Follow us:

Blog Page

The Golden State Killer Investigation Raises Genetic Privacy Concerns In the Criminal Law Context

Posted By admin 2018-04-29 00:52:43

New technologies are radically advancing our freedoms, but they are also enabling unparalleled invasions of privacy. This week’s arrest of the Golden State Killer suspect, Joseph DeAngelo, has rightfully set off alarms among some scientists and ethicists worried that consumer DNA may be widely accessed by law enforcement. Detectives in California used a public genealogy database to identify the suspect, raising serious concerns about genetic privacy. As a criminal defense attorney practicing in Los Angeles, I am especially concerned about how law enforcement uses consumer DNA to bypass Fourth Amendment protections.

Investigators retained DNA evidence from the Golden State Killer’s crime scenes, but they were not able to match it to any of the convicts’ and arrestees’ DNA profiles stored in the FBI’s Combined DNA Index System. As a workaround, police decided to take advantage of the fact the millions of Americans have had their genetic information tested by various commercial companies, often as part of their personal genealogical research.

The police reportedly drew on the open-source GEDmatch service, which does not test DNA but allows users searching for relatives to them to upload the results of such tests from other companies. Apparently, a relative of DeAngelo had submitted test results to GEDmatch. This familial genetic link led the police to suspect DeAngelo. The police directly connected DeAngelo to the murders and rapes by matching old crime scene DNA to his obtained from some items he had recently discarded in public.

This is not the first case where ancestry DNA testing has been used to identify a suspect. Another case illustrates how the use of such DNA evidence can lead to false accusations. In 2015, after DNA evidence exonerated an innocent suspect in a 1998 murder, police in Idaho Falls combined records for close matches to DNA at the crime scene, landing on a man named Michael Usry who matched 34 of 35 genetic markers on the Y-chromosome that belonged to the killer. Police wound up arresting Usry’s son, whose name was only cleared after 33 days when another DNA test found to not match his DNA. The privacy repercussions, including false accusations and even wrongful convictions, are troubling.

Such methods of criminal investigation are bound to only become more prevalent as the sizes of companies’ DNA databases grow. Some laws protect against abuses of genetic privacy, but none of those prevent law enforcement from combing through public DNA databases. Many courts have ruled, citing cases involving photographs and fingerprints, that we do not have a reasonable expectation of privacy under the Fourth Amendment in DNA that we leave in public.

Still, the case brings forefront several important issues in genetic privacy. As Tiffany Li, a tech lawyer and resident fellow at the Yale Information Society Project, tweeted in response to the Golden State Killer news, “Reminder: When you give your DNA data to companies like or 23andMe, you give up not only your own genetic privacy, but that of your entire family.” And while law enforcement may not be able to get its hands on your Ancestry data easily, for example, certain types of insurers could, as could hackers. While some members of the public have expressed that they are fine with giving up their family DNA data to catch a serial killer, this rationale has a slippery slope effect, and can justify almost any invasion of privacy, including facial recognition and iPhone backdoors.

Ultimately, police use of non-criminal genetics databases illustrates the need for standards for genealogical searches in relation to crimes. In the Idaho Falls case, for example, if investigators had used a DNA test that looked at a smaller number of genetic markers, which some crime labs do, Usry might have wound up matching the DNA even though he was innocent. Guidelines for when police may turn to genealogical searches and the quality of DNA evidence they use could help protect innocent people from false accusations and even wrongful convictions.

Learn More

Field Drug Test Results Found to be Inadmissible in California

Posted By admin 2018-04-29 00:50:27

In California drug cases, the prosecution will often offer chemical reagent test results as ultimate proof of the existence of a controlled substance for the purpose of obtaining an indictment in a Grand Jury proceeding. Until this week, there has been no published California case that has addressed a scientific challenge to the validity of color drug tests. As a criminal defense attorney who specializes in state and federal drug crimes, I understand that police officers often overstate the reliability of color drug test results in Grand Jury proceedings to obtain an indictment. This type of prejudice to a defendant’s due process rights to a fair Grand Jury probable cause determination is difficult to remedy. As a result, indictments are commonly filed in California drug cases where the scientific evidence showing that a substance is an illegal drug is shaky, and certainly insufficient to prove guilt beyond a reasonable doubt.

