Category Archives: DNA

A Cell Phone “Ping” Is a Search

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In State v. Muhammad, the WA Supreme Court held that a cell phone “Ping” is a search under the WA Constitution and the Fourth Amendment.


Police investigated the rape and murder of Ms. Ina Claire Richardson. The night she was killed, Richardson had shopped at a local grocery store.  Security cameras recorded her walking through the parking lot toward a distinctive maroon sedan. Minutes later, the vehicle’s headlights switched on, and the vehicle exited the parking lot, drove onto an access road behind a nearby hotel, and parked. Two individuals appeared in the car, which remained parked for approximately one hour. Police officers later discovered a condom wrapper at this location.

On November 10, 2014, a law enforcement officer recognized the unique features of the maroon sedan from the security footage and conducted a traffic stop. The driver was Mr. Muhammad. During the stop, the officer asked Muhammad about his vehicle, asked him whether he had gone to the grocery store or had been in the area on the night of the murder, and obtained Muhammad’s cell phone number before letting him go.

After this encounter, law enforcement “pinged” Muhammad’s cell phone without a warrant. The ping placed Muhammad in an orchard in Lewiston, Idaho. Washington and Idaho police arrived, seized Muhammad’s cell phone, and impounded his car. Police also sought and obtained a search warrant for Muhammad’s car.

Muhammad was taken into custody. He denied any involvement in the rape and murder and eventually asked for legal counsel. Police later searched Muhammad’s car. They discovered blood on the passenger seat; in the trunk, they found latex gloves and other incriminating evidence. The police also discovered condoms in the trunk of the sedan. These condoms matched the condom wrapper found by the hotel service entrance. Finally, The blood was matched to that of Ms. Richardson. Autopsy swabs of Richardson’s vagina and fingernails revealed a limited amount of DNA (deoxyribonucleic acid) matching Muhammad’s profile.

The police obtained a search warrant for Muhammad’s cell phone records. These calls he made on the night of the incident connected to multiple cell towers, indicating that Muhammad was moving. One such cell tower placed Muhammad in the location where Richardson’s body was found.

Muhammad was arrested and charged with rape and felony murder.

At trial, Muhammad moved to suppress all physical evidence collected as a result of the warrantless ping of his cell phone. After a CrR 3.6 hearing, the trial court issued a written order denying the motion based in part on exigent circumstances. A jury convicted Muhammad as charged. Muhammad appealed his convictions.


  1. The Cell Phone “Ping” Tracking Was A Warrantless Search.

The WA Supreme Court held that the “ping” tracking of Muhammad’s cell phone was indeed a search.

“When law enforcement loses sight of a suspected individual, officers need merely ask a cellular service carrier to ping that individual’s phone and almost instantaneously police acquire data on the suspect’s past and present location,” said the Court. “This location tracking technique does substantially more than binoculars or flashlights; it enables officers to see farther than even the walls of a home—it pierces through space and time to pinpoint a cell phone’s location and, with it, the phone’s owner.”

The Court further reasoned that this type of search was exactly what happened to Mr. Muhammad. “The police could not locate Muhammad,” said the Court. “They knew only that he had likely left the area after officers returned to his apartment complex and found the maroon sedan had disappeared. As Muhammad pointed out, the officers’ senses alone could not locate him unless they converted his phone into a tracking device,” said the Court.

“Historical and real-time CSLI, like text messages, reveal an intensely intimate picture into our personal lives. Our cell phones accompany us on trips taken to places we would rather keep private, such as the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on.”

              2. Exigent Circumstances Exist to Justify the Warrantless Cell Phone Search.

The Court said that because the State failed to get a warrant prior to pinging Muhammad’s cell phone, the evidence obtained pursuant to the improper search should be suppressed unless the State proves that an exception to the warrant requirement applies. “Exigent Circumstances” is one of those exceptions.

To prove exigent circumstances, the State must point to specific, articulable facts and the reasonable inferences therefrom which justify the intrusion. “The mere suspicion of flight or destruction of evidence does not satisfy this particularity requirement,” said the Court.

The Court reasoned that under the facts of this case, the State has proved exigent circumstances—specifically that Muhammad was in flight, that he might have been in the process of destroying evidence, that the evidence sought was in a mobile vehicle, and that the suspected crimes (murder and rape) were grave and violent charges.

With that, the WA Supreme Court affirmed Muhammad’s conviction.

