Warrantless DUI Urine Tests Argued in ND Supreme Court
June 26 – The North Dakota Supreme Court recently heard arguments on the issue of warrantless urine tests in DUI cases, reports the Bismarck Tribune. Earlier this year, a district judge dismissed a ND defendant’s DUI test refusal charge and wrote in his dismissal order, “The state’s interest in performing chemical tests to combat drug-impaired driving, while strong, does not overcome a person’s Fourth Amendment right to be secure in his or her bodily fluids, urine included.” Disagreeing with this conclusion, the state stated in its brief to the Supreme Court, “Put simply, urine testing is integral to deterring drug-impaired driving.” It called urine testing “least intrusive means for detecting drug-impaired drivers.” Last year “the U.S. Supreme Court ruled in favor of warrantless breath tests in drunk driving cases but said the Fourth Amendment doesn’t permit warrantless blood tests, a more invasive procedure.”
Better Photo Lineup Procedures Needed in MN
June 16 – The Star Tribune recently reported on criticisms of photo lineup procedures in Minnesota. “Not long ago, Minnesota was considered a leader in the science of photo lineups,” but now it is not among 19 states that have adopted improved policies in response to a new U.S. Dept. of Justice rulebook. William Ward, the chief public defender of Minnesota, describes Minnesota’s police lineup policies as “all over the board.” The Star Tribune article gives some examples of problematic lineups, and states that “the Innocence Project counts bad identifications as a factor in 70 percent of wrongful convictions the group has overturned nationally.”
Supreme Court Will Decide Cellphone Warrant Issue
June 12 – Last week the U.S. Supreme Court agreed “to decide whether the government needs a warrant to obtain information from cellphone companies showing their customers’ locations,” reports the New York Times. The case it will consider “concerns historical data held by cellphone companies that shows users’ movements over time and could, for instance, place them at the scene of a crime.” The broad issue behind this case is American citizens’ Fourth Amendment rights against unreasonable search and seizure by the government.
“Hardline” Prosecutor Influencing Dept. of Justice Policies
June 2 – “Zealous prosecutor” Steve Cook is helping “oversee a new Justice Department task force developing policies to fight violent crime in cities,” reported the Associated Press recently. Cook has been touring the U.S. “seeking input from law enforcement officials that he will take to the task force as it crafts its recommendations, which are due in July.” Among Cook’s latest projects was working on the U.S. attorney general’s directive “urging the nation’s federal prosecutors to seek the steepest penalties for most crime suspects, a move that will send more people to prison for longer, and which was assailed by critics as a revival of failed drug war policies that ravaged minority communities.”
Hair Evidence Misused by the FBI, State Agencies
May 24 – Minnesota Lawyer recently published an article on “flawed hair evidence” used in numerous U.S. trials in the past few decades. State crime labs as well as the FBI are now believed to have erred in how they treated certain types of hair analysis, and “[the] FBI, the New York-based Innocence Project and the National Association of Criminal Defense Lawyers are examining nearly 3,000 cases nationwide in which the FBI may have misused microscopic hair comparison.” Defendant Richard Beranek of Wisconsin is just one of the many who hope for new trials because of this flawed evidence used to convict them.
Former Defendants Want to Sue MN Police Sergeant for Fabricating Evidence
May 12 – The “convoluted saga” of St. Paul police sergeant Heather Weyker, accused of “exaggerating and possibly even fabricating key details” in a failed child sex trafficking prosecution, had a new episode last week in Minneapolis. Attorneys representing 21 former defendants in the criminal case asked Judge Joan Ericksen “to give the green light to civil lawsuits against Weyker” and others in the department. The plaintiffs argue that not only did Weyker make up evidence, but she also “induced two chief witnesses — the purported victims of the trafficking — to give false testimony with promises of financial help and other assistance.” Weyker’s attorneys call the lawsuit “retaliatory.”
ND Increases Protections for Confidential Informants
May 2 – A North Dakota bill “aimed at protecting confidential informants used by law enforcement” was recently signed by the governor, reports the Bismarck Tribune. Stemming from the death of college student Andrew Sadek, the new law “requires law enforcement agencies to execute a written agreement with informants that includes the informant’s right to speak with an attorney. Law enforcement agencies must undergo training before using confidential informants and the Peace Officers Standards and Training Board must write rules to ‘execute reasonable protective measures for a confidential informant.'”