This week, the Supreme Court of California ruled in People v. Chacon that a Brady violation occurred when the government did not present known information about the unreliability of the Narcotics Identification Kit (NIK), a commonly used color drug test, to the Grand Jury. Specifically, the government failed to present information that NIK kits have in many instances produced false positive results for drugs to the Grand Jury. One officer in that proceeding testified, wrongly, that the NIK test is “100% accurate.” Broadly speaking, the Chacon case discusses the unreliability of the NIK, which police routinely use in field tests to determine if substances are drugs. Although Chacon is a state court decision, federal defense lawyers should apply the findings in this decision to their federal drug cases when a color drug test is used.

A scientifically reliable analytical testing technique should ideally have a high probability of a “true” result, and minimize the probability of a false positive. The Court in Chacon found that the NIK field color tests are not specific because they fail to discriminate between controlled substances and other compounds. As with all color testing that are used for drug identification, it is not uncommon for there to be a false positive. Limitations with color tests include: (1) they are not specific; (2) the possibility of using too much sample, thereby overwhelming the chemical reagent; and (3) contribution to the color change from other components within he sample. For instance, opium, black tar heroin, and samples containing dyes can produce problematic color test results.

The court, in compliance with its gatekeeping role under Sargon, is required to exclude invalid and unreliable expert opinion. In short, the gatekeeper’s role is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field. The Court in Chacon found that the NIK colorimetric test or any similar color test does not meet the admissibility requirements of Sargon.

Chacon is a very helpful tool for the defense. State and federal defense lawyers should be extra diligent to pursue discovery regarding the reliability of color drug tests used in the field. Those results can help form the basis of suppression motions, including to challenge warrant applications that rely on those field test results to establish probable cause.

Learn More

U.S. Supreme Court Finds that a Crime-based Removal Provision is Unconstitutionally Vague

Posted By admin 2018-04-23 01:30:28

In California, defense lawyers have a legal and ethical duty to advise clients on their criminal cases’ immigration consequences. This duty is extremely important because a criminal conviction can result in deportation, even for an immigrant who has lived and worked legally in the United States for decades. In light of the Trump administration’s emphasis on the removal of “criminal aliens,” we are seeing an increase in litigation of criminal removal cases, and gaining clarity in this complex area of the law.

As a criminal defense lawyer working in Los Angeles, I represent many clients whose immigration status is threatened by their criminal charges. This is why I am passionate about following developments in criminal-removal cases, and am particularly excited about a U.S. Supreme Court case decided this week called Sessions v. Dimaya. The Dimaya case involved a constitutional challenge to a criminal-removal provision in the immigration laws, which historically have been almost wholly immune from judicial review.

The defendant, James Dimaya, challenged the constitutionality of a provision in the Immigration and Nationality Act (INA) allowing for deportation for aggravated felonies involving “crimes of violence.” An immigrant convicted of an “aggravated felony” under 8 U.S.C. §1101(a)(43) is subject to mandatory removal and is ineligible for most forms of relief from removal. The definition of “aggravated felony” incorporates by reference 18 U.S.C. §16(b). Section 16(b) defines a “crime of violence” to encompass “any … offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” What constitutes a felony involving a “crime of violence” is a murky legal issue that courts have interpreted differently. The result is an unpredictable and counterintuitive body of law.

For example, Mr. Dimaya,had two residential burglary convictions, neither of which involved violence. He was charged under California statute, which defines residential burglary so broadly that it could cover dishonest door-to-door salespeople.

Is a burglary a “crime of violence” when it need not entail any actual violence? Immigration judges held that it was, and that Dimaya’s convictions fell within the “residual clause” of the definition of a violent crime. This allowed Mr. Dimaya’s deportation to move forward. Mr. Dimaya appealed, challenging the constitutionality of this “residual clause.” He argued that the provision is too vague to comport with the Due Process Clause, which guarantees that ordinary people have fair notice of the conduct a law prohibits. The 9th U.S. Circuit Court of Appeals agreed, holding that the residual clause violated due process.

