City Hall Forum on Forced Blood Draws

I know this is late notice but I just found out about it myself. If you’re free tonight and have any interest in the issue of forced blood draws in Austin, this may be your chance to put in your 2 cents:

Event: Forum with Police Chief Acevedo at City Hall
Date: Monday, March 30, 2009
Time: 6:00pm – 8:00pm
Location: City Council Chambers, City Hall (Austin)
Why: Have Your Voice Heard!! We the People DON’T WANT OUR DNA TAKEN FORCIBLY OR OTHERWISE!

Here’s the link for the more information.

DNA Contamination

An interesting story from Science and Stuff:

DNA traces of an unknown eastern-European woman had been found at almost 17 crime scenes, including two murders (including a 22 year old police officer) but also car jackings, unprofessional break-ins and on a bullet fired in a marital dispute. The crimes where spread around a large area including south-west Germany, France and Switzerland.

It now turns out that the several-hundred-men task force might have really been chasing a phantom. Alarmed by the apparent randomness of the crimes, involving both highly professional work and seemingly amateur break-ins, they started checking for contaminations in the labwork. The likeliest suspect now are the cotton swabs used to collect evidence at the crime scene. All the swabs used in the forensics works were sourced from the same supplier, a company in northern Germany that employs several eastern-European women that would fit the profile. Even more inciminating, the state of Bavaria lies right in the center of the crimes’ locations, without ever finding matching DNA in crimes on its territory. Guess what: they get their cotton swabs from a different supplier.

While the suspicion had already been growing in the last few months, the smoking gun apparently was a case where they tried to match a burned (male) corpse to DNA collected from fingerprint samples an asylum-seeker had given a few months earlier. The first test showed a match between those fingerprints and the Phantom’s DNA while a second test did not.

By the way: contaminated cotton swabs aren”t as trivial to avoid as one might think. It’s relatively easy to sterilize cotton to prevent infections. Forensics however require a complete destruction or removal of any DNA contamination, which is apparently a lot harder.

Prosecuting a “Bullshit Case”

Upon commencement of his employment, every prosecutor in Texas takes an oath to uphold his “primary duty…not to convict, but to see that justice is done.” Lest there be any doubt that this duty encompasses justice for the accused, the law goes on to explain that prosecutors “shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused.” (see Texas CCP 2.01.)

The way I read it, the duty necessarily means that a prosecutor should also refrain from prosecuting cases that lack merit. I took that duty very seriously during the short time that I was a prosecutor. But not everybody sees it that way, as I was reminded last week.

The incident involved a felony case in which my client, “John,” who’s in his 40s and has no prior criminal history, claims that he was framed.  He was arrested along with another man, “Roger,” who was a stranger to John until the night in question. According to John, Roger approached him at a convenience store, offered him $20 for a ride, then talked his way behind the wheel. After driving to the area where he supposedly needed a ride, Roger suddenly started driving like a bat out of hell until he attracted the attention of law enforcement and was stopped for a traffic violation. As Roger pulled the car over, he threw a bag of weed at John, saying “I have a felony warrant–I can’t have this on me!”

During the stop, Roger was arrested on the warrant and John’s car was searched. In addition to the bag of weed, the cops found drugs in Roger’s backback, which he had stashed in the trunk before the two men left the convenience store. The backpack contained a small amount of crack cocaine and no ID. Roger claimed to know nothing of the backpack or the drugs. John was arrested for possession of a controlled substance and possession of marijuana.

After listening to my client’s tale and noting his lack of criminal history (unusual for a crack user at his age), I decided to get an investigator involved. His investigation revealed that Roger may actually be a confidential informant. CI involvement in a drug case is a red flag to a criminal defense attorney because it means a key part of the state’s “investigation” team may have had motive to frame or entrap people to earn some kind of reward (some notorious Texas cases in which this issue came up were Hearne, Palestine, and the Dallas fake drug case; for more depth on the topic, see this Grits for Breakfast article and this academic paper). Such information is also clearly exculpatory, aka “Brady” material, which means that the state is required to turn it over…in a perfect world.

In the real world, however, you’re lucky if a prosecutor agrees that material he doesn’t want to disclose is exculpatory (by definition, it tends to hurt his case) and he’s unlikely to suffer any real consequence for failing to turn it over. Even so, the Travis County D.A.’s office is (hopefully) still smarting from a recent scandal involving a prosecutor who failed to disclose Brady material (see the Statesman coverage for additional detail), so I was thinking that its prosecutors may be a little more sensitive to the issue for a short time at least.

So before I spent a bunch of time trying to get discovery through formal procedures, I decided to see if the felony prosecutor, “Ted,” would cooperate with me. I broached the issue at our scheduled pretrial conference last week and asked him to make inquiries. He initially resisted, so I pointed out that a CI arrangement would be exculpatory and must be disclosed. Rather than respond to my request at this point, however, Ted offered to reduce the charge to a misdemeanor with a sentence of however much jail time my client already had credit for (not much because John had no trouble qualifying for personal bond). Ted stated that if John didn’t accept the new offer, Ted would “have to think about” my request.

