Recently in Evidence Category

October 31, 2011

Masked Suspects Attempt to Commit Robbery on Washington, DC Motorist While Yelling Trick or Treat

885249_pumpkin.jpgAccording a recent story in the Washington Times, three masked men walked up to a car in Northwest Washington, DC yelling trick or treat. While the car was stopped a traffic light, the men allegedly grabbed the driver's shirt and tried to pull him out of the car. The driver managed to drive away unharmed. The three suspects are said to have fled the scene and are being sought by the DC Metropolitan Police Department (MPD).

As a Washington, DC criminal defense attorney who handles robbery charges, I want to discuss how a key issue in a case like this is often the way in which the police identify a suspect. Assuming the police were able to get a lead on the men who are alleged to have done this (and this is only a hypothetical), they would need the victim to make an identification of the suspects if they want to have a decent case in court. The proper way to do this might be to take a series of photos and include the defendant's photo in a photo array. Usually it is six pictures of people who are supposed to look similar and one of them is the suspect. They should preserve the photo array or "six pack" so the defense attorney can see it later. They should never put more than one suspect in the same photo array, and they should not have any pictures that obviously look like mug shots. It should be a neutral setting.

Another thing the police could do to identify a suspect would be to put them a line-up. The line-up should also be composed of people who are similar in height, weight, and complexion to the suspect, and there should not be more than one suspect in one line-up. The police should also take care to assure that the victim or witness does not see the suspect wearing handcuffs or being escorted by police because this is considered suggestive and could taint the indication.

The most unreliable thing that police could do is a "show-up" identification. This is where the police take the suspect in handcuffs and bring (drag) him to the victim who is usually hidden behind a tinted window or window blinds and the victim is asked if this is the guy who robbed him. This could not possibly be more suggestive. The police often do this claiming that it was an emergency and there was not time to set up a proper line-up. Your DC defense attorney should file a motion to suppress the identification. As I have discussed in other posts in this blog, a successful motion to suppress evidence can make a major difference in a criminal case and can also increase the chance of the defendant winning the case.

In Washington, DC, robbery charges carry a potential penalty of 2 to 30 years in prison depending on the defendant' prior criminal history and whether a gun or other weapon was used during the crime. Obviously, robbery while armed is considered a more serious felony than unarmed robbery.

September 9, 2011

Man Arrested on Drug Charges after Trying to Smuggle Cocaine-Filled Clams Through Washington Dulles Airport

clams.jpgAccording to a Washington Times story, David Pocasangre Vaquiz, entered a US Customs station at Dulles airport with a black plastic bag stuffed into his luggage. When officers opened the bag, they discovered 80 clams. It has been reported that 15 of the clams had been opened, stuffed with baggies of cocaine and then glued closed. Customs officials have stated that the clams contained 5.36 ounces of powder cocaine.

As a Washington, DC criminal defense lawyer who handles drug charges, I have represented clients charged with all types of drug offenses, including simple possession, possession with intent to distribute (PWID), and possession with intent to distribute while armed. I have handled cases where ecstasy was allegedly hidden in a teddy bear, cocaine in a glove compartment and marijuana in someone's underwear, but I have never had a case where the drugs were stuffed in a clam. Despite the use of clams, the case is similar to any other, and fighting the charges often involves a motion to suppress evidence.

A motion to suppress evidence can be used to challenge the way in which the police discovered the evidence. If your lawyer can show that the cops violated the fourth, fifth or sixth amendments to the constitution, the judge can exclude the evidence. This means that the government won't be allowed to introduce it at trial. If they can't mention drugs to a jury, they will likely be forced to dismiss the charges after the defense wins a motion to suppress. This type of motion is often based on whether the police had probable cause to conduct a search. During a hearing, the government will have the officer basically read the police report to the judge, and then the defense attorney gets a chance to cross-examine the officer. I recently handled a case where the officer testified that he smelled "fresh" marijuana in the vehicle and that gave him probable cause to search the entire car. I asked him to define fresh marijuana and he said it means "unburned" marijuana. So when I asked the following question: "your testimony is that, while you were standing outside of the driver's window, you could smell unburned marijuana in the glove compartment on the passenger side of the car, correct?" When he responded that this was correct, I could hear laughter coming from the audience.

Another way to suppress evidence may deal with the documentation provided by the government and the chain of custody. If the police tested any of the evidence themselves or sent it to the FBI, ATF, or DEA labs for testing, they are required to provide full documentation of all tests done and who handled and safeguarded the evidence. They are not always able to provide this documentation because there are sometimes problems that occur. In a previous post to this blog, I discussed how a trash can said to hold the body of a murder victim was being used to throw trash away by the police rather than being secured in the blood room at evidence control.

There are numerous other grounds for suppressing evidence in a Washington, DC criminal case. Your lawyer should conduct a thorough investigation and discuss with you how these issues may apply to your case.