The U.S. Supreme Court affirmed the 9th Circuit’s ruling that Section 16(b) is unconstitutionally vague. The Court noted that to determine whether a person’s conduct falls within the ambit of Section 16(b), “courts use a distinctive form of what we have called the categorical approach.” Rather than assessing whether the particular facts of someone’s conduct pose the substantial risk required under the statute, courts consider the overall nature of the offense, and ask “whether ‘the ordinary case’ of an offense poses the requisite risk.” Defining the “ordinary case” under the “crime of violence” provision poses vagueness and due process problems, including unpredictability and arbitrariness. Mr. Dimaya’s case is illustrative. It defies logic that Mr. Dimaya could be deported for committing a so-called “crime of violence” when the crimes he was convicted of involved no violence.

The Court’s finding that this residual clause deprives immigrants of fair notice as to what qualifies as a “crime of violence” will create more uniform, predicable law. In reaching its decision, the Court pointed to judicial disagreement over what crimes count: Some federal appeals courts have found that car burglary, statutory rape, evading arrest, residential trespass, unauthorized use of a vehicle, stalking, and firearms possessions are crimes of violence. Other appeals courts have reached opposite conclusions. This made it difficult to provide concrete legal advice to clients on how certain outcomes to their criminal cases could affect their immigration status.

Sessions v. Dimaya is beneficial to non-United States citizens who are facing felony charges in the United States for non-violent acts. Such individuals should seek representation from a criminal lawyer who is well-versed in the recent changes to criminal removal case law.

Learn More

Trump Signs Anti-Sex Trafficking Law that Endangers Free Speech and Safe Sex

Posted By admin 2018-04-23 01:27:16

President Trump recently signed the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA), a law that aims to fight sex trafficking by reducing legal protections for online platforms. FOSTA passed the Senate in March, and it has been endorsed by the Internet Association (representing major companies like Facebook and Google), and a handful of celebrates like Amy Schumer.

As a criminal defense lawyer in Los Angeles who specializes in sex crimes, I am skeptical that this new law will seriously limit online platforms for sex trafficking. I am also troubled by FOSTA’s adverse consequences for online free speech and consensual sex work.

FOSTA carves out a new exception to Section 230 of the Communication Decency Act, which shields website operators from liability for user-generated content. Section 230 defines Internet culture as we know it: It allows websites to offer platforms for critical and controversial speech without the threat of being sued or charged criminally. FOSTA undoes these protections for online site providers. It stipulates that Section 230 does not apply to civil and criminal charges of sex trafficking, or to conduct that “promotes or facilitates prostitution.” The rule applies retroactively to sites that violate it.

FOSTA is clearly aimed at sites like, which are hubs for illegal sex work. The law’s reach is much broader, and will also likely deter many site operators from allowing users to post any sexual material, especially site operators who lack the legal and technical resources of huge web platforms. For instance, Craigslist removed its personals section to avoid a lawsuit before the bill was passed.

It is unclear to what extent, if any, FOSTA will strengthen existing anti-prostitution and anti-trafficking law. The Justice Department shut down Backpage and filed criminal charges against its founders last week, before FOSTA was signed. The owner of, another sex work site, was sentenced to prison for promoting prostitution last year. These recent prosecutions indicate that FOSTA is not necessary for the government to successfully target the most notorious websites facilitating illegal sex work.

I do not think Congress properly weighed the supposed benefits of FOSTA against the law’s likely adverse consequences for free speech, consensual sex work, and even victims of the illegal sex trade.

The array of online services protected by Section 230, and thus hurt by FOSTA, is vast. It includes review sites, online marketplaces, discussion boards, and even news publications with comment sections. By attempting to add an additional tool to hold liable the tiny minority of those platforms whose users who facilitate illegal sex work, FOSTA does real harm to the overwhelming majority, who will inevitably be subject to censorship. Websites run by nonprofits or community groups, which have limited resources to restrict user content, would face the most risk. It is little wonder why the Electronic Frontier Foundation has called FOSTA “the most significant rollback to date of the protections for online speech in Section 230.”

Perversely, some of the discussions most likely to be censored could be those by and about victims of illegal sex trafficking. Moreover, FOSTA does not address the demand for sex trafficking, and could push sex traffickers onto the Dark Web to continue online solicitation. In these ways, FOSTA could further marginalize vulnerable workers in the illegal sex trafficking industry.
FOSTA also problematically conflates stopping sex trafficking with stopping consensual sex work, making it difficult for sex workers to screen clients or build communities through online services.

