The Explosion of Cell Phone Evidence

Two recent cases in the news confirms the role that cell phone evidence is playing in cases around the country. First , Tom Brady destroyed his cellphone in March of this year right after the folks investigating asked for the cell phone. Mr.Brady claimed it was his routine practice to destroy his old cell phone even though two of his old phones were still around.It appears there were a high amount of texts between Mr.Brady and equipment manager John Jastremski days after deflategate was discovered. Mr.Brady was lucky it was just a NFL investigation. Under Tennessee criminal law. Mr. Brady would be facing a felony tampering with evidence charge. The second case is an opinion for the 6th Circuit Court of the U.S. Court of Appeals. a man inadvertently  pocket dialed a person. The court held there was no expectation of privacy during an accidental cell phone call.

Folks use cell phones for a variety of purposes. texts messages come up in all types of cases from drug cases to domestic violence cases. If you put incriminating evidence on your cell phone , expect the police to get a search warrant for your phone.

Here is some tips;

  • Don't store anything on your phone you would not want your mother to see.
  • Password protect your phone.
  • Don't text message threats of violence.
  • Just because you delete the text , it is still there.

One last thing , just because Tom Brady destroyed his phone does not mean the evidence is gone. The chips might still be around. I think I am going back to a rotary phone.

My Day at the Rocky Mountain Laboratory

I spend last week at a continuing legal education conference in Ft .Collins , Colorado. The conference was the brainchild of Wisconsin DUI lawyer Andrew Mishlove and sponsored by the National College of DUI Defense. The conference had two components . First , it taught some basic science skills on blood alcohol testing. Secondly , it taught trial skills on how to communicate the science during trial. During the training , I had the opportunity to visit the Rocky Mountain laboratory . The Rocky Mountain Laboratory is a working forensic laboratory in Ft. Collins. I thought I would share my observations from my visit.

The tour was broken down into five stages with instructors at each stage to explain what was going into each critical step in analyzing a blood alcohol sample.

  • Receiving the Blood Alcohol Sample.

The first step in the forensic toxicology lab is to properly document the sample when it arrives at the lab. A blood alcohol sample can be dropped off at the lab or mailed into the lab. The receiving clerk takes in the sample. The clerk must create a paper trail to maintain the chain of custody, assign the blood sample a unique lab number and takes steps to make sure the sample belongs to the right person. At the Rocky Mountain Lab , the receiving clerk makes a visual inspection of the sample to make sure the seal was properly in place and to ascertain if the blood had clotted.

  • Pipetting  

The next step is the blood must be pi petted into a vial for testing. A pipette is simply a tool to measure exact portions of a blood sample to be placed into a vial. Only a portion of the blood sample is used for testing.

  • Preparing the Sample

Once the sample is pi petted, it is ready to be prepared. You are probably asking yourself why does it need to be prepared ? All blood alcohol samples usually have propane added to the vial as a n internal standard. Also,  a salt solution is added.The sample was placed into ma numbered slot to make ascertain the lab tested the right sample.

  • Running the Sample.

After the sample is prepared , it is ready to be tested using a head space gas chromatography with flame ionization detection. The machine will test numerous samples. The first step is to place all the samples , controls , calibrators , and blanks onto a tray or carousel. The samples are then tested by the gas chromatography. The samples are reported using a computer software program. The machine does all the testing.

  • Maintenance.

The gas chromatography machines don't run forever without some maintenance .Before the sample is vaporized by the flame ionization, the sample is run though capillary columns. The capillary columns need to be clipped and replaced on a periodic basis.

This is just a brief overview of my day at the Rocky Mountain Laboratory  allowing some folks to visit the lab. For some reason , the Tennessee Bureau of Investigation does want to give me a tour. I would highly recommend this course for all DUI defense lawyers


The First Step Toward A Police State

The first step towards a police state is being able to track , locate or identify all the people. The U.S.Supreme Court approved the first step in that process with the case of  Maryland v. King . Maryland as well as 28 other states and the Federal Government take DNA samples at the time of arrest. Tennessee takes a sample on some violent crimes. The majority of the court make the analogy that DNA is simply used to identify someone like a fingerprint or a photograph.

Hogwash. DNA is an investigative tool.Once a sample is captured , it is sent to a DNA database. It is checked against DNA samples recovered from crime scenes in hope of a match. In King , Mr.King was arrested and a DNA sample was taken .The sample matched from some DNA taken from a crime scene.

Justice Scalia blasted the other Justices in a rare oral dissent. Justice Scalia stated in part:

“The court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the state’s custody, taxes the credulity of the credulous,” he said. “Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicion-less law-enforcement searches.”

 “This search had nothing to do with establishing King’s identity,” Justice Scalia wrote, warning that “as an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.”


Justice Scalia is dead right. This case is just another exhibit in the case against the shrinking Fourth Amendment. The Second Amendment grows which each court decision while the protections against an invasion of privacy wanes.

My fear is Tennessee will now take a sample of everyone that is arrested. Where does the court draw the line ? Do we start taking DNA samples of every child when they enter school ? How about we take a DNA sample when a child is born ? The court just ruled in Missouri v. McNeeley that the police should have a search warrant before a blood sample is taken . Is DNA different ?

