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New Ninth Circuit Case Smartly Rules that Expert Profiling is Insufficient to Prove Conspiracy

Posted By admin 2018-05-14 22:15:20

As a drug crimes specialist at both the state and federal levels, I have taken issue with a trend in recent years where trial courts have permitted prosecutors to offer a police officer to provide “expert” evidence on drug courier profiles. Drug courier profile testimony is an unverified list of general behavior patterns ostensibly engaged in by typical drug traffickers. Courts have continuously held that this type of expert opinion is helpful to the jury because it is based on the observation of seemingly innocent conduct, which only a trained individual would be able to distinguish as being indicative of criminal activity. However, I view such profiling evidence as prone to discrimination and racism, and certainly incapable on its own of proving the ultimate issue of guilt. Thankfully, the Ninth Circuit agreed with this position in a new landmark ruling in the Espinoza-Valdez decision.

In my view, drug courier profile testimony is inherently prejudicial because of the potential it has for including innocent citizens as profiled drug couriers and because simply matching a defendant to a drug profile may unfairly suggest to the jury that otherwise innocuous conduct or events demonstrate criminal activity. A drug expert’s testimony cannot substitute for witnesses who actually observed or participated in the illegal activity. Accordingly, I have argued in my cases that the unfair prejudicial effect of this kind of evidence substantially outweighs any probative value it might have, and must not be admitted at trial.

The Ninth Circuit’s new ruling in Espinoza-Valdez will help to stem the ability of prosecutors to rely exclusively on “expert” profiling evidence to prove the ultimate issue in drug cases. Espinoza-Valdez is scout case where the Ninth Circuit reversed convictions of conspiracy to import and conspiracy to distribute marijuana for insufficiency of evidence. In that case, the government raided a mountaintop, and caught the defendant. He had a radio, batteries, provisions, and other evidence of drug trafficking. The defendant had been apprehended months previously backpacking. What the government lacked was evidence of with whom he conspired, the object of the conspiracy, any agreement, or evidence of what had occurred with others. The government used solely expert testimony to explain the structure of the trafficking, role, and possible amounts.

The Ninth Circuit reasoned that while it was probable that the defendant was a scout, more was needed than an “expert profiling” to find him guilty of conspiracy beyond a reasonable doubt. Accordingly, the government may no longer rely on expert testimony of drug courier profiles alone to establish guilt.

The Ninth Circuit’s reversal for insufficiency of evidence was based on reasoning that the risk of profiles are too great, especially when the actual evidence of an agreement for a conspiracy was nonexistent. The ruling in Espinoza-Valdez acknowledges that jury members are too often presented with the testimony of a case agent whose opinion entails conclusions on ultimate issues, thereby leaving them with no real fact to find due to the expert’s credibility. See United States v. Dukagjini, 326 F.3d 45, 53 (2d Cir. 2002) (noting that a case agent acting as expert has “unmerited credibility” in the eyes of jurors).

This ruling will give defense counsel a powerful tool to object when officers are introduced as experts simply to repeat the testimony of a fact witness and place the government’s seal on that fact witness’s testimony. Federal lawyers, as well as state lawyers who focus on drug crimes, should keep this valuable new case in their pockets when trying to exclude expert evidence from police officers.

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The Ninth Circuit Fails to Remedy Serious Brady and Giglio violations

Posted By admin 2018-05-02 17:22:22

The Ninth Circuit in the recent Garrison decision handed down derisory curative instructions for serious and repeated Brady and Giglio violations. There was no outrage expressed or even demand for training or reform. The panel affirmed a conviction for conspiracy to distribute controlled substances. As a lawyer who specializes in federal drug cases, I have fought hard to remedy Brady and Giglio violations, and I am troubled that the Garrison decision could drain the defense bar of litigation tools to protect important due process rights for our clients in the future.

The appellant Garrison was a physician’s assistant. His clinic used patient recruiters to bring in homeless people to prescribe OxyContin, and the clinic then relieved patients of the pills and sold the OxyContin illegally. Much of the Garrison decision decried the dangers of opioids and lectured on the responsibilities of medical professionals rather than narrowing in on the responsibilities of our government to follow due process standards, which was the subject of this appeal.

The Brady and Giglio violations in this case were serious. Garrison presented the perfect factual matrix for the panel to reprimand government due process violations. Before and during trial, the government repeatedly failed to timely disclose information to the defense, as was required by law. For example, two government cooperators helped a third witness fabricate a false medical report and submit it to a probation officer and a judge. Though the government knew, it did not disclose notes of this conduct to the defense.

In addition, a cooperating co-defendant who was given a special deal that allowed her to continue to work in the medical field was not disclosed to the defense (or court) even after the cooperator testified in direct. It is rare that Brady and Giglio violations are so clear-cut because often the secret nature of such violations prevents the defense from discovering them and litigating.

The panel agreed with Garrison that there is no dispute that the government failed to comply with Brady and Giglio requirements. However, the panel found that the trial court’s jury instruction that the government had disclosed evidence late and that the jury could draw adverse inferences from that late disclosure remedied these violations.

This ruling is disturbingly toothless, and the panel failed to take a nuanced view on whether such jury instructions were sufficient. The district court did not provide a fulsome explanation of the due process rights at stake. Merely telling a jury that it can find a defendant–who it just heard overwhelming inculpatory evidence about, and for a serious crime that is notorious in the news–not guilty due to late disclosure misses the point. Framed this way, late disclosure appears trivial, like bad housekeeping rather than bad faith law enforcement. When fundamental due process rights are at stake, juries should be shown the big picture–the importance due process rights play in protecting the integrity of our criminal justice system. The panel’s decision in Garrison similarly lacked this critical perspective.

The Garrison decision seems to tacitly condone wholesale government Brady and Giglio violations so long as the evidence gathered supports a conviction. This, of course, will only strengthen a culture of impunity felt by some prosecutors, which the Ninth Circuit warned against only five years ago in the Olsen decision, where it concluded that the “epidemic of Brady violations” was something that “only judges can put a stop to.”

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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 Ancestry.com 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 Ancestry.com 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.

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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.

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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.

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