August 16, 2013

Drug Investigations Under Fire in National DEA Probe

D.C. criminal defense attorneys know that when it comes to the evidence used against you in court, the way it is collected is sometimes even more important than the substance itself.
There are very specific laws regarding when an officer is justified with reasonable suspicion and probable cause and when a warrant has to be obtained. Full disclosure by law enforcement and prosecutors of how the evidence came to light and was collected is mandated by the courts, and it's also potentially a critical link for your defense team.

All of this is why the latest revelation regarding a super-secret division of the U.S. Drug Enforcement Administration has come under intense scrutiny in recent weeks. It came to light following outrage over the National Security Agency's amassing of phone records of millions of Americans, purportedly under the guise of national security protection. Such information was collected without probable cause or warrants.

The DEA operation was a bit different. Reuters reports that the Special Operations Division, which has a goal of aiding the DEA and other law enforcement agencies in their investigations of drug dealers and money launderers, has been forwarding tips gleaned from NSA intercepts, wiretaps by foreign governments, federal databases and domestic wiretaps.

Here is the first problem with this: The NSA collects information for purposes of protecting national security. However, the tips that are taken from the SOD and reportedly forwarded to federal and local law enforcement agencies have nothing to do with national security. They are instead used to prosecute those suspected of domestic crimes - primarily drug offenses, and not all of them even felonies.

Here is the second problem: Documents obtained by Reuters reveals that the DEA has been instructing lower-level law enforcement agencies on how to "recreate" an investigative trail, so that the SOD's involvement would be concealed. This is a major issue because if defense lawyers don't know how evidence was obtained, they can't objectively review it for evidence that might be exculpatory, or subject to suppression. Such evidence might reveal things like biases or entrapment. If a defense lawyer can prove these elements, it could result in the case being dismissed altogether.

Of course, they can't do that if they never know about it.

It doesn't appear that prosecutors or judges are aware this is happening either, but it nonetheless potentially violates a defendant's constitutional rights.

DEA officials who oversee the SOD insist that the information they send to law enforcement is obtained though legal means, including court order and subpoena. They say Congress has been aware of and even briefed on the program, though an agency spokesman wasn't sure if legislators were specifically aware of the way tips were being used to prosecute domestic criminal cases.

The SOD is comprised of some two dozen partner agencies, including the FBI, the NSA, the CIA, the Internal Revenue Service and the Department of Homeland Security. It was founded back in the mid-1990s as a way to combat Latin American drug cartels.

Today, it appears the investigations are much more focused on domestic crimes, though its specific functions are kept top-secret.

Those who had prior involvement with the agency explained that an SOD tip would work like this:

SOD officials would call up local law enforcement and tell them to be at a certain truck stop at a certain time and look for a certain vehicle. State police would comply, find an excuse to stop that vehicle and then have a drug dog do a sniff and conduct a full search.

Former DEA officials speaking on the condition of anonymity defended the practice of having a law enforcement agency "recreate" the method of discovery, which is also known as "parallel construction," saying it's been done for years by drug enforcement authorities all over the country.

While some argue it could be legal in terms of establishing probable cause, the act of concealing it as a means of hiding how they got the information in the first place is likely a violation of pretrial discovery rules.

As one legal scholar exclaimed, it's not only alarming but "pretty blatantly unconstitutional."

It's a positive thing that these matters are now coming to light. It's important if you have been arrested for a drug-related crime that you immediately contact an experienced criminal defense attorney.

Continue reading "Drug Investigations Under Fire in National DEA Probe" »

August 12, 2013

D.C. Defense Lawyers Explain Your Fourth Amendment Rights Regarding Unreasonable Search

Recently, several reels of dash camera footage have surfaced on public video hosting sites revealing Texas police officers taking extreme measures in searching women reportedly suspected of marijuana possession.
Our D.C. criminal defense attorneys understand that in both instances, the police officers stopped the women for relatively minor offenses - one for littering and the other for speeding. It does not appear, at least based on court records and the videos, that there was any probable cause to suspect these women were in possession of marijuana in the first place.