Most felony defendants, innocent or guilty, would be tempted by that offer because they could walk away with no jail or probation time while taking a mere misdemeanor conviction, versus a felony conviction and possible prison time if they’re convicted at trial. I’d certainly be tempted if it were me, which is why I was glad the decision wasn’t mine to make. No matter how innocent you are, trial is risky, particularly if someone has done a decent job of framing you. I had explained that to John before and I repeated the warning when I communicated the new offer but he still refused to plead guilty.

When I notified the prosecutor that his offer had been rejected, I expected him to ask for a reset so that he could think about my original request. Instead, he suddenly announced that he was dismissing the case. When I expressed my surprise at the turnabout, he stated that it’s a “bullshit case.”  I probably should have just accepted my client’s good fortune and moved on–I did do the necessary paperwork, use it to persuade the misdemeanor prosecutor to dismiss as well, and send my client happily on his way–but to tell you the truth, the whole thing made me kind of angry.

Don’t get me wrong–dismissal was the right result for my client and I’m glad this ordeal is over for him–but why is a prosecutor trying to get someone to plead guilty to anything when he knows it’s a “bullshit case?” How does he reconcile that with his primary duty “not to convict, but to see that justice is done?” All I can figure is that he’s rationalized away his duty when it comes to defendants.

Whatever his rationale, the real injustice in this situation lies not with my client but with unknown individuals who have already fallen prey to this scam or who will do so in the future. It was too smooth to be the first time and it’s unlikely to be the last.

More Forced Blood Draws Without a Warrant

According to KVUE News, if the Williamson County District Attorney gets his way, the circumstances under which law enforcement can force a DWI suspect to submit to a blood draw will be vastly increased.

If passed, Senate Bill 261 will allow officers to force blood draws on people who have previously been arrested (not necessarily convicted) of driving while intoxicated with child passenger, intoxication assault, and intoxication manslaughter as well as people with two previous arrests (again, convictions are not necessary) for DWI.

D.A.’s Discovery Policy Conflicts with Rules of Professional Responsibility

A recent post by Houston lawyer Mark Bennett and an unrelated discussion among some of my local colleagues last week got me to thinking about a potential conflict that affects criminal defense attorneys in Travis County. The issue arises if we obtain a copy of the offense report before trial and the client later asks for a copy of it.

As a practical matter, reviewing the offense report is generally necessary in order to negotiate an appropriate pretrial resolution, make informed decisions about whether or not to go to trial, and prepare a defense, which the defendant is supposedly entitled to by law. But in Texas, defense counsel isn’t entitled to obtain a copy of the offense report until trial. Thus, district attorneys can and often do put conditions on pretrial disclosure and there’s a pretty big range in policies from one jurisdiction to another. Some D.A.s are extraordinarily draconian in this area and at least one is exceptionally enlightened.

The Travis County District Attorney’s new policy is somewhere in the middle and requires defense attorneys to sign an agreement that, among other things, prohibits them from giving copies of the offense report to their clients. The rationale seems to be that the reports sometimes contain sensitive information that might jeopardize the safety or privacy of witnesses. The situations where there are real safety or privacy concerns that outweigh the accused’s interest in knowing the evidence against him are relatively rare, in my opinion, but I can certainly understand why the state might want to limit disclosure where, for example, the defendant is known to be dangerous and vindictive, the allegations are very serious, and a witness’s home address is not already known or readily available to him.  Then again, problems like that can probably be fairly easily remedied by redacting the sensitive information, but I digress.

Whether justified on a global level or not, the D.A.’s policy is what it is and criminal defense attorneys who practice in this jurisdiction must sign the agreement if we want to effectively represent our clients. A sticky issue can arise, however, when a client asks for the lawyer’s file and it contains a copy of an offense report that was obtained pursuant to the D.A.’s discovery agreement. In that situation, the D.A.’s non-disclosure requirement directly contradicts the attorney’s duty under the applicable rules of professional responsibility. The client is deemed to be the actual owner of the file and the lawyer is not generally entitled to withhold any part of it (see Ethics Opinion 570 for a nice overview of the applicable rules, caselaw, and very limited exceptions; thanks to Mark Bennett for pointing me to it).

Lawyers that I’ve talked to about this issue have varying opinions about the right way to handle the dilemma. Some say you should refuse to hand over the offense report; others say you should breach the discovery agreement. I don’t think there’s a clearly correct answer–you’re damned if you do and damned if you don’t. But my inquiries made one thing quite clear–my fee agreement needed (and now has) a new provision that acknowledges the D.A.’s discovery policy and waives any conflicting claim that the client might otherwise have to materials obtained under it.