Evidence Tampering and the Right to Confront Witnesses
April 25 – A recent op-ed by Yale law professor Stephen L. Carter discusses the importance of the Sixth Amendment right to confront witnesses in light of evidence tampering by forensic technicians. Carter shares the story of the recent “decision by Massachusetts prosecutors to vacate some 21,000 drug convictions,” tracing back to a chemist’s 2013 guilty plea to “27 counts of tampering with evidence, filing false reports and misleading investigators.” “[A]s the Dookhan scandal should remind us,” Carter says, “there are good reasons to have laboratory technicians come into court and defend their work. [Justice] Scalia was right: It’s what the Constitution requires.”
Marsy’s Law Affecting Criminal Defense Preparation in ND
April 17 – The North Dakota Supreme Court recently ordered “changes in court rules following the passage of the Marsy’s Law constitutional amendment last November,” reports the Bismarck Tribune. Alleged victims of crimes may now “refuse to participate in a deposition required by the defendant or defendant’s attorney,” request that their contact information be kept secret from the defense, and view “material from a [defendant’s] pre-sentence report… prior to sentencing.” Since November, Ward County has been among the places that Marsy’s Law has been fought over: “defense attorneys have demanded names and addresses for victims so they can prepare a defense, and “[t]wo Minot judges recently issued separate rulings ordering that the state turn over victim names, but not addresses, to the defense lawyers.”
Ringstrom Wins Suppression in Felony Case
April 8 – The Forum recently reported on the dismissal of a Clay County felony drug case, after defense attorney Bruce Ringstrom Jr. sought to have improperly gathered evidence suppressed. “If officers searched everyone they pulled over for speeding or broken headlights,” Ringstrom says in the article, “they would certainly find more contraband and evidence of illegal activity. But they would also intrude upon the privacy of countless otherwise law-abiding Americans.” Judge Galen Vaa agreed with Ringstrom that in this case law enforcement “‘did not have a reasonable and articulable suspicion’ to expand the scope of the stop and therefore subsequent searches of the car and the occupants’ cellphones should not have occurred.”
Police Body Camera Recommendations Released
April 2 – The National Association of Criminal Defense Lawyers has released a report on law enforcement body cameras that “aims to set standards that protect the rights of the accused and set best practices for camera use,” reports the Forum News Service. For example, a recommendation of the report is that “officers be given clear direction on when to record and not leave decisions up to officer discretion.” Professor Steven Morrison of the UND School of Law, who co-chaired the report’s task force, explains, “Most cops want to do their jobs well, and they really are dedicated and try to do well. But whenever you give discretion, especially in the criminal justice process, it enables abuse.
Needless Violence Accompanies Drug Raids, Critics Say
March 20 – The New York Times recently investigated “forcible-entry raids” of suspected drug houses and found that in the U.S. “at least 81 civilians and 13 law enforcement officers died in such raids from 2010 through 2016.” In addition to these deaths, the raids lead to “gruesome injuries, demolished property, enduring trauma, blackened reputations and multimillion-dollar legal settlements at taxpayer expense.” Advocates for the raids say they are backed by probable cause and necessary to penetrate drug houses. But critics say that too often the raids violate due process and are “inherently chaotic and place bystanders in harm’s way.”
Law Enforcement Among the Beneficiaries of Minnesota Secrecy Trend
Mar. 13 – The Star Tribune recently reported that secrecy “is emerging as a reflex at all levels of government in Minnesota and across the nation.” For example, “legislators blocked the public from seeing virtually all video from police body cameras,” and in a 2016 shooting incident a county sheriff “cited a law that protects the identities of certain individuals, including undercover officers.” The article also tells the story of Tony Webster, whose interest in government records “revealed that Hennepin County Sheriff Rich Stanek’s investigators are now using facial recognition software to catch criminals, and that security at the Mall of America created a fake Facebook account to gather intelligence about a Black Lives Matter protest.” Webster’s interactions with the sheriff’s office have been affected by the fact that last fall, “the sheriff’s office started deleting any e-mails older than 30 days.”
ND Asset Forfeiture Reform Progressing
Mar. 2 – A North Dakota bill that would reduce law enforcement’s ability to seize citizen property has now been passed by the state’s house of representatives, reports The Blaze. The bill “would require a criminal conviction before prosecutors could push forward with seizure of property.” The Institute of Justice has summarized ND’s current forfeiture laws as “lowest bar to forfeit and no conviction required; poor protections for innocent third-party property owners; as much as 100% of forfeiture proceeds go to law enforcement.”
A Criminal Defense First for Forensic Science Organization
Feb. 23 – For the first time, a criminal defense attorney has been chosen as the president of the American Academy of Forensic Sciences, an organization with about 6,700 members. Betty Layne DesPortes is a lawyer in Richmond, Virginia, and is an author of the book Scientific Evidence in Civil and Criminal Cases. She was sworn in as AAFS president last week in New Orleans.
2016 News Archive
To read all of our news updates from 2016, click here.