Category: Criminal Law

 

August, 7 2013 – In an unprecedented agreement between the Department of Justice and the FBI and the National Association of Criminal Defense Lawyers (NACDL) and the Innocence Project, more than 2000 criminal convictions based on microscopic hair analysis will be reviewed.  This historic review has already found 27 death penalty cases in which FBI forensic experts may have provided exaggerated scientific testimony regarding hair analysis.  Forensic DNA has proven that the “matches” declared between a suspect’s hair and hairs found in a crime scene investigation were significantly overstated and, in many cases, flat-out wrong.  DOJ has agreed not to raise procedural objections, such as statute of limitations or appellate and procedural default, in response to petitions of defendants wrongfully convicted based upon exaggerated reports of matches in hair comparisons.  The 2009 National Academy of Sciences Report on forensic science found microscopic hair analysis “highly unreliable.”  The report was also highly critical of bitemark analysis, toolmark and firearm analysis, fingerprint analysis, and other disciplines that rely solely upon the subjective eye of the analyst.

“The government’s willingness to admit error and accept its duty to correct those errors in an extraordinarily large number of cases is truly unprecedented.  It signals a new era in this country that values science and recognizes that truth and justice should triumph over procedural obstacles,” said Peter Neufeld, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law.  “Unfortunately hair analysis is only one of many flawed forensic practices that are still used that pose the threat of infecting criminal trials across the nation.  We need leadership in Washington to ensure scientific rigor and greater oversight over forensics to prevent these miscarriages of justice.”  

It’s unfortunate this “junk” science was allowed into trials as evidence in the first place.  Defense lawyers have been raising these complaints since the 70’s.  However, with the 2009 NAS report, the weight of science has brought the FBI to this change in position.  Credit must be given to the leaders in the Department of Justice and FBI for challenging their previous testimony and for actually pursuing justice in these cases.  However, it must be noted that this would not have happened but for the insistence, persistence, and hard work of criminal defense lawyers, NACDL, and the Innocence Project.

“This review is an example of our judicial system at its best — prosecutors and defense lawyers working together to see that justice is done,” said David Koropp, an attorney working pro bono for the Innocence Project.  “Determining whether erroneous forensic evidence may have been used in criminal cases is vital to maintaining the integrity of our criminal justice system.   The FBI is to be commended for the leadership position it has taken to help ensure that only scientifically valid evidence is used to identify and convict criminal defendants.”

 

 

 

August 7, 2013 – No one likes drunk boaters.  On top of sometimes being very obnoxious, they are always a threat to the pleasure and safety of other boaters and their guests.  Too often we’ve heard of tragic accidents with serious injuries and fatalities cause by someone too intoxicated to be operating some fast-moving, two-ton watercraft.With all the people who own and operate boats in our local community, there is some very important news.  The State Legislature revisited the State’s Boating Under the Influence (BUI) law, RCW 79A.60.040, and made some significant changes all boaters need to be aware of.  The changes go into effect on July 28^th.  With lots of hot, sunny, good-boating weather to come, it is smart to be aware of these changes. 

Stiffer Consequences & New Marijuana Provision

It has previously been a misdemeanor if you are convicted of BUI, with a maximum penalty of up to 90 days in jail and a $1000 fine.  The legislature increased the severity of the crime to a gross misdemeanor, just like a DUI, with a maximum penalty of 364 days in jail and a $5000 FINE.

BUI can be committed by operating a boat while your breath or blood alcohol content is .08 or higher.  Like a DUI with marijuana, BUI can be committed by operating a boat while the THC concentration of 5.0 or higher. Also like a DUI, BUI can be committed if one is under the influence of, or affected by, intoxicating liquor, marijuana, or any other drug, or any combination thereof.  It does not matter if the operator has a prescription for the drug they have taken.

Implied Consent

The new law also adds an “implied consent” provision.  That means that if you operate a boat in Washington waters, you are giving your consent for law enforcement to obtain a sample of your breath or blood if they have reason to believe you may be operating a boat under the influence.  You have the right to refuse such a test, but not without a price.  The penalty for a refusal is a $1000 fine. Furthermore, your refusal may be used against you in a criminal trial as evidence of guilt.

Be Careful Out There

Drinking alcohol while a passenger in a boat is still allowed.  Open containers of alcohol are still allowed in boats (not cars).  But the person operating the boat must stay in control of his or her ability to operate the boat.  And they must stay within the legal limits of consumption.  I would advise that it probably won’t take much to raise the suspicion of law enforcement and bring on the request of a breath or blood test.  I would also advise that the safest way to enjoy an afternoon of boating is to make sure you have a responsible, competent, sober designated boat operator.  Although the temptation to join in the fun may be strong, a BUI, or even worse, an accident, will take that away, and potentially a lot more under the new law. My final bit of free legal advice – do NOT drink and operate a boat.

 

MARK W. PROTHERO