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Fingerprints are Not Unique

 

In a federal criminal case out of Alabama, I was recently able to establish at a bond hearing substantial doubt as to the accuracy of a fingerprint on a bag of cocaine, which was the only credible evidence connecting my client to the offense.

On cross-examination of the fingerprint expert, I was able to get the expert to admit that, despite popular opinion, fingerprints are not completely unique to each person; that the average "latent" fingerprint is only 20% of a complete fingerprint; that when an unknown print is submitted to the FBI and run through its computer, which contains over 20 million known fingerprints, the computer comes up with several possible "matches" that are so close to the unknown print that the computer cannot tell them apart; and that, ultimately, the opinion of the expert (usually a local deputy sheriff) is a subjective opinion based on his knowledge and experience.

I was able to overcome the legal presumption, strongly argued for by the Assistant U.S. Attorney, of "no bond" for my 25-year-old client, from a good family, with no prior criminal record, who had allegedly gotten into a huge drug deal and was looking at a draconian, minimum ten-year sentence. Because of the expert's concessions and the Court's ruling, I was able to settle the case for a very reasonable and appropriate sentence. The client was very happy.

Lowering a Criminal History Category

 

In two federal cases, one a few years ago in Indiana and one recently in Alabama (both drug cases), I have been able to lower the criminal history category of my clients by immediately filing petitions for writs of habeas corpus in the state courts to set aside convictions of my clients in those state courts while each federal case was pending.

Of course, one has to dig for facts in the state cases which show either ineffective counsel or a broken plea agreement or some other fundamental, structural error in the proceedings, of which the client may or may not be aware. But diligent counsel, on occasion, can find a serious defect that has not been waived (or the waiver was unknowing and constituted ineffective counsel) if he will take the time and/or hire local counsel to carefully investigate the file, including the district attorney's file. The payoff can be dramatic. If the record of the error is clear, or can be made clear, one can also get the right local counsel to obtain from the local criminal district attorney (or the prosecutor, however denominated) a non-objection to the granting of the writ of habeas corpus.

The difference that can make in the federal sentence can be quite significant, especially if one of the newly set aside convictions had initially made your client a career criminal. Although the U.S. Sentencing Guidelines allow the federal district judge to take into consideration those convictions which have been set aside or expunged, both of my federal judges in these two instances did not do so on the grounds of comity and because the language of the state court orders granting relief (which undersigned counsel had drafted) made quite clear the lack of fundamental fairness underlying those state court convictions.

- Arch McColl is a post conviction lawyer in Dallas, Texas.

Winning a criminal DWI Case

 

Most criminal defense attorneys do not take advantage of the two opportunities to depose the arresting officer, namely, in the hearing to suspend the driver's license and during a Motion to Suppress Evidence flowing from the arrest, based on a lack of probable cause to charge the offense of DWI.

An investigator should accompany the client in retracing the route and reviewing all the relevant driving and pre-arrest facts on the night of the arrest. That retracing should be done at or near the same time of day or night as the arrest was made. Photographs of the surface of the street or sidewalk used by the officer to direct the client to take the field sobriety tests often show cracks, unevenness, subtle slopes, etc.

The tape recorded transcript from the driver's license hearing can be given to a court reporter for certification or a reporter can be secured in person. That, together with a later Motion based on lack of probable cause, not for the stop, but for the full custodial arrest, allows for a more complete pre-trial record of the relevant events. Without at least one of these hearings, a criminal defense lawyer is going to trial "blind" in a DWI case.

Finally, a toxicologist/biokinesiologist who can watch the videotape of the client on the night of the arrest and testify whether there are sufficient "clues" of intoxication based on the National Highway Traffic Safety Administration's field sobriety test can be very helpful in establishing reasonable doubt and getting an acquittal.

“No action” is a little-known option for the Grand Jury in a “politically delicate” situation

Recently, I represented a businessman in a neighboring county to Dallas before the Grand Jury. The particular crime he was charged with was against a police officer, which had caused the Chief of Police to testify personally at the Grand Jury, a rather rare phenomenon.

The problem for the District Attorney was this: Through my due diligence, I had shown the District Attorney that he lacked an essential element of the case, which was related to restraining the police officer. The District Attorney agreed, but had to deal with the insistence of the Chief of Police to indict my client.

I suggested a "no action" by the Grand Jury, which is a little-known third option for Grand Juries to take, the other two being a True Bill and a No-Bill. The District Attorney liked that idea because a No-Bill would be a slap in the face to the Chief of Police; a True Bill would have very likely resulted in a not guilty verdict; but, with a "no action" result by the Grand Jury, there is never a record of any official disposition of the "matter" (which was not a "case" because of no indictment).

A "no action" also had the additional benefit for my client of not having to file a Petition for Expunction, because the case had been a direct Grand Jury referral (i.e., no arrest), so there was nothing to expunge and no electronic entry as to what the Grand Jury did. In other words, 15 years from now, an archivist, researching the public records, would find nothing regarding this allegation.

When your college-age son gets charged with intoxication manslaughter, how do you get probation?

One secret to winning an intoxication manslaughter, to over-simplify it, is that the intoxication must not be a cause; it must be the cause of the death.

If you can get a top-flight accident reconstruction expert to find another likely cause of the accident, you can argue that, even sober, the accident would have probably occurred.

That, coupled with innovative pretrial motions, 50 letters of good character references, no prior criminal record, immediate enrollment into an alcohol rehabilitation treatment center, etc., can result in your client going home rather than to the penitentiary.

For example, a college age first time offender who admitted to the arresting officer, "I just drank a case of beer," was given probation because of the intelligent use of an accident reconstruction expert who showed that the intoxication, while a cause of the accident, was not the primary cause of the accident.

Another example would be a client who had an undriven car upon blocks for a year, who lost control and killed his passenger and was intoxicated. My expert, a master mechanic and metallurgist testified that mechanical defects of the breaks, together with the fact that the corner in question had the second highest accidents in rates in Dallas County, established reasonble doubt because the accident probably would have occured without intoxication.

I am available for consultation in criminal cases.

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