State v. DNA profile

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In these days of DNA, scientific and forensic evidence, it was bound to happen. As this very interesting (and lengthy) opinion from the California Supreme Court details, a “John Doe” warrant issued mere days before the statute of limitations was set to expire, identifying the defendant only by his DNA profile, satisfies the “particularity” requirement of the Fourth Amendment.

The DNA was taken from a crime scene (and victim) in 1994 and after the issuance of the warrant, a cold hit matched the profile to that of the defendant. Only problem is, the DNA taken from the defendant was in violation of then-existing CA law.

The defendant raised several challenges to the warrant: that since the DNA was taken in violation of the law, it was in violation of the 4th Amendment; that this triggered the exclusionary rule; and that the warrant was not specific enough because it was issued in the name of “John Doe”.

You can image the usual responses to such claims. The court relies on the abomination that is Virginia v. Moore to dispense with the first argument: that just because state law prohibits something, doesn’t mean it is a violation of the Fourth Amendment. The second is dealt with by regurgitating the very narrow reading of the exclusionary rule (and the third argument was just plain silly to begin with).

This shouldn’t be a problem anymore for most states, since the statute of limitations for all sex crimes is now one googol years (an actual number). But the case is a curious oddity nonetheless and it is my solemn sworn duty to bring this to your attention.

QED

Saving the next generation

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Where We Live, NPR’s local daily radio show dedicated the entirety of today’s episode to the issue of children with incarcerated parents.

Here‘s a 2007 Sentencing Project report on children with incarcerated parents. These are the highlights:

  • In 2007, 1.7 million minor children had a parent in prison, an 82% increase since 1991.
  • One in 43 American children has a parent in prison, with particularly broad racial/ethnic variation.
  • One in 15 black children and 1 in 42 Latino children has a parent in prison, compared to 1 in 111 white children.
  • In 2007, there were 809,800 parents incarcerated in U.S. state and federal prisons, an increase of 79% since 1991.
  • In 2007, half (52%) of all incarcerated men and women were parents.
  • In 2004, 59% of parents in a state correctional facility and 45% of parents in a federal correctional facility reported never having had a personal visit from their child(ren).
  • Two-thirds of the incarcerated parent population is non-white.
  • From 1991 to 2007, the number of incarcerated mothers increased by 122%, compared to a rise of 76% for incarcerated fathers.

If you want to get involved by mentoring kids with parents in jail, read some details here.

Monday morning jumpstart

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Another week, another jumpstart. Have at it.

Reconfiguring terms

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It really grinds my gears when I hear lay people (read: tv and movie writers, newscasters, media, your mother, my mother) use the term technicality to describe a violation of some Constitutional right. As in: “The judge threw out the case because of a bad search or something”, “The guy kills a cop and he gets off on some technicality?” or “He was so guilty, but his lawyer got him off on some technicality”.

So here’s my proposal. Let’s start replacing real phrases for the meaningless and incendiary “technicality”. For example, a search that violates the 4th Amendment protection against unreasonable searches and seizures shall henceforth be called “police misconduct”.

A conviction that’s reversed because the prosecutor “forgot” to turn over potentially exculpatory information should be called “prosecutorial dishonesty”.

A case that’s dismissed for lack of probable cause should be called “fabrication of evidence” or “prosecutorial bloodlust”.

“The judge threw out the case because of police misconduct” sure has a better, more truthful ring to it.

Any more ideas?

On the intersection of morality, child sex and law

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[THIS IS A BIG WARNING: The site I am about to link to is thought-provoking and unabashedly pornographic. Yes, I said pornographic. Be expected to be treated to pictures of naked women. Lots of them. And body parts. Lots of them. If you are under the age of 18, click here.

But on the flip side, you will be treated to articles on philosophy and morality. And in this particular case, law.

If you are sensitive to pornographic images, I would recommend using "Readability", which strips all images from pages and makes the text larger and more readable. That is how I read this page, despite no antagonism toward pornography. It just is easier to read.

It is undoubtedly, without reservation, NSFW. I will repeat: NSFW.]

Have you installed “Readability“? Why not? Go install it now. I’ll wait.