Please read my Search and Seizure Legal Guide and contact my office if you, a friend or family member face criminal charges and the evidence was obtained through a warrantless search of cell phone data and/or location. It is imperative to hire an experienced criminal defense attorney who is well-versed in the law regarding search and seizure of this evidence.

Neuroscience Defense

Illustration of man holding knife while being controlled by DNA puppet strings.
Incredibly interesting article by reporter Jon Schuppe of NBC News discusses how more criminal defendants are turning to brain science to argue that they shouldn’t face harsh punishment.

Mr. Schuppe’s story focused on the criminal defense of a man named Anthony Blas Yepez who was convicted of second degree murder and also suffered from a rare genetic abnormality linked to sudden violent outbursts. Here, Yepez discovered that a genetic deficiency — a variant of a gene named MAO-A, which regulates aggressive behavior in men — along with abuse he had suffered as a child were partly to blame for his crime. As of now, the New Mexico Supreme Court is considering whether Mr Yepez’ appeal on the issue of whether he was in control of himself when he committed the crime.

The court’s decision — still months away — could accelerate a trend in the criminal justice system: the use of behavioral genetics and other neuroscience research, including the analysis of tumors and chemical imbalances, to explain why criminals break the law. The rapidly developing field is forcing officials to confront new questions about how changes in the brain influence behavior — leading some to rethink notions about guilt and punishment.

According to Schuppe’s article, this cutting-edge evidence, collected through brain scans, psychological exams and genetic sequencing, has been deployed in a range of ways: to challenge whether a defendant was capable of premeditated murder, whether a defendant was competent to stand trial, whether a defendant should be put to death. Most of those attempts to use neuroscience as a defense have failed, researchers say. But some — about 20 percent, according to one study — have worked, winning defendants new hearings or reversals of convictions.

Mr. Yepez’s genetic mutation was first documented in 1993 in members of a Dutch family with a severe version that has since been found in a handful of families worldwide. There are less extreme, and less rare, versions that have been linked to an increased risk of criminal convictions — but only among men who also suffered from abuse as children. Some researchers began dubbing MAO-A the “warrior gene,” a term that was picked up by documentary filmmakers, talk show hosts and consumer-DNA testing companies.

Mr. Yepez’s defense attorney Ian Loyd went online and found a commercial genetic testing company, FamilyTreeDNA, that charges $99 to determine if someone has the MAO-A deficiency. He had one of his investigators visit Yepez at the Santa Fe County jail, where he swabbed Yepez’s cheek for cells. A few weeks later, the results came back positive.

At trial, attorney Loyd tried admitting the evidence to the jury. Unfortunately, the trial judge suppressed the evidence. Afterward, the jury ─ unaware of Yepez’s genetic mutation ─ convicted him of second-degree murder. The judge sentenced him to 22 years in prison. His lawyers said they hope the state Supreme Court will grant him a new trial, this time using the genetic evidence to help explain the killing.

Helen Bennett, the lawyer representing Yepez before the state Supreme Court, said the case will test how neuroscience is complicating determinations of whether someone intended to commit a crime.

“These genetic markers and the way we’re learning how they operate in the brain makes the determination of intent much more nuanced,” Bennett said.


According to Schuppe’s article, the growth of neuroscience evidence — typically in the form of brain scans and psychological tests — dates back about three decades. It has most often been used to seek leniency for juveniles or against the death penalty for killers. But the strategy has expanded to a wider set of cases.

Behavior is determined by a multitude of forces within the brain, with genes only providing a starting point, researchers say. A person’s experiences or environment play a large role. And it’s difficult to show a direct cause and effect involving a particular condition.

“Year after year, more and more criminal defendants are using neuroscience to bolster their claims of decreased responsibility for their criminal conduct and decreased moral culpability relevant to their sentencing,” said Nita Farahany, a law and philosophy professor at Duke University who wrote in a study published in the January issue of the Annual Review of Criminology.

Many scientists and researchers point out that prosecutors, too, might one day seize on neuroscientific evidence, using it to argue that a defendant is dangerous and should be punished harshly.

My opinion? It’s utterly fascinating how our advancements in science can magnify and cross over into actual defenses in criminal law. Is it nature, nurture or a combination of both which leads people to commit crimes?

Please contact my office if you, a friend or family member are charged with a crime and a brain abnormality may be the cause. I’ve achieved excellent results for clients having diagnosable brain injuries and/or suffered from other medical issues like slow-wave sleep,  which is a sleepwalking disorder associated with violent behavior. These medical ailments, and others like them, can support a Diminished Capacity defense.

