suspect photographs using facial recognition technology. The concern is that as these databases expand and become increasingly connected, we are creating what in essence equals a national identification system.

These recognition technologies are not yet as reliable as fingerprint data in terms of identifying people. The new features allow police agencies to map out each person's variations in skin textures, vein patterns and irises. This information is then used to create a digital template for quick, computerized comparison of other faces within the database.

The information has successfully been used to weed out driver's license fraud, as the system picks up whether a person may have more than one driver's license in the country.

However, this kind of detailed information is being collected for the purposes of unrelated criminal investigations - despite the fact that these people have never been convicted or even suspected of a crime. The only thing they've done is obtain a driver's license.

Likewise, a recent U.S. Supreme Court decision, Maryland v. King, allows law enforcement agencies to collect DNA information from criminal suspects to input into state and national databases - even though they have never been convicted of a crime.

Use of driver's license photographs allows police to tap into even more potential suspects. The use of this technology varies by region. In D.C., for example, facial recognition systems are available, but generally there is no allowance for law enforcement to conduct searches. However, such searches are available in a number of neighboring states and there is allowance for police to search or request searches.

One facial recognition program coordinator in Florida called it a tool to benefit law enforcement and not to violate citizen privacy rights. However, no one ever said the two were mutually exclusive.

What's more, there is much to suggest that as of right now, it isn't all that accurate - sometimes dramatically so. In one case, a probe image of a white, middle-aged man returns possible matches with 20-something, African American women with eyes and lips of similar shape. Law enforcement officials can limit the search filters for sex, race and other factors. But looking similar to someone isn't a crime, and we shouldn't be treating it like one.

Continue reading "D.C. Photo Databases' Questionable Use in Criminal Searches" »

June 16, 2013

Detective Arrested for Fatal Shooting Alleges Racial Slur Prompted Gunfire

A detective charged with second-degree murder and manslaughter for the fatal shooting of a fellow motorist has claimed through his attorney that the alleged victim had repeatedly shouted racial slurs against the officer and threatened to kill his family.
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Our D.C. criminal defense lawyers understand that the defendant in the case is black, while the alleged victim was white.

Defense attorneys say the victim was yelling at the family in their van, behaving in an enraged manner and repeatedly screaming racial epithets at the officer and his family.

The element of racial tension was absent from the investigative report penned by police on the incident. In fact, the majority of the police report relies heavily on statements from the passenger who was riding with the alleged victim. Of course, it should be understood that this individual would have a reason to provide a bias account of what occurred.

The detective, who primarily investigates insurance fraud but had previously been a road patrol officer in Newark, was driving with his wife seated next to him and his three children, ages 3 to 11 buckled in behind him. He was driving in the left turn lane when the altercation began. The defense lawyer said that the detective had been unaware there was a problem until the alleged victim pulled up alongside the van and began screaming at the family, using a series of racial slurs. Additionally, the man was threatening violence upon the entire family. As the attorney put it, "They were on notice."

The detective maintains the alleged victim drove aggressively, doing whatever was needed to stay alongside the family van. When the detective decided to pull over, he wasn't trying to escalate the situation. He thought it was over, and he wanted to stop to collect his calm - and for another reason that his lawyer has yet to disclose. But the other driver stopped some 150 feet in front of him.

At some point, both men got out of their cars. The detective identified himself as a police officer as the alleged victim marched toward him. He repeatedly ordered the man to stop. He didn't. It was only when the alleged victim was within six feet of the detective did he pull his gun and fire.

Police say the victim was shot twice - once in the leg and the second one, to an undisclosed location on the man's body, which proved fatal. However, the defense lawyer maintains only one shot was fired.

A murder charge is one of the most serious a person can face in our legal system. There are many possible approaches a legal defense team can take, and in this case, it appears to be a textbook case of self-defense.

Self-defense is not an excuse to murder, but rather a justification. It is reasonable force displayed in the face of an unjust threat. It is asserting that the actions taken were not criminal, but rather necessary to protect one's own self or others.

