New Report Calls into Question Many Types of "Forensic Science"

Anyone familiar with television will know this scene: an impossible case, a wacky but smart scientist, and an aggressive prosecutor does the impossible and brings a criminal to justice. 

In the course of an hour, they bring their man down with a combination of grit and science! When football isn't on, it's great Thursday night entertainment. 

Except, as it turns out, you can't really get fingerprints off a fractured bullet. You can only rarely get fingerprints off a gun at all. No one can "read" a fire, and while digital cameras have come a long way you can't get an image reflected off a cornea.

If you've read this far you might be thinking to yourself, "those shows are just for entertainment, no one actually thinks that you can reflect the killer's face off a raindrop!"

But as it turns out the government thinks it can and their own forensic science inquiry has told them that their science is suspect. Everything from fingerprint analysis to once hallowed DNA analysis has, as it turns out, not been peer reviewed. Instead, in many instances, the science behind these disciplines has been assumed. That means the scientists involved did exactly what you're not supposed to do when you want to prove something, they decided that the evidence existed and worked backward to show that it existed. Great for Thomas Aquinas, not so great for an innocent man on trial for a crime he did not commit. 

Which brings me to the point of this post. After being confronted with the fact that much of the science the government relies on to get convictions is untested, unvetted, and lacking in scientific basis many government lawyers stated a willingness to right on using what they've been using.  Indeed the nation's top prosecutor, Loretta Lynch, said in a Wall Street Journal Interview, “we appreciate their contribution to the field of scientific inquiry, the department will not be adopting the recommendations related to the admissibility of forensic science evidence.”

Frankly, that's not good enough. If you, or someone you love, has been arrested you should talk to a professional to know what your rights are and how best to handle the criminal case going forward. You need to bring someone in who will challenge the evidence as admissible because evidentiary mistakes are costly to the accused. Once into the record they can prejudice a jury and earn an unjust conviction for a prosecutor. 

If you want to read the report in full you can download it at this link: 
https://www.whitehouse.gov/sites/default/files/microsites/ostp/PCAST/pcast_forensic_science_report_final.pdf

If you would like to read more about Loretta Lynch's statements as quoted above you can read them here: http://www.wsj.com/articles/white-house-advisory-council-releases-report-critical-of-forensics-used-in-criminal-trials-1474394743

Defenses to Weapons and Firearms Charges and Recent Helpful Supreme Court Caselaw

Firearms Violations

Gun Charges Defense Lawyer Zak Goldstein

Firearms and other weapons offenses are some of the most serious charges a criminal defendant can face in Pennsylvania. Although many Pennsylvania mandatory minimums have been eliminated, gun charges result in extremely high bail until the case is over, a felony record, and significant jail time upon conviction.

Pennsylvania Law criminalizes both the possession of firearms under certain circumstances as well as the possession of certain “offensive weapons.” Gun charges are typically referred to as VUFA charges (“Violation of the Uniform Firearms Act”). The most common gun charges seen in Philadelphia court are typically 18 Pa.C.S. § 6106, § 6108, § 6105, and § 6110.2.

VUFA § 6106 makes it illegal to carry a firearm in a car or in a concealed manner without a license to carry. In Philadelphia, § 6106 is almost always graded as a felony because it is charged at the same time as § 6108, and it may carry significant jail time even for defendants who do not have a prior criminal record. In the rest of the state, § 6106 is more likely to be a misdemeanor for a defendant who has no prior criminal record.

VUFA § 6108 makes it illegal to carry a firearm on the streets of Philadelphia. VUFA § 6108 is a misdemeanor of the first degree, but it is still taken very seriously.

VUFA § 6105 makes it illegal for people with prior convictions for certain offenses to carry a firearm. § 6105 may apply even to someone who does not have a prior felony conviction as certain misdemeanors, juvenile adjudications, and even Protection from Abuse orders may make