July 18, 2011

Marion Barry's Son Charged with Possession with Intent to Distribute (PWID) PCP, and PWID Marijuana: On Washington, DC Drug Charges

PCP.jpgAccording to a recent story in the Washington City Paper, Marion Christopher Barry, son of former Washington, DC mayor Marion Barry, was arrested and charged with possession with intent to distribute (PWID) PCP, and PWID marijuana. It has been reported that police responded to Barry's apartment in response to what sounded like a fight. When DC Metropolitan Police (MPD) officers knocked on the door, someone answered but would not open the door. The police called the DC fire department to open the door. Once in the apartment, Barry allegedly jumped out a window and fled. Police say they found a vial of liquid PCP and five sandwich bags almost completely full of marijuana. Barry later returned to the apartment on Martin Luther King Jr. Avenue in SW, Washington, DC seeking medical treatment for his bleeding foot. Barry had been previously arrested for assault on a police officer in 2005 but those charges were dismissed.

As a Washington, DC drug charges lawyer who handles cases involving marijuana, PCP, and other controlled substances, I would like to discuss one of the most important parts of a good defense: a motion to suppress evidence. One of the common things about most Washington, DC drug cases is that the defendant was arrested with drugs on their person or in their general area. This means that unless you can show that the drugs belonged to somebody else, the most effective way to defend the case is challenge the way in which the police discovered, collected, and tested the evidence. If your criminal defense attorney is able to show that the police were in violation of your Fourth Amendment rights against unreasonable search and seizure, the judge may rule the evidence inadmissible. At this point, the prosecution will probably dismiss the charges because they can't win at trial if they can't mention the drugs. I have talked about motions to suppress evidence in Washington, DC criminal cases on previous posts of this blog.

May 26, 2011

Washington, DC Medical Examiner's Office Loses its Accreditation: On Experts Used in Criminal Cases

_medical.jpgAccording to a recent Washington Times story, the Office of the Chief Medical Examiner (OCME) lost its accreditation from the National Association of Medical Examiners (NAME). The reason NAME pulled its accreditation was because Washington, DC Chief Medical Examiner Dr. Marie Pierre-Louis is not a board-certified pathologist. It has been reported that Pierre-Louis has been out of training long enough to make her ineligible to obtain board certification.

As a Washington, DC criminal defense lawyer, I am also interested to explore ways in which these discoveries can be used as a part of defense strategy. The government is generally at a major advantage before the case even begins. It is the government who has access to the DEA crime law in drug cases, the Mid Atlantic FBI lab for gun cases and every other scientific testing you can imagine. One of the things about the so-called scientific testing done by these agencies is that the general public generally believes their findings to be true and accurate. This is not always so. There have been many cases in which it has been discovered that the police were not following proper protocol. Sometimes, your criminal defense attorney will be able to show that the evidence was not only collected, handled or processed incorrectly, but also that the police did not even follow their own internal procedures. This can lead to having charges dismissed or not guilty verdicts at trial.

This is certainly true in DC DUI cases involving breathalyzers and urine samples, where the lack of confidence in police procedures has led to numerous charged being dropped and even convictions are possibly going to be overturned.

April 15, 2011

On DC Drug Charges and Expert Testimony

20 bag.jpgAccording to a recent story in the Washington Post, a Metropolitan Police Officer (MPD) was in the middle of issuing a citation for a moving violation in Washington, DC when she witnessed a Nissan Altima commit an unrelated traffic infraction. When the officer approached the suspect's vehicle, she claims to have smelled a strong odor of Marijuana and discovered over $96,000 worth of the controlled substance and arrested the driver and passenger who were later charged with possession with intent to distribute marijuana.

As a Washington DC drug charges lawyer, I would like to discuss some aspect's how the government tries to prove a drug case. The officers will usually do a field test to see if the substance tests positive. They are trained to describe drugs in a certain way and write it in the police report exactly that way. For example, a police report, called a PD 251 in Washington, DC, will usually say "I observed a plastic bag containing what appeared a to a green leafy substance, upon further examination and my training and experience, I determined the substance be consistent with marijuana. Field testing confirmed the substance to be THC, the active chemical in marijuana." This is done from a script to establish probable cause for an arrest.

Next, the controlled substance is sent to the DEA Mid-Atlantic drug testing lab, to prove it is authentic. It may also be determined to be fake, or a so-called "burn bag." The police will call in an "expert" to testify in the court about the sale of illegal drugs in Washington, DC. He will tell the Jury about how the seller places seeds and stems in the one inch bags (zips) to make them feel fat. He will tell the jury about the names used for the various jobs in a street transaction such as runners, hoppers, holders, money men, and jugglers. For that brief moment, the jurors who were probably half asleep until then, feel like they are watching the wire on HBO. In the end, the speech is always the same, and it's all from a script.

April 7, 2011

New Allegations that the Washington, DC Metropolitan Police have failed to Safeguard and Properly Store Evidence Could Lead to Criminal Cases being dismissed

fingerprint.jpgAccording to a breaking story on WUSA 9 News Now, the Fraternal Order of Police (FOP) has turned over photos which appear to show evidence of many important cases being stored improperly. There are guns and other forensic evidence piled up in unsecured locations. It has also been reported that the trash can in which police discovered the body of 17 year old Ebony Franklyn had been used by MPD officers to throw away trash. Assistant Chief Pete Newsham admits that the trash can should have been placed in the blood room to preserve evidence for trial. He stated that it was eventually placed in the proper location and doubts that it was used as a trash can.