How to Delete Your DNA Data From Genetics Companies

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Wonderful article from reporter Erin Brodwin of Business Insider discusses how to delete your DNA data from genetics companies like 23andMe and Ancestry.

The recent arrest in one of California’s most infamous serial-killer cases was based in large part on a DNA sample submitted to a genetics website by a distant relative of the suspect.

Brodwin writes that, naturally, the news may have you concerned about the security of your own genetic material. You may be wondering how to delete it from genetic databases kept by popular genetics testing companies like 23andMe and Ancestry.

Those two databases were not used by investigators to track down Golden State Killer suspect Joseph James DeAngelo. Instead, investigators used a service called GEDmatch, which lets customers upload a raw DNA signature. Investigators created a profile for the suspect using DNA sourced from a long-stored crime scene sample, and found matches between DeAngelo’s crime scene DNA and the DNA of a distant family member.

In her article, Brodwin writes that 23andMe, Ancestry, and Helix (National Geographic’s genetics service) only accept saliva samples for genetics testing — an easy way of obtaining DNA. But a similar company called Family Tree DNA could likely accept hair or blood, according to Joe Fox, an administrator for one of the company’s surname projects.

Whichever way a company gets your DNA, privacy advocates say there’s cause for concern. Although genetic data is ostensibly anonymized, companies can and do sell your data to third parties like pharmaceutical companies. From there, it could find its way elsewhere, advocates say.

The core service provided by most commercial genetic tests is built on the extraction of your DNA from your spit — that’s how you get the results about your health and ancestry information.

Here’s how to delete your data from a few of these services.

Deleting DNA Test Results from 23andMe.

After registering your spit sample online with 23andMe, the company will ask if you’d like your saliva to be stored or discarded. But you are not asked the same question about your raw genetic data — the DNA extracted from your spit.

Based on the wording of a document called the “Biobanking Consent Document,” it’s a bit unclear what happens to that raw DNA once you decide to have the company either store or toss your spit.

Here’s the statement’s exact language:

“By choosing to have 23andMe store either your saliva sample or DNA extracted from your saliva, you are consenting to having 23andMe and its contractors access and analyze your stored sample, using the same or more advanced technologies.”

That leaves a bit of a grey area as far as what 23andMe has the ability to keep, and how they can use your DNA information. If your spit or DNA sample is stored, the company can hold onto it for between one and 10 years, “unless we notify you otherwise,” the Biobanking Consent Document states.

Still, you can request that the company discard your spit. To do so, go to its Customer Care page, navigate to “Accounts and Registration,” scroll to the bottom of the bulleted list of options, and select the last bullet titled “Requesting Account Closure.”

Once there, you must submit a request to have your spit sample destroyed and/or have your account closed.

Deleting DNA Test Results from Ancestry.

If you want to delete your DNA test results with Ancestry, use the navigation bar at the top of the homepage to select “DNA.”

On the page with your name at the top, scroll to the upper right corner, select “Settings,” then go to “Delete Test Results” on the right side column.

According to the company’s latest privacy statement, doing this will result in the company deleting the following within 30 days: “All genetic information, including any derivative genetic information (ethnicity estimates, genetic relative matches, etc.) from our production, development, analytics, and research systems.”

But if you opted into Ancestry’s informed “Consent to Research” when you signed up, the company says it can’t wipe your genetic information from any “active or completed research projects.” It will, however, prevent your DNA from being used for new research.

To have the company discard your spit sample, you must call Member Services and request that it be thrown out.

Deleting DNA Test Results From Helix.

In its most recently updated Privacy Policy, Helix states that it may “store your DNA indefinitely.” It also keeps your saliva sample, but you can request that it be destroyed by contacting Helix’s Customer Care via a request form that looks similar to 23andMe’s.

My opinion? Thankfully, the police conducted lawful and highly intelligent investigations leading up to the capture of the Golden State Killer. They should be congratulated. And these highly remarkable techniques remind us that the information we share with the world can be accessed anywhere, any time, by the authorities. Like Brodwin mentions,  companies can and do sell your data to third parties like pharmaceutical companies. From there, it could find its way elsewhere.

Please contact my office if you, a friend or family member face criminal charges involving the authorities accessing DNA. If the search was unlawful, then the evidence can be suppressed. Hiring a competent defense counsel who is familiar with search and seizure  law is the first and best step toward getting criminal charges reduced or dismissed.