And yet, the officers in both cases subjected the women to full cavity searches in roadside stops. The searches, performed by gloved, female troopers, reportedly happened in broad daylight in full view of passing vehicles. The videos are graphic and show the officers probing inside the women's genitalia, all the while threatening that they will find the drugs.

Drugs were not found in either incident.

The women have since filed civil lawsuits in federal court, alleging these actions are unconstitutional. Their cases appear quite solid.

First of all, even if the officers had reason to suspect the women were in possession of marijuana, such searches are incredibly invasive and inappropriate - not to mention likely Fourth Amendment violations against unreasonable searches. While officers tend to be given a wide latitude in searching a person's vehicle, personal searches of this nature cross the line. Even if the officers had found something, it's likely that such evidence would have been suppressed in court on the basis that these searches are illegal.

Similar allegations out of Milwaukee a few years ago resulted in the discipline of eight police officers there. Those officers were accused of conducting genital searches on suspects when they had no legal authority to do so.

Another case out of Florida recently involves a woman who was ordered by a male trooper to lift her shirt and bra up over her breasts - exposing herself to passing traffic - in order to ensure she wasn't hiding drugs in her bra. She had been stopped for a non-functioning headlight. No drugs were found.

In the Texas cases, the women were not asked for consent. Rather, they were ordered to submit.

One of those officers involved has since been charged with sexual assault and fired from her position.

There are reports that such actions are widespread in Texas. We haven't heard of anything similar taking place here in D.C., but we do know that when it comes to roadside searches, many people are unaware of their basic rights.

The Fourth Amendment of the U.S. Constitution is very clear: "The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated and no warrants shall issue but upon probable cause supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized."

The idea is to protect your privacy and freedom from arbitrary invasions. The courts have interpreted this in different ways with regard to traffic stops.

Basically, an officer can ask you at any point to search anything. By the same token, you have the right to say no. That is true whether we're talking about your vehicle, the property inside your vehicle or your own person. If the officer does not have probable cause, that is where it should end.

If you refuse a personal search, the only reason an officer would be allowed to pat you down without probable cause would be to ensure his or her own safety. For example, if there was suspicion that you were armed with a concealed weapon.

The bottom line is that anytime a roadside search is conducted on your person or property, you should question it. Even if officers do find something in those searches for which to arrest you, if the search wasn't proper, that evidence should be suppressed and it's likely the case against you would be tossed.

Continue reading "D.C. Defense Lawyers Explain Your Fourth Amendment Rights Regarding Unreasonable Search" »

August 6, 2013

D.C. Marijuana Arrests Highest Per Capita in Nation as First Dispensary Opens

Just blocks from the U.S. Capitol, the first legal marijuana sales are now underway, with a total of nine patients in D.C. authorized to purchase the drug for medicinal purposes.

Seven of those individuals are authorized to buy two ounces every month.
The district's first dispensary, Capital City Care, opens some 15 years after 70 percent of the voters here authorized a measure allowing the drug to be provided for patients with a prescription.

Our D.C. marijuana defense lawyers understand that the opening comes on the heels of a report finding that D.C. leads the nation in terms of arrests for marijuana possession per capita.

In 2010, D.C. police made 846 marijuana possession arrests per 100,000 residents. The national rate is 256 per 100,000 - making a marijuana possession arrest 3.3 times more likely here in D.C. than in the country as a whole.

The information was revealed in a report by the American Civil Liberties Union, whose primary focus was to highlight racial disparities with regard to marijuana arrests. Across the country, blacks were nearly 4 times as likely to be arrested for marijuana possession than their white counterparts, despite the fact that usage rates are about the same.

However, in D.C., that disparity is much more pronounced in D.C., where blacks are 8.05 times more likely to be arrested than whites for possession of marijuana. This skew is viewed as a significant contributing factor to widespread poverty among minority communities, as a marijuana arrest can affect a person's ability to secure a good job or federal financial aid for higher education.

Maryland has the fourth-highest rate in the country for marijuana possession arrests, with 409 per 100,000 residents. It follows D.C., New York and Nebraska.

