Archive for the ‘Forensic Science’ Category

DNA Expungement in Washington State

When people say “expungement” in the legal system, they are usually talking about getting a criminal conviction removed from a person’s record. But there is another type of “expungement,” and that is forcing law enforcement agencies to remove from their database any DNA they have collected from you. It usually works like this: 1) The police arrest you and you consent to giving them a DNA sample, or  2) The police get a search warrant from a judge to take a DNA sample from you. Under a new law in Washington, if you are found “not guilty” the police can be forced to remove your DNA from their system. The new law provides:

A person may submit an application to the Washington state patrol to have his or her DNA reference sample data expunged from the WSP’s DNA identification system in cases where: (i) The person’s DNA reference sample was collected and entered into the system and (ii) the charges against the person were dismissed with prejudice or the person was found not guilty.

The law also refers to the authority of a court to order “the destruction of DNA reference samples contributed by a defendant who was charged and acquitted.”  So last month, when I represented a man who was found not guilty by a jury of his peers, I filed a motion with the court asking for the court to order the WSP and the EWU police department to destroy his DNA samples.  A copy of the motion (with the names redacted) can be found here.  Yesterday, I found out the motion was granted and I will next serve the police agencies with a copy of the court’s order.

The right of DNA expungement is important as an increasing number of police agencies across the country move to collect more and more DNA samples from suspects, witnesses and even victims. A new law was proposed by this legislative session in Washington state that would actually require the police to warn suspects that they have a right to have their DNA expunged if they are ultimately found to be “not guilty.”  The  proposed law provided:

An entity collecting a biological sample from an adult charged with a criminal offense or lawfully arrested for a criminal offense when there has been a judicial determination of probable cause, as required in this section, must provide the person with a notice of the rights to expungement…

However, as I mentioned, this law (HB 1138) was not enacted into law because it did not receive enough support. Maybe this will be the subject of future legislation.

Investigations Continue on Brian Hirzel / Scott Creach Shooting

The investigations into the shooting death of Scott Creach by Spokane Sheriff’s Deputy Brian Hirzel has been getting more interesting. As you recall Deputy Brian Hirzel shot the Spokane Valley pastor and business owner on August 25th, after Hirzel arrived at Creach’s business to check on reports of a prowler. Deputy Hirzel was in uniform but in an unmarked car when Scott Creach confronted him. The deputy reported that he directed Creach to drop the gun, and Creach put the gun in his waistband, but still approached him. The deputy reports that he struck Creach with a baton when the man refused to get down. The family contests this version of events.

Since the shooting, more has come out about the officer in questions. Apparently a private investigator for the Creach family and Spokesman-Review reporters are interviewing the same people in this case. In an interesting story in the Spokesman-Review, reporter Thomas Clouse reports that Hirzel had been involved in to prior use-of-force incidents when he was an officer in Cathedral City, California.  When employed with Cathedral City, Hirzel was cleared for a fatal application of a chokehold. But in another incident, the Cathedral City had to shell out $10,000 to settle a suit in which Hirzel shot someone’s dog.  Dog shootings by police aren’t so rare, but the circumstances of this instance was just plain odd. Apparently Hirzel, responded to the scene where a man had had a heart attack and he entered the home.  While the wife performed CPR on her husband, Hirzel took issue with the couple’s golden retriever and shot it.  The shooting occurred indoors apparently spattering blood all over the walls and the floor.   An incident like this really makes you wonder about that deputy Brian Hirzel.

On the other hand though, I can’t say that I agree with every criticism that has been made of Hirzel.  People have questioned whether or not Hirzel really did try to stop Scott Creach with his baton prior to using deadly force.  Skeptics point to the fact that the deceased never had any bruising that would corroborate this claim.  Fair enough.  But in one news story, it was the Creach family that apparently made the point that “…no fibers from Creach’s pants were found on Hirzel’s baton and no crush marks were found in Creach’s pants to indicate any type of baton strike.”   I sure have never heard of any science that would support the notion that the application of a baton against a clothed person would leave cloth fibers on the baton or “crush marks” on the clothes.   In forensic science there is a thing called “Locard’s Exchange Principle” supporting the idea that with contact between two items there will be an evidentiary exchange.  But I really think that would be pretty theoretical when it comes to detecting fibers on a baton.  The baton surface just isn’t  rough enough to pull individual fibers from fabric.  I can maybe see this happening with a roughly cut two-by-four, but I just haven’t seen this come up very often.  Additionally, I have never heard of any science that would support the idea that batons or any other blunt instrument would leave “crush marks” on fabric.  If anyone has any thoughts on that subject I sure would want to learn more about that.

What do you think about this incident?  Was it appropriate for Spokane County to hire Brian Hirzel after his history of using force in California?  Do you predict that any criminal charges will come of this incident?