Exonerations On the Rise


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News reporters Alanna Durkin Richer  and Curt Anderson of the Associated Press wrote an article describing how last year, 68 out of 157 exonerations were cases in which the defendant pleaded guilty. In Trial or Deal? Some Driven to Plead Guilty, Later Exonerated the article describes the difficult dilemma of many defendants in the criminal justice system: either accept the Prosecutor’s plea offer or risk facing much harsher consequences if found guilty at trial.

Apparently, more than 300 of the more than 1,900 people who have been exonerated in the U.S. since 1989 pleaded guilty, according to an estimate by the National Registry of Exonerations. The registry is maintained by the University of Michigan Law School using public information, such as court documents and news articles.

Last year, 68 out of 157 exonerations were cases in which the defendant pleaded guilty, more than any previous year. The numbers reflect an overwhelmed criminal justice system with public defenders taking more cases than they can handle; as well as court officials who try saving the government money with plea bargains compared with costly trials.

The data is even more daunting. Last year, more than 97 percent of criminal defendants sentenced in federal court pleaded guilty compared with about 85 percent more than 30 years ago, according to data collected by the Administrative Office of the U.S. Courts. The increase in guilty pleas has been a gradual rise over the last three decades.

No one knows exactly how many innocent people are behind bars for pleading guilty. Sociologists have estimated that between 2 and 8 percent of people who plead guilty are in fact innocent.

The article emphasized how defendants who were exonerated after pleading guilty often have prior criminal records and come from poor backgrounds and are not well-educated. They’re typically represented by public defenders juggling dozens of cases in a day.

Many exonerees were cleared of wrongdoing by taking a new look at DNA evidence in blood or other body fluids, according to the University of Michigan database. Some were the victims of prosecutorial misconduct, while shoddy police work was to blame in other cases — such as a mistaken FBI hair analysis or falsified fingerprint evidence. Some falsely confessed because of improper interrogation techniques while others maintained their innocence throughout.

Making the matter worse, it’s not just prosecutors and defense attorneys who seek to cut plea deals. The article said many judges prefer that route, too. Judges who resolve cases rather than let them languish tend to be seen as more successful. Similarly, explained the article, prosecutors who close cases tend to rise faster in their careers.

My opinion? People facing criminal charges MUST seek experienced defense counsel to defend their rights, investigate the facts, interview witnesses, argue pretrial motions, put their clients in the best light possible and conduct an active; fair trial when necessary.

Pleas contact my office as soon as possible if you, a friend or family member is facing criminal charges. The epidemic of increased exonerations due to injustice in our courts as well as our incoming administration’s trampling of individual rights shows a growing need for competent representation. Put simply, defendants should not plead guilty to criminal charges they are not guilty of.

“Voodoo Science” Debunked

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Interesting article from the Wall Street Journal written Alex Kozinski , a judge on the Ninth Circuit Court of Appeals since 1985, discusses how the U.S. has relied on flawed forensic evidence techniques for decades, resulting in false convictions.

According to Judge Kozinski, the White House released a report that fundamentally changes the way many criminal trials are conducted. The new study from the President’s Council of Advisors on Science and Technology (PCAST) examines the scientific validity of forensic-evidence techniques—DNA, fingerprint, bitemark, firearm, footwear and hair analysis. It concludes that virtually all of these methods are flawed, some irredeemably so.

The study indicates that only the most basic form of DNA analysis is scientifically reliable. Some forensic methods have significant error rates and others are rank guesswork. “The prospects of developing bitemark analysis into a scientifically valid method” are low, according to the report. In plain terms, says Judge Kozinski, “Bitemark analysis is about as reliable as astrology.” Yet many unfortunate defendants languish in prison based on bad science.

Even more disturbing, the article states that forensic scientists – who are often members of the prosecution team – sometimes see their job as helping to get a conviction. This can lead them to fabricate evidence or commit perjury, says Judge Kozinski. Many forensic examiners are poorly trained and supervised. They sometimes overstate the strength of their conclusions by claiming that the risk of error is “vanishingly small,” “essentially zero,” or “microscopic.” The report calls such claims “scientifically indefensible,” but jurors generally take them as gospel when presented by government witnesses who are certified as scientific experts.

Apparently, problems with forensic evidence have plagued the criminal-justice system for years.

The PCAST report recommends developing standards for validating forensic methods, training forensic examiners and making forensic labs independent of police and prosecutors. “All should be swiftly implemented,” says Judge Kozinski, who adds that preventing the incarceration and execution of innocent persons is as good a use of tax dollars as any:

“Among the more than 2.2 million inmates in U.S. prisons and jails, countless may have been convicted using unreliable or fabricated forensic science. The U.S. has an abiding and unfulfilled moral obligation to free citizens who were imprisoned by such questionable means. If your son or daughter, sibling or cousin, best friend or spouse, was the victim of voodoo science, you would expect no less.”