My experience working on sex crimes cases has shown me that tough laws on sex crimes do not weaken the illegal sex trafficking industry. Instead, they often further marginalize sex workers and make the industry even less safe for participants. This is not smart policy, and certainly not worth the high cost FOSTA places on online free speech.

Learn More

California Supreme Court Upholds a Troubling Arrestee DNA Collection Law

Posted By admin 2018-04-23 01:24:28

As a criminal defense attorney who practices in Los Angeles, I have successfully defended countless arrestees to stop criminal charges from being laid and, when charges exist, to secure an acquittal on all counts. The process to remove these innocent people’s DNA from California’s database is arduous and slow due to complex state rules for expungement. The California Supreme Court recently upheld the state law mandating DNA collection from arrestees. In doing so, the Court failed to properly consider the significant privacy costs this law has, especially for indigents and racial minorities.

People v. Buza involved a San Francisco man who challenged his conviction for refusing to provide a DNA sample after he was arrested. California law permits police to collect DNA from anyone arrested on suspicion of a felony. No procedural safeguards, such as a warrant or a judicial finding that there was sufficient cause for the arrest, exist. California stores arrestees’ DNA samples indefinitely, and allows DNA profiles to be searched continuously by local, state, and federal law enforcement agencies.

A lower court held that this law violates the privacy and search and seizure protections guaranteed under the California constitution. Like the U.S. Supreme Court’s 2013 opinion in Maryland v. King, the majority of the California Supreme Court in Buza accepted the government’s argument that a DNA sample is no different from a fingerprint and that the government’s interest in “identifying” an arrestee outweighs the arrestee’s right to privacy. The California Supreme Court’s decision allows the troubling DNA collection law to stand.

The California constitution enshrines the right to privacy, unlike the U.S. constitution. The Court’s reasons should have fleshed out how the unique constitutional status of the right to privacy in California impacts collection of arrestees’ DNA, rather than simply adopting the U.S. Supreme Court’s line of reasoning in King.

In my view, the California constitution bars collecting arrestees’ DNA. The constitutional right to privacy includes protecting our rights to privacy of our personal information, as well as our right to self-determination over our bodies. The majority opinion in Buza focuses on the somewhat minimal impact a cheek swab to obtain DNA has on bodily privacy, which misses the point. The state’s retention, processing, and ability to continually search individuals’ DNA samples is an incredibly serious invasion of an arrestee’s privacy. This is because, as Justice Cuellar wrote in his dissenting opinion:

A DNA sample stored by the state contains an arrestee’s entire genetic code – information that has the capacity to reveal the individual’s race, biological sex, ethnic background, familial relationships, behavioral characteristics, health status, genetic diseases, pre-disposition to certain traits, and even the propensity to engage in violent or criminal behavior.

In Buza, the defendant pleaded guilty to committing arson. The majority emphasized that its ruling is narrow and limited to defendants whose arrests were supported by probable cause. The Court wrote that someone else arrested in the future absent probable cause could have a valid as-applied challenge to the adequacy of the DNA Act’s expungement procedures, in addition to other remedies for unlawful arrest. Unfortunately, many innocent arrestees in California are indigent and cannot afford an attorney to help them apply to remove their DNA from the state database. The Court’s holding problematically ignores that most arrestees lack the resources and legal knowledge to mount such challenges, so their DNA samples will remain in the state system indefinitely.

DNA collection severely undermines people’s right to privacy on a massive scale. The state law authorizing DNA collection impacts tens of thousands of innocent Californians each year-nearly a third of 200,000-plus people arrested each year are never charged with or convicted of a felony, according to state records.

The privacy costs of a state DNA database that is designed to hold innocent people’s DNA profiles especially troubling for racial minorities. Felony arrests of African Americans disproportionately result in no charges or dropped charges, which means that innocent African Americans are disproportionately represented among the thousands of DNA profiles that the state has no legal basis for retaining. In my view, the law’s massive impact on privacy should have proved fatal under the California constitution.

Lawmakers should respond by reforming arrestee DNA collection law to at least provide for mandatory expungement in innocent cases.

Learn More