Murder is the intention to kill or inflict great bodily injury or action taken that reflects reckless indifference to human life. A person convicted of murder can face up to life in prison.

It is critical in these cases for defendants to hire a skilled criminal defense lawyer.

Continue reading "Detective Arrested for Fatal Shooting Alleges Racial Slur Prompted Gunfire" »

June 14, 2013

D.C. Child Abuse Claim Proves False, Couple Continues to Pay

The young mother of twin baby girls was changing the diaper of one when she heard a thud from across the room. She turned to see that her other 8-month-old daughter, who had been playing nearby, had fallen and bumped her head.
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The child didn't have any bumps and bruises, but she grew concerned when the girl began to act fussy and started throwing up. She eventually wound up in the hospital, but recovered quickly.

Still, our D.C. criminal defense lawyers understand the two girls were promptly removed from their parents' home and shoved into foster care. The police launched an investigation and the parents were placed on the city's suspected child-abusers registry.

Police never found any evidence of abuse and no arrests were ever made. Still, the case is not closed for the couple. That was nearly six years ago, and the fight continues, most recently with the couple having filed a $1 million lawsuit against the Child and Family Services Agency for the way it has handled the case.

The primary reason CFSA got involved was because the girl's injuries from that fall included a retinal hemorrhage. That is consistent with an injury that one might see from shaken baby syndrome.

But shaken baby syndrome is a condition that has been broadly applied in criminal investigations launched when children have become injured or, worse, have died. However, many of the symptoms that accompany shaken baby syndrome are also consistent with other childhood injuries and conditions - for example, falling and bumping one's head. This is something children do all the time.

Certainly, there is a need to protect children from parents or caregivers who are abusive or neglectful. However, child protection agencies, law enforcement and prosecutors have become overzealous with their application of the law. In some cases, convictions were secured and parents were sent to prison - only to have it later revealed that the child was injured or died from other causes.

The couple in this case say that while they understand the need for an initial investigation, child service workers and at, first, law enforcement seemed to ignore the fact that there was no evidence whatsoever that they had harmed their child or to show that they were a threat to their other daughter.

D.C. has a very broad statute with regard to what constitutes as child abuse or neglect. The standard of proof in these cases is a preponderance of the evidence. That is, your child can be removed from your home without authorities having to prove beyond a reasonable doubt that you harmed him or her.

D.C. Code 16-2301 holds that abuse should be defined as the infliction of mental or physical injury on a child or the sexual exploitation or abuse of a child. A parent may discipline his or her child, but that discipline may not include:


  • Biting, cutting or burning a child;

  • Striking a child with a closed fist;

  • Inflicting injury to the child by kicking, throwing or shaking the child;

  • Any non-accidental injury to a child younger than 18 months;

  • Taking any action that could interfere with a child's breathing;

  • Threatening or using a dangerous weapon on a child.


Cases involving infants are particularly difficult because they are generally unable to communicate how their injuries occurred. That means you will need a strong legal advocate on your side.

Continue reading "D.C. Child Abuse Claim Proves False, Couple Continues to Pay" »

June 6, 2013

D.C. Statutory Rape Convictions Have Severe Penalties

The issue of statutory rape is one that has been cropping up throughout the country in a number of headline-grabbing scenarios, prompting some advocates to urge a a closer look at these laws and whether they may be too harsh.

In D.C., it's illegal for anyone who is in adult (over the age of 18) to have sex with anyone who is 14 or younger.
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If you are arrested for statutory rape in D.C., you may be facing as many as 30 years behind bars.

This is the case even if the relationship was consensual and you were 17 when the relationship started, but have since turned 18 and your girlfriend or boyfriend has not yet turned 15.

That's exactly what is happening right now in Florida, in the case of an 18-year-old girl who is facing two felony counts of lewd lascivious battery of a child. The two teens knew each other from school and were even on the same basketball team. But the minute the older teen turned 18, any sexual contact between the two was considered illegal.

The primary reason this case has gained so much attention is because the two teens in this case were both females, prompting LGBT advocates to decry the fact that the parents only pressed charges because they were upset their daughter had engaged in lesbian activity.