My opinion? Jurors rely HEAVILY on forensic evidence in their deliberations. And it makes sense: it’s a huge task to weigh evidence and sift through the rhetoric of arguments from the prosecution and defense. Cold, hard, quantifiable and scientific facts make it easy for jurors to render decisions.

Consequently, the information from this report is both good and bad news. It’s good because the truth about  “voodoo science” in the courtroom has finally surfaced to the mainstream. It’s bad because hundreds, if not thousands of innocent people are convicted of crimes and serve years in prison based on unreliable evidence for crimes they didn’t commit.

Fortunately, there’s hope. According to Judge Kozinski, the report “provides a road map for defense lawyers to challenge prosecution experts.” Excellent.

Competent attorneys should immediately gain an understanding of challenging prosecution experts who bring voodoo science in the courtroom. It’s the only way to shed light on this grim subject and bring justice to our courts.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

FBI DNA Database Error

Here is a letter from the WA State Crime Lab outlining some errors that have been discovered in the FBI DNA database that was used by the lab when “estimating the significance of having included an individual as a possible contributor to a forensic DNA typing profile.”

The Federal DNA Database Unit (FDDU) analyzes DNA markers from buccal and blood samples of federal convicted offenders, arrestees facing federal charges, individuals convicted of certain District of Columbia offenses, as well as non-U.S. citizens detained under the authority of the United States of America, for development of DNA profiles that are uploaded to the National DNA Index System (NDIS).

The FBI does not believe the errors will materially affect any assessment of evidence. Although the WA State Crime Lab agrees, it also acknowledges that “some probabilities will be slightly stronger while some others will be slightly weaker.”   They have updated the databases as of June 3, 2015 and any case files completed before this scheduled for trial or that are subject to discovery or public disclosure will have the probability estimates recalculated.  Only if there is a difference greater than 10-fold will  an amended report be issued.

My opinion? Many of us believe DNA evidence is SO foolproof. And for the most part, when calculated correctly, it is. However, errors like these to our system of justice. Jurors, victims, defendants, Prosecutors and Defense Attorneys heavily rely on DNA evidence to prove whether the defendant actually committed the alleged crime. The evidence is excruciatingly important to cold-case murders and sex offenses. Please, WA State Crime Lab, test and retest your samples when updating the database!

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

State v. MacDonald: Police Cannot Testify for Victims at Sentencing

In a close opinion, the WA Supreme Court ruled in State v. MacDonald that an investigating officer may not request the judge for a sentence greater than that in the State’s plea agreement. Even when the investigating officer claims to be speaking on the victim’s behalf, statements that are contrary to the plea agreement will constitute a breach of the agreement.
 In 1978, Arlene Roberts was found dead in her home. The police collected several latent fingerprints from bank statements and traveler’s checks within her trailer but never identified a suspect. The case went inactive.
 In 2010, detective Scott Tompkins reviewed the case files and matched the fingerprints to MacDonald.
The Prosecutor charged MacDonald with Murder in the First Degree.
 After the trial began, the parties entered into plea negotiations. The State agreed that the prosecutor would change the charge from first degree felony murder to second degree manslaughter and recommend a five-year suspended sentence in exchange for an Alford plea. MacDonald accepted the plea agreement.
 At sentencing, Deputy Prosecutor Kristin Richardson informed the court that detective Tompkins wished to speak on behalf of the victim pursuant to RCW 9.94A.500. Though detective Tompkins was involved throughout the plea negotiations and Richardson intended for Tompkins to sit at counsel’s table pursuant to Evidence Rule 615 in order to assist her, Prosecutor Richardson asserted that she did not know what Tompkins wanted to say. MacDonald objected, but the trial court permitted Tompkins to testify as a victim advocate over MacDonald’s objection.
Tompkins immediately asked the court to impose the maximum sentence. He described what happened to the victim and gave the court marked photographs of the victim’s body as police found her. Tompkins informed the court that the medical examiner’s report contained 18 paragraphs detailing her injuries and then asserted that Roberts “died a horrific death.”
The trial court imposed the maximum sentence, giving MacDonald 60 months in prison with a minimum sentence of 55 months and credit for time served. Macdonald moved to withdraw his plea. The Court of Appeals denied MacDonald’s motion.