D.C. Police Chief Cathy Lanier insists that marijuana arrests are not a priority. Rather, she says, the emphasis on policing is on violent crimes.

In the wake of all this information, two Democratic D.C. councilmen - Tommy Wells and Marion Berry - have introduced a bill, which was partially drafted by the Marijuana Policy Project, that would decriminalize minor marijuana arrests in the District.

In effect, it would make marijuana possession a non-criminal offense that would be similar to a $100 parking ticket. It would also decriminalize possession of marijuana paraphernalia, assuming you have less than one ounce of marijuana on you at the time of the arrest and you are over 18. However, if you are under the age of 18, possession of marijuana paraphernalia would still be met with a $100 fine.

Juveniles would also have to undergo a four-hour group treatment therapy session within one year of their arrest.

As Wells put it, it's not an approval of recreational marijuana use as much as it is a shift in approach. An administrative penalty, he said, could ultimately be more effective and less damaging than continuing to slap people with criminal sanctions and permanent criminal records.

There is good reason to believe the measure could pass. A survey conducted earlier this year by the Public Policy Polling Group found that three-fourths of D.C. voters favor decriminalization of less than one ounce of marijuana.

Simple possession of the drug is currently considered a misdemeanor, punishable by up to 180 days in jail and a $1,000 fine, per D.C. Code 48-904.01. A subsequent offense could be punished by double that.

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August 3, 2013

D.C. Gun Charges Dismissed Against Sergeant Who Possessed AR-15

A former D.C. Protective Services Police Department sergeant was facing more than a year in prison for unlawfully possessing an AR-15 assault rifle, which his bosses had authorized him to purchase.
Our D.C. criminal defense lawyers understand that in the end, it was not this authorization but a prosecution failure that resulted in a judge dismissing all three weapons charges against the officer.

The defendant's guilt or innocence was not decided by the judge.

Here's what happened:

The defendant purchased the weapon after the chief of his agency announced that it planned to for a highly-specialized SWAT team that would be armed with high-powered semiautomatic weapons. That team would reportedly be focused on curbing domestic terrorism and workplace violence.

The D.C. Protective Services Police Department is an agency whose officers have limited arrest powers and are charged with guarding municipal offices. They are authorized to carry 9 mm handguns. Assault weapons continue to be illegal in the District.

The Maryland purchase of the AR-15, which the defendant at the time had described as his "dream weapon," was authorized by the police agency's top commanders, who cited the defendant's need to train. The deputy chief even provided a letter that indicated the rifle's purchase was authorized by agency because it was intended for official duties. This clearance allowed the officer to circumvent both the normal 30-day waiting period, as well as the federally-required background check that he otherwise would have had to undergo.

At no point was that weapon stored in a police facility, prosecutors say. Nor was it ever reportedly used for anything related to duty. City leaders halted the agency's plans to form a SWAT team.

Prosecutors contended that all along, the defendant sought authorization to purchase the weapon solely for his personal possession and use.

The city has some of the most restrictive gun laws in the nation, but the officer insisted his superiors had given him permission to purchase and possess the weapon.

The defendant in this case has been suspended since he was first arrested back in March of 2011. He turned down various offers of a plea bargain, which in the end seems to have worked to his favor.

Prosecutors refused to back down on the case, despite insistence that it was all political show-boating, designed to put a smaller police agency in "its place."

However, the reason the judge ultimately tossed the charges was because mid-trial, defense lawyers discovered an e-mail, beneficial to their case, that prosecutors had failed to turn over to the defense.

Whether it was an honest oversight or not doesn't matter. Prosecutors have a duty to turn over any and all evidence to defense lawyers prior to trial. That includes exculpatory evidence, or that which is considered favorable to the defense.

A failure to do this can be grounds for a mistrial or, as in this case, a dismissal of charges.

Prosecutors reportedly plan to appeal to a higher court to allow them to proceed with another trial.

Continue reading "D.C. Gun Charges Dismissed Against Sergeant Who Possessed AR-15" »

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.
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.

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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.
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.
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.
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.
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.
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.

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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.
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.
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.
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.
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.
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" »