Studying Forensic Science in College

I had an intern from one of the local high schools work at my office last year. The intern, Kyle Nicholson, seemed pretty interested in forensic science, but I started him off kind of slow. The first assignment was to accompany me at a jury trial on a trespass charge. Slowly he worked up to more serious matters that involved more forensic science. Kyle accompanied me out of town on a first degree murder charge I was hired to defend. The intern joined me about halfway through the trial, and I put him up in a room next to me in an inexpensive motel near the courthouse. As we ate some breakfast cereal, we looked at crime lab reports, and I thought to myself that this had to be the oddest high school internship ever.
Kyle Nicholson has since graduated from high school and is now in college working toward a degree in forensic science at Chaminade University in Hawaii. After I heard from him the other day, I checked out the website for the school’s forensic science program. The director of the forensic science department is Dr M. Lee Goff, who is a leading forensic expert, and also serves as a consultant to the T.V. show C.S.I. Check out this video explaining the forensic science program at Chaminade:

In my practice as a criminal defense lawyer, I come across most of those scientific disciplines that Dr. Goff describes. Dr. Goff is a leading expert on forensic entomology. Forensic entomology is the study of insects, particularly those insect that inhabit human remains, and the insects can tell us about information about the time, location, and manner of death. It is a pretty narrow field, and there are only fifteen forensic entomologists certified by the American Board of Forensic Entomology. One of the issues that can come up with forensic entomology is the fact that insects can walk through blood and track the blood to areas near the crime scene. This can interfere with the interpretation of blood spatter. One of the issues that I encountered in one of the murder cases that I have done is how insect bites can be misinterpreted by police detectives.  Flies and maggots are attracted to locations of the human body where blood is exposed, and postmortem insect activity can cause skin lesions that can resemble powder stippling, and thus lead in investigator to believe that a gun shot was fired at close range.

See an earlier post by me on The Study of Forensic Science in High School.

Criminal Defense Lawyers Challenge "Green Tongue" Phenomenon in Drug DUI Cases

In the last ten years, police in Washington State have paid a lot more attention to the problem of drugged drivers.  A rookie cop can detect a driver who has drank too much alcohol, but it takes a little training and experience to determine if a driver has been using controlled substances such as cocaine, methamphetamine, marijuana or prescription pills.   After completing certain training, an officer can become a Drug Recognition Expert or “DRE”.   We have many such DRE’s here in Washington, especially in Spokane.  The problem is that people are catching on that the so-called drug recognition “experts” really are basing their opinions on many things we do not really recognize as science.  Take for example, the green tongue phenomenon.  The National Highway Traffic Safety Administration warns of the following characteristics of a marijuana DUI: “… characteristic indicators may include odor of marijuana in car or on subject’s breath, marijuana debris in mouth, green coating of tongue, bloodshot eyes, body and eyelid tremors, relaxed inhibitions, incomplete thought process, and poor performance on field sobriety tests.”  Criminal defense lawyers are not the only ones questioning the validity of this “green tongue” thing.  The Washington Court of Appeals also questioned whether a green tongue establishes probable cause for anything.  The court agreed with the defense lawyer that no probable cause existed, explaining:

Trooper Lane contends that a green tongue is indicative of recent marijuana use. Even assuming he is correct, the absence of any other indicators of recent marijuana usage, combined with the many innocuous ways to get a green tongue, indicate a lack of reasonable suspicion.  Although we assume the officer’s assertion to be true for purposes of this opinion, we are nevertheless skeptical as to its accuracy. We find no case stating that recent marijuana usage leads to a green tongue. The only case we could find that remotely supports such a proposition is State v. Baity, 140 Wn.2d 1, 991 P.2d 1151 (2000), wherein the opinion’s fact section mentions that the defendant, who had admitted to recent marijuana usage, also had a green tongue. Beyond this observation, however, the court never analyzes whether the green tongue and the recent marijuana usage are linked. And the officer who made the observation does not assert a connection between the two.

To you non-lawyers out there, that is the Court of Appeals basically politely telling the Washington State Patrol DRE’s that they are full of baloney.  These “experts” are often very well-trained and seemingly professional, and can be very convincing to jurors.  I defended a drug DUI one time where a DRE from Okanogan County claimed he had probable cause to believe that the driver was under the influence of marijuana.  The DRE wrote in his report:

“He had raised taste buds on the back of his tongue with a green coating on his tongue.  His lips were burnt and crusty on top and bottom lips.  … His thumb and index fingers of both hands were discolored.  The discoloration on his fingers and lips was consistent with holding hot smoking pipes.”

This seemed a little fishy to me, and I eagerly awaited the toxicological report on the blood test.  The results indicated that there was absolutely no marijuana (even in trace amounts) in this driver’s blood.  Instead there was methadone found in the drivers blood, just as it was found in his car.

Is there any system of accountability for the DRE’s out there?  Is anyone keeping track of all the times the DRE’s got it wrong?   The Supreme Court in Utah is also catching on.  In a court opinion State v. Hechtle, they explained:

We are troubled by the trooper’s reliance on the appearance of Hechtle’s tongue as dispositive proof of marijuana use. Even if we were persuaded to accept the State’s position that the condition of Hechtle’s eyes and tongue are presumptively suggestive of marijuana use, nothing in the record indicates either how long these conditions are sustained or how long measurable quantities of marijuana remains in the system as required by the statute.

So, I guess in some sense, the system is working – courts are catching on.  But on the other hand, what other aspects of DRE “science” are slipping past us all?

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Photo of Steve Graham Steve Graham is a criminal defense lawyer, and he splits his time between Spokane and Seattle, Washington. Visit his website by clicking: www.grahamdefense.com
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