The WA Supremes decided to reverse the Court of Appeals and permit MacDonald to decide whether to withdraw his guilty plea or to seek specific performance. The court agreed with the reasoning in State v.  Sanchez that investigating officers cannot make sentence recommendations contrary to a plea agreement. The Court also reasoned that the same due process concerns stopping an investigating officer from undermining a plea agreement also stop that officer from making unsolicited remarks on a victim’s behalf to the court at sentencing that are contrary to the plea agreement. Washington’s crime victims’ rights laws do not permit the State to breach a plea agreement.

My opinion? Although I offer my deepest condolences to the family of the victim, I must agree with the WA Supremes on this.

A plea agreement is a contract between the State and the defendant. The Prosecutor thus has a contractual duty of good faith. Prosecutor cannot undercut the terms of the agreement, either explicitly or implicitly, or by conduct showing intent to circumvent the terms of the plea agreement. In Washington, the statutory relationship between prosecutors and investigating officers binds investigating officers to plea agreements in a criminal case.

That said, detective Tompkins was acting in the role of substantially assisting the prosecution. This is unlawful. It violates procedural due process. Apparently, the WA Supremes agreed. Good opinion.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Washington Legislature Passes Bill Supporting DNA Testing of Rape Kits.

That was me on the shelf': Maryland lawmakers weigh legislation requiring  rape kits be tested - Baltimore Sun

On March 2, 2015, the Washington House Appropriations committee voted “Yes” on House Bill 1068; which supports DNA testing of rape kits sitting in evidence rooms across Washington Counties. The bill passed 82-15.

Essentially, numerous Washington counties – including Whatcom County – could help find serial rapists. House Bill 1068 arrives on the heels of recent controversy that rape kit evidence containing DNA evidence has been ignored by police departments statewide.

The Bellingham Herald ran two articles on this news. One story, titled Prosecutor: Testing Evidence Kits Can Lead to Finding Repeat Rapists discussed people’s responses to House Bill 1068.

The article mentions that Prosecutors like Rick Bell of Ohio support House Bill 1068. He claims that out of 6,000 kits tested, 2,244 received a hit to a known offender in a national database. Additionally, of the rapists indicted by his his office in Cuyahoga County, 30 percent are serial rapists. “Those serial offenders were going undetected, in part because labs couldn’t process all cases, so kits involving acquaintance rapes weren’t tested,” said Bell.

Also according to the article, Western Washington University college students like Heather Heffelmire, who is working in Olympia as the Legislative Liaison for Western Washington University’s Associated Students, testified in favor of House Bill 1068 during a public hearing in January. She said one of the main legislative priorities for WWU’s student body this year is to support survivors of sexual violence. “If you think about assault on campuses, it’s not like a predator does one assault — it’s usually a pattern of behavior,” Heffelmire said. “If you’re not having these kits tested, you can’t find that out.”

Additionally, Leah Gehri, the Director of Emergency Services at St. Joseph hospital in Bellingham WA, said she thinks HB 1068 is timely. “When you think about how long DNA evidence has been around, … at one point there weren’t a lot of DNA profiles hanging out there, they just didn’t have a lot of them,” Gehri said. “Now however, 20 years later, when profiles are quite common, the likelihood that an untested kit would now match up against a perpetrator in the system is more likely than it ever has been.”

Another article from the Bellingham Herald titled, Washington Lawmaker Tries to Tackle Thousands of Untested Rape Kits in State discusses the efforts of Rep. Tina Orwall, D-Des Moines toward having House Bill 1068 passed. 

The specific language House Bill 1068 is as follows:

Substitute offered in the House on January 23, 2015, requires a law enforcement agency to submit a request for laboratory examination within 30 days of receiving a sexual assault examination kit, provided that the victim or the victim’s legal guardian has consented to analysis of the kit as part of a sexual assault investigation. Specifies that failure to comply with the 30-day deadline does not create a private right of action against the law enforcement agency and is not a basis to exclude evidence in a court proceeding or to set aside a conviction or sentence. Creates a work group to study the issue of untested sexual assault examination kits in Washington, which must file an annual report through June 30, 2018.

My opinion? As a defense attorney, I support the notion that evidence garnered from the DNA testing of rape kits could be probative, relevant and cumulative in proving that the the perpetrator had a pattern of rape. Nevertheless, I have two concerns:

First, while I understand and agree with intent to have kits processed as quickly as possible, the timelines set forth in this proposal are probably unattainable with existing resources and do not take into account the complexities of processing kits. The 30-day timeline is very problematic for crime labs and is not feasible without a huge influx of resources (equipment, personnel, and possibly larger facilities).