The older girl was kicked off the team, expelled from school and faces up to 15 years in prison. She rejected a plea deal that would have forced her plead guilty to a lesser offense and serve two years of house arrest.

Meanwhile in Mississippi, lawmakers have passed a measure that will require both doctors and midwives to save the umbilical cord blood from babies born to mothers who are younger than 16. From there, officials will analyze the samples and attempt to identify the father of the baby through the state's DNA database.

(You may also be interested to know that the U.S. Supreme Court recently broadened the rights of law enforcement officers to collect DNA samples from those arrested for serious crimes, meaning we'll likely be seeing more of these statutory rape cases as well.)

The goal, state lawmakers say, is to deter men over the age of 21 from having sex with girls 16 and younger.

But that leaves out the argument that many of these teens consented to these acts. They do not consider themselves victims and they never reported a crime, and in many cases, neither have their parents.

Mississippi's statutory rape law is a bit stricter than D.C.'s, allowing that any sexual contact occurring between those with an age difference of more than three years and a child under the age of 16 is a criminally prosecutable offense.

The Mississippi law is also rife with other problems. For example, there is the issue of jurisdiction, particularly if the "victim" isn't cooperating. Prosecutors would have to determine where the conception occurred before charges will be filed.

Continue reading "D.C. Statutory Rape Convictions Have Severe Penalties" »

June 4, 2013

Arrested in D.C.? Police Can Take Your DNA, Court Says

Four years ago, a man was innocuously arrested on assault charges.

Per Maryland law, because the charge was a felony, the suspect was forced to submit a DNA sample through a cheek swab. That resulted in a hit on a cold case rape from six years earlier. He was convicted, but later appealed on the basis that police had no right to take his DNA in the first place.
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However, the U.S. Supreme Court has now ruled otherwise. The split, 5-4 ruling handed down in Maryland v. King means that if you are arrested in D.C. for either a felony or other serious crime, the police are permitted to collect your DNA involuntarily.

Never mind that you haven't been convicted of a crime. Never mind that there's a chance you're actually innocent.

There were already 28 states that had approved of this practice in some form or another, though the latitude granted to police varied slightly. Some states have allowed it only in cases where someone was arrested for certain types of felonies. Others allowed it for all felony arrests and still others allowed it for all felony arrests plus certain types of misdemeanors.

However, D.C. hadn't passed any such legislation, so this will be new for suspects. The precedent set by the court allows for all suspects in "serious" crimes, which we have no doubt will be broadly interpreted by law enforcement.

In an uncharacteristic break from his conservative colleagues, Justice Antonin Scalia, in voicing dissent, stated that while this practice may serve to ultimately solve more crimes, the same could be accomplished by requiring airplane passengers or driver's license recipients to submit to such a test. Either way, Fourth Amendment rights are out the window.

In fact, Maryland's Attorney General, Doug Gansler, conceded that there was nothing currently in the law that would bar police officials from collecting DNA from people arrested for non-violent, misdemeanor offenses.

If the ultimate goal is evidence collection, what the court has essentially done is sanction it without a warrant and without even probable cause.

The majority ruled that the goal of DNA testing during the police booking process is to obtain affirmative identification of the suspect, similar to how we collect fingerprints and snap a mugshot.

That may be useful in a small number of instances, but the reality is, it's used for crime-solving. As such, the potential for Fourth Amendment violations are rife.

The American Civil Liberties Union called the decision a "gaping new exception" to the Fourth Amendment. The reasoning is this: It's been determined that police can't search for evidence of a crime without individualized suspicion. DNA collection is a kind of search - something upon which all nine justices agreed. Contrary to the majority's opinion, the goal of DNA collection is solving unsolved cases.

In using the DNA this way, police are bypassing those constitutional protections. It provides police with the option of using an arrest as a fishing expedition. Although this decision will make it tougher for defendants to suppress evidence obtained this way, our D.C. criminal defense lawyers doubt this is the last legal protest we'll hear on this issue.

Continue reading "Arrested in D.C.? Police Can Take Your DNA, Court Says " »