Justice Alito opined that the King case may be one of the most important case in years regarding criminal procedure. He may will be right.

Will there be new standards on police ?. No DNA sample taken from the crime scene. Therefore , lack  of forensic evidence equals not guilty.

My fear is big brother or a police state may be closer now than ever before. Drone technology , video cameras , and now DNA sampling where are we headed ?

Should The Government Have Your DNA ?

The New York Times ran an editorial  on Justice Roberts order staying a Maryland Supreme Court ruling. Maryland passed a law that allowed police to take a DNA sample of those charged with a crime whether guilty or not. The Maryland Supreme Court ruled the law was unconstitutional based on a violation of the Fourth Amendment.   It appears the U.S.Supreme Court might hear the case.

It is a scary law that Maryland passed. Those charged with a crime has their DNA collected. Later, they might have their cased dismissed or found not guilty. The government still has their DNA sample. Big Brother is at work. Clearly , the law authorizes a seizure of someones DNA for no legitimate reason. Twenty four states authorize the collection of DNA at the time of arrest . Currently , Tennessee only authorizes the collection of a DNA sample after the conviction of a felony which is reasonable.

The question is why would Justice Roberts stay a state court order when the U.S. Supreme Court has not yet even decided if they are going to hear the case .  Granted , the case is important and needs to be decided . However , does a state constitution trump the U.S, Constitution ?   Under the Tennessee Constitution , Tennesseans do have more protection than the U.S. Constitution . The Fourth Amendment is shrinking and under constant attack. There are groups that fight any attack on the Second Amendment's right to bear arms . I  wish we had a group as strong as the NRA to fight for the Fourth Amendment.

Maybe the government should take everybody's DNA when they get a photo ID so they can vote. Then , the government could stop voter fraud and have a DNA data base.


Problems in the Crime Lab

Today is going to be a short post . I am constantly amazed that in voir dire in most criminal cases the district attorney focuses on CSI. The state wants to make sure the jury does not hold them to the standard of TV . In fact , it appears the proficiency in criminal crime labs across the country is severely lacking.. PBS just ran a great documentary on the subject. After you watch it , please post your comments on the subject. It appears the real CSI is not very trustworthy.

The Real Truth About Forensic Science

The image above is a lab tech sorting blood alcohol samples into a rack.  I now know why that's important due to a class I took last year. DUI lawyer Justin McShane posted an article about the details of the class on gas chromatography on his blog. The point that Mr. McShane makes is that great DUI lawyers need to understand the ins and outs of forensic science. All too often we as criminal defense attorneys look at a one page blood alcohol report and cringe with fear.Thanks to the class that Mr.McShane started. Criminal defense lawyers don't need to cower.

The link to the article lays out the agenda of the program. Attorney Machine teaches the program with real live scientists and attorney Josh Lee. . Today's post is to thank him , Josh and the teaching staff for providing a great learning experience.

Disclaimer . I graduated from the course last June . I wish I would have paid more attention in science class in my younger days. So do the lab techs. Just ask one of them to explain Van Deemter's curve.

Maintaining Integrity in the Crime Lab

I just ran across some great information by Christine Funk. Ms Funk is a criminal defense lawyer in Minnesota. Here is her interview of  M. Fredric Rieders, Ph.D. Dr. Rieders is a forensic toxicologist and CEO at NMS Labs.  In this interview, Dr. Rieders provides basic information about what a forensic toxicologist does and how the work can assist law enforcement in assessing the significance of toxicological findings

Here is the link to Ms Funk's podcast on crime lab issues.

San Francisco Crime Lab Shut Down

Numerous problems in San Francisco's forensic crime lab have resulted in hundreds of drug cases being dismissed and hundreds more are under investigation.The root of the problem are accusations that an employee of the San Francisco Police Department's crime lab was stealing cocaine.

Lab Tech Deborah Jean Madden is under investigation for theft and possibly evidence tampering.The crime lab was shut down in early March.Over 600 drug cases have been dismissed so far.San Francisco's crime lab is not independent from the police department.

Police Chief George Gascon ordered an audit of the crime lab which found several problems including problems in the "chain of custody" record keeping for seized drugs. and improperly sealed drug envelopes.The audit found the evidence tampering would have been prevented had good laboratory practices been in place.

It appears the police knew of the problems with Ms.Madden as long ago as 2005 when 4 grams of cocaine handled by Ms. Madden came up missing in a federal racketeering trial Ms.Madden had been repeatedly counseled when she failed to follow laboratory protocol.


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Crime Lab to Be Examined

 In light of the finding of the innocence of a North Carolina Man,Gregory F. Taylor ,North Carolina Attorney General Roy Cooper has ordered a review of the state's crime lab after disclosures about practices there that led to the exoneration of Mr.Taylor who had been wrongly accused of murder.Two former assistant directors of the Federal Bureau of Investigation will review the crime lab's practices and protocols in criminal cases dating back to the 1990's. I had previously reported that a special panel reviewed Mr.Taylor's case and found by clear and convincing evidence that Mr. Taylor was innocent.The conviction was based on flawed evidence from the crime lab.One key piece of evidence used at trial was blood stain evidence. The stains found in the truck were not human blood which the prosecutor alleged.

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