Category Archives: DNA

Washington Legislature Passes Bill Supporting DNA Testing of Rape Kits.

Assault, Bellingham, Bellingham Defense Attorney, DNA, Domestic Violence, felony, Jury Trial, Legislation, Prior Bad Acts, Rape, Sex Crimes, Violent Crime, , ,

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

Constitutional Rights, DNA, Due Process, Evidence, felony, Homicide & Manslaughter, Ineffective Assistance, Jury Trial, Prosecutorial Misconduct, Washington Court of Appeals, , ,

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.

Exactly.

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

Constitutional Rights, DNA, felony, Jail, Privacy, Probable Cause, Search and Seizure, Search Warrant, Washington Supreme Court, , ,

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.

US Supremes Rule Convicted Defendants Have No Right To Test DNA

Assault, Constitutional Rights, DNA, Due Process, felony, Forensics, Legislation, Race & Law, Rape, Sex Crimes, Uncategorized, United States Supreme Court, , ,

How Reliable Is DNA Evidence? | The Marshall Defense Firm

In Yeager v. United States, the U.S. Supreme Court ruled that convicts have no constitutional right to test DNA evidence in hopes of proving their innocence long after they were found guilty of a crime.

The decision may have limited impact because the federal government and 47 states already have laws that allow convicts some access to genetic evidence. Testing so far has led to the exoneration of 240 people who had been found guilty of murder, rape and other violent crimes, according to the Innocence Project.

The court ruled 5-4, with its conservative justices in the majority, against an Alaska man who was convicted in a brutal attack on a prostitute 16 years ago.

William Osborne won a federal appeals court ruling granting him access to a blue condom that was used during the attack. Osborne argued that testing its contents would firmly establish his innocence or guilt.

In parole proceedings, however, Osborne has admitted his guilt in a separate bid for release from prison.

The high court reversed the ruling by the 9th U.S. Circuit Court of Appeals in San Francisco. States already are dealing with the challenges and opportunities presented by advances in genetic testing, Chief Justice John Roberts said in his majority opinion.

“To suddenly constitutionalize this area would short-circuit what looks to be a prompt and considered legislative response,” Roberts said. Alaska, Massachusetts and Oklahoma are the only states without DNA testing laws. In some other states, the laws limit testing to capital crimes or rule out after-the-fact tests for people who confess.

But Justice John Paul Stevens said in dissent that a simple test would settle the matter. “The court today blesses the state’s arbitrary denial of the evidence Osborne seeks,” Stevens said.

My opinion?  HORRIBLE DECISION.  Although the crime in question was heinous, there is no doubt that a small group of innocent people — and it is a small group — will languish in prison because they can’t get access to the evidence.  This directly violates a defendant’s 6th Amendment rights.  Unbelievable.

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.