…

Done? You promise? Okay:

Roman Polanski and the Bounty of Childhood Sex is the article I am linking to here. It uses the case of Roman Polanski (both in its anecdotal and criminal case sense) as a springboard for a discussion and exploration of the immorality of child sex laws. Some excerpts:

So-called child molestation, which is actually just an abusive term for childhood sex is not a crime. The reason is simple. The act can be divided into two parts potentially. One is the sex, the other is physical (or excessive psychological – a vague and dubious concept) coercion. It is true that physical coercion can be criminal especially if it involves inflicting physical pain. However, coercion by itself is indifferent to the age of the victim. Coercing anyone to do anything against their will is at the very least immoral. Doing so at the point of a gun is often criminal (Coercing the perpetrator of a holdup to desist at the point of a gun is not considered criminal, but coercing a soldier into battle at the point of a gun may be considered criminal). However, proponents of so-called child molestation make clear that coercion is irrelevant to the supposed criminality of the act since even consensual sex with children is criminalized.

and:

If coercion and age are irrelevant in the spurious criminalization of childhood sex, that leaves the sex. The reason childhood sex is a criminal act must be the sex. But, if sex were the critical element, if sex were in itself damaging or evil, then all sex should be illegal. Apart from a few hysterics and other illiterates, no one would find this to be an acceptable conclusion. Sex is a pleasurable act and an enjoyable experience that, absent external and irrelevant disapproval, need have no deleterious consequences. This principle is as true for children as it is for adults. There is nothing identifiably specific in the child’s mental make-up that accounts for any special harm caused by this pleasurable experience. Of course, any physical activity runs some risk of physical harm, however small. Sexual activity in particular could result in vaginal or anal tearing, especially in a smaller body. But, if that were an applicable principle, the prohibition of sex should apply to dwarves but not to children above a certain physical stature. Indeed the potential for physical damage is an argument not to ban the activity, but to ensure is safe pursuit. Pee wee football is susceptible to far greater damage than mere fucking. But the potential for damage is no reason to ban the sport but rather to make sure the players wear safety equipment.

also: Continue reading →

Is Bysiewicz eyeing the Gov’s race again?

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The “does the AG have to be a lawyer” circus won’t end. SOTS Bysiewicz has followed through on her promise to seek a formal opinion from the current AG (and next Senator from CT) Blumenthal.

I don’t understand this. No one has challenged her qualifications – legally – yet. One candidate, George Jepsen, has said he isn’t going to ever.

The request for an opinion brings forth some very interesting facts regarding the AG statute:

Bysiewicz wants to know if that section adopted in 1897 is “constitutional,” since it wasn’t until 1970 that the constitution was amended to make the attorney general one of the state’s constitutional officers.

“The Constitution contains no requirement for the office of the Attorney General,” Bysiewicz writes.

Then in 1980 the constitution was amended again to say “Every elector who has attained the age of eighteen years shall be eligible to any office in the state.”

In light of the constitutional provisions Bysiewicz wondered if the statute that talks about active practice is still in effect “or is it superseded by the subsequent constitutional amendments?”

And when push comes to shove Bysiewicz wants to know who will make the determination of whether the requirement of 10 years of active practice has been satisfied.

So why do this now? Why create a problem when there isn’t one?

I think there’s only one answer. She wants to know now, so she can get out quickly if she has to. And so she can then jump back into the race for Governor.

What do you think?

Does the client have a right to discovery?

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A number of changes to the Practice Book went into effect on January 1, 2010 here in CT. Of particular importance to this blog and criminal defense practitioners in the State are the changes to the discovery rules.

The regular discovery section was amended to add the following language:

Without the prior approval of the prosecuting authority or the court, defense counsel and his or her agents shall not provide copies of materials disclosed pursuant to Section 40 -13A to any person except to persons employed by defense counsel in connection with the investigation or defense of the case.

Note the use of the very specific “defense counsel”. Most criminal practice book provisions use the phrase “the defendant” as a substitute for either the defendant himself or his lawyer. But the use of “defense counsel” is particularly notable. The section seeks to exclude the defendant himself from possession copies of police reports, statements, affidavits, etc.

The only way for the defendant himself to get copies is through the permission of the prosecutor or the court. And even then, I suspect (as is the practice for many defense lawyers) they would require that names and addresses be redacted.

The changes to the section were actually agreed upon by a joint task force, comprising prosecutors and defense attorneys. The “compromise” was a much expanded discovery provision, making disclosure of all statements, affidavits and reports mandatory upon written request by the defense. Continue reading →