Second, House Bill 1068 does not take into account the multitude of legal circumstances surrounding these kits.  For example, in a number of rape cases, the identity of the involved parties is not in question and both parties affirmatively indicate a sexual act occurred. Here, the issue is consent, not identity. Consequently, DNA analysis would only confirm what is already known.

In all likelihood, the latter issue will rest on the shoulders of jury trial judges who decide pretrial motions to admit or suppress DNA evidence in rape cases. In other words, we’ll see what happens . . .

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

State v. Fedoruk: Ineffective Assistance AND Prosecutorial Misconduct

Prosecutorial Misconduct? - Angus Lee Law Firm

In State v. Fedoruk, Division II overturned the conviction of a defendant charged with Murder in the Second Degree. The court ruled (1) Mr. Fedoruk received ineffective assistance of counsel because his attorney failed to timely pursue a mental health defense and did not object to alleged prosecutorial misconduct; and (2) the prosecutor committed flagrant and ill-intentioned misconduct in closing argument by undermining the presumption of innocence, encouraging the jury to decide the case on grounds other than reasoned evaluation of the evidence, expressing personal opinions as to Fedoruk’ s guilt, and presenting evidence not admitted at trial.

Mr. Fedoruk was charged with Murder in the Second Degree of a relative named Ischenko, whom Fedoruk had accused of raping a family member.

Apparently, Mr. Fedoruk had a long history of serious mental illness. He suffered a head injury in a motorcycle accident at the age of 18, was diagnosed with schizophrenia, and was twice admitted to a psychiatric hospital. Doctors have prescribed numerous psychotropic and antipsychotic medications, but Fedoruk had a history of poor compliance with the medication regimens.

During a 2007 competency evaluation, doctors at Western State Hospital diagnosed Fedoruk with bipolar disorder, most recent episode manic, with psychotic features. Fedoruk underwent another mental health evaluation after the State charged him with Robbery, Assault, Theft, and Criminal Trespass in 2008, and a court ultimately found Fedoruk not guilty by reason of insanity.

Despite the above background of mental health issues, Fedoruk’ s defense counsel stated at a pretrial hearing that “the Defense has no intention of putting forward an affirmative defense of diminished capacity or arguing that … Fedoruk was incapable of forming intent at the time.” And although defense counsel later requested a 60-day continuance to pursue an Insanity defense, the trial judge denied the motion and ruled defense counsel failed to lay the foundation for the defense, and that diligence was not shown.

Fedoruk’s case proceeded to trial. At trial, the medical examiner testified that Ischenko died from blunt force trauma, and possibly also strangulation. A crime laboratory analyst testified that the DNA (deoxyribonucleic acid) profile obtained from bloodstains on Fedoruk’ s clothing matched Ischenko’ s. DNA from numerous bloodstains at the end of the driveway also matched Ischenko’ s profile, as did DNA in blood obtained from under Fedoruk’ s fingernails.

The trial proceeded to Closing Argument. The Prosecutor had a lengthy closing argument on PowerPoint. Among other improper statement, the Prosecutor concluded the presentation by showing a large image of Ischenko’ s body in a ravine under the heading “Murder 2.” On the final PowerPoint slide, under an enlarged ” Murder 2″ heading, the word “GUILTY” flashes, written with all capitals in a 96 -point red font. As these words and images appeared on the screen, the prosecutor delivered the following summation:

Serhiy Ishchenko. He’ s a brother. He was an uncle. He was a father. He was a tidy man, a hard worker and considerate. He was beaten to death, stomped to death, strangled to death. His body was left in a ravine and he was left for dead by the Defendant. Murder two. The Defendant is guilty, guilty, guilty. Thank you.

Fedoruk’s attorney did not object to any portion of the State’ s closing argument, or to the PowerPoint presentation.

First, the Court of Appeals addressed the issue of whether Fedoruk received ineffective assistance of counsel. It launched  into an in-depth analysis of State v. A.N.J., which is a recent case regarding ineffective assistance of counsel by defense attorneys. The court reasoned that pursuant to State v. A.N.J., the extensive history of Fedoruk’s mental illness, all of which was available to the defense from the beginning of the case, indicates that the decision to not seek an expert to evaluate Fedoruk until it was too late fell below an objective standard of reasonableness. “With that, Fedoruk was prejudiced by the failure to investigate a mental health defense. Accordingly, Fedoruk received ineffective assistance of counsel, and we reverse his conviction.”

Second, the Court addressed the issue of whether the Prosecutor’s closing argument was improper. To prevail on a prosecutorial misconduct claim, a defendant must show that the Prosecutor’ s conduct was both improper and prejudicial. To establish prejudice, the defendant must show a substantial likelihood that the misconduct affected the jury verdict.

Additionally, a Prosecutor who throws the prestige of her public office and the expression of her own belief of guilt into the scales against the accused deprives the defendant of the constitutional right to a fair trial. Finally, a Prosecutor enjoys wide latitude to argue reasonable inferences from the evidence, but must seek convictions based only on probative evidence and sound reason.

The court also reasoned that a prosecutor should not use arguments calculated to inflame the passions or prejudices of the jury. Although a Prosecutor may point out a lack of evidentiary support for the defendant’ s theory of the case or  state that certain testimony is not denied, the general rule is that the State cannot comment on the lack of defense evidence because the defense has no duty to present evidence.

Here, the Court concluded that the Prosecutor’s closing argument was improper. First, the Prosecutor did not couch her assertions of guilt in terms of the evidence in the case, and she reinforced those assertions with inflammatory images. The Prosecutor conveyed to the jury her personal opinion that Fedoruk was guilty. This argument was improper.

Second, the Prosecutor asked the jury to infer guilt from the intuition of other witnesses who testified. Indeed, this served as the theme of her prepared remarks during closing argument. Therefore, this argument was improper. Finally, the prosecutor improperly commented on the lack of defense evidence by arguing that because Fedoruk did not present contrary evidence, Fedoruk agreed with the State’ s position. This, also, was improper. In sum, the court found the Prosecutor’s conduct was improper,  reversed the defendant’s conviction and remanded for a new trial.

My opinion? Although my heart goes out to the victim’s family, I’m happy with the Court of Appeals decision. Prosecutorial misconduct violates a defendant’s rights to a fair trial. It creates prejudices against the defendant which overwhelm a juror’s clear and rational thinking. And ultimately, it’s unnecessary. If a Prosecutor’s case is strong, then there is no need for misconduct. And the Court of Appeals said it best at the end of the opinion:

In legal doctrines, some distinctions seem cut with a jeweller’ s eye. Others seem more a work of watercolor, with one shade blurred into another. Although the line between zealous advocacy and improper argument may seem drawn in part in watercolor, the conduct at issue here fell outside its blurred zones. The prosecutor’ s actions described above constituted misconduct.


Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

State v. Garcia-Salgado: DNA Swab is Unlawful if State Lacks Warrant Supported By Probable Cause

My Rights When Police Want my DNA in a Sex Assault Case | Berry Law

In State v. Garcia, the WA Supreme Court held that collecting a DNA swab from a defendant was unlawful search because it was made without a warrant and without probable cause based on oath or affirmation.

Petitioner Alejandro Garcia-Salgado was convicted of a Sex Offense in King County Superior Court after the results of his D.N.A. test linked him to the victim, and were were admitted into evidence during his trial.  He appealed his conviction, saying that the State lacked probable cause to test his D.N.A. and that conducting the test without his consent pursuant to a court order violated his constitutional rights.

The Washington Court of Appeals affirmed Garcia-Salgado’s conviction, holding that sufficient evidence existed in the record to establish probable cause for a test of Garcia-Salgado’s D.N.A.  Garcia-Salgado appealed this decision to the Supreme Court of Washington.

The WA Supreme Court reasoned that a cheek swab for DNA is indeed a search that intrudes into the body.  A search that intrudes into the body may be made  pursuant  to  an order entered under  CrR 4.7(b)(2)(vi) if (1) the order is supported by probable case based on oath or affirmation, (2) is entered by a neutral and detached magistrate, (3) describes the place to be searched and the thing to be seized, and (4) if there is a clear indication that the desired evidence will be found, the test is reasonable, and the test is performed in a  reasonable manner.

Here, the WA Supremes decided the trial court errored in procuring the DNA swab because the State lacked a warrant supported by probable cause.  “Consequently, this court cannot say that there was probable cause to search Garcia-Salgado’s DNA.  We reverse the Court of Appeals and remand.”

My opinion?  Heinous as the crime was, the WA Supremes decided correctly.  Defendants have rights, plain and simple.  The criminal justice system must conduct investigations in accordance with these rights.  If the process is short-cutted or made sloppy, then convictions cannot stand.  Here, the State failed to get a warrant for the DNA swab.  Consequently, they should not be allowed to present the DNA evidence at trial.  Good opinion.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.