As a Washington, DC criminal defense attorney who handles cases with forensic evidence, I want stress the importance of this discovery if it turns out to be true. The prosecutors and police have tremendous resources compared to the average defendant. They will routinely perform fingerprint tests, gunshot residue tests in gun cases, blood spatter analysis, chemical tests on narcotics, and many other scientific testing that you may be familiar with. The defendant may have an opportunity to hire their own experts to examine the evidence and present findings in court to challenge the government's experts, but this requires a lot of money. One way DC defense lawyers deal with this, is challenging the procedure by which the police tested and preserved the evidence. If the evidence is tampered with, or its status is unknown, it may be a violation of due process to admit the evidence against a defendant. Even if it is admitted, its credibility would be severely undermined.

If the police are not safeguarding evidence, they have no way of knowing if the evidence was tampered with. There is no way to accurately record a chain of custody when you don't even know where the evidence has been stored. If you can't say for certain if the trash can that was supposed to be in a vault, was being used by officers as a normal trash can, this is a major problem. For now, the case was turned over to internal affairs. It will

December 29, 2010

As Seen in Real Life: A Closer Look at Crime Scene Investigation Techniques Seen on TV

744629_self_portrait.jpgThe other night while flipping through the channels, I came upon the new ABC show, Detroit 1-8-7, and decided to give it a shot. The show is not bad and being a Soprano's fan, I like the cast. One of the things that I always enjoy seeing is the crime scene investigations and forensic techniques shown on TV.

In this episode, the police took a painting made by the suspect and compared the blue paint used to spray-paint the word "fraud" on the murder victim's car. They told the suspect that they had their crime lab analyze the paint and matched the two samples. This was "proof" that the suspect committed the homicide because his paint was found on the car. He quickly confessed.

As a Washington, DC criminal defense lawyer, I thought it might be interesting to talk about how this would happen in real life. First, the sparsely-funded DC Metro Police Department would send the sample to their crime lab, where it could take weeks or even months to get a result. Contrary to what they show on TV, the police do not have gas chromatography mass-spectrometry equipment in every station. They may have it a central crime lab or even contract with a private commercial lab. The analysis that is eventually performed might tell them the brand of paint used, which would narrow it down to the massive quantity of cans sold by Krylon or Rust-Oleum for example. It is not very plausible that they could narrow it down a specific can or even the store the sold it.

What is true about the show is that the police absolutely could tell the suspect that they had done this analysis and use many deceptive techniques to get a murder confession. The police can and often do lie to suspects being interrogated, so don't believe anything they tell you when you're in the box or charged with a crime in Washington, DC.

December 20, 2010

Anything You Tweet Can Be Used Against You in a Court of Law: How Social Media like Twitter and Facebook Are Affecting Criminal Defense

985516___network__.jpgIt seems like everyone is on Facebook, Twitter, Foursquare, blogs, or other similar social media applications these days. It's a great way to connect with old friends and stay in touch. It's also becoming a great tool for prosecutors in criminal cases. This may come as a surprise, but people like to brag about their criminal activities on these sites. In the old days, prosecutors had to send investigators in hopes of finding out if a suspect was in a gang and who his fellow gang members were. Now, it's common for gangs (known as "Street Crews" in Washington, DC) to post tagged photos on the Internet. This is making the government's job much easier.

Another trend is the use of applications like Foursquare or Places on smart phones to announce your location. Some stores have a program where you get a discount for using Foursquare. This explains the many posts announcing why people "have arrived at Starbucks on 14th and K streets in NW Washington, DC." While people seem to like this application, the US Attorney's Office seems to love it. Here is a recent example:

Prosecutor: Mr. Jones, you testified that you were with the defendant at the AMC theatre in Silver Spring, MD at 9:30pm on November 15, 2009, correct?

Mr. Jones: Yes.

Prosecutor: You own an iphone, correct?

Mr. Jones: Yes.

Prosecutor: And you sometimes use the Foursquare program to announce your current location, correct?

Mr. Jones: Yes.

Prosecutor: And, at 9:15pm on November 15, 2009, you used Foursquare to announce you were at the Caps game at the Verizon Center correct?

Mr. Jones: Uh.

While Twitter and these location applications can be used to destroy an alibi defense, there's a lot more they can do to a criminal case. According to a recent story in the Washington Post, a DWI/DUI defendant involved in an accident was going to be offered a lighter sentence until the prosecutor found his Facebook posts about him drinking and discussing the fun he was having. If this isn't enough reason to think before you post, I have saved the best (or worst) for last. A suspect allegedly broke into a home in Washington, DC and before stealing a laptop, used it to take his own picture holding the owner's money and clothes, and posted on the owner's Facebook wall. I don't think this will look good to a jury.

In light of all this new technology, as a Washington, DC criminal defense lawyer, I now have to ask all my clients if they have a Facebook or Twitter account when I do the initial interview. You can't remove the posts because they are always in an archive, but at least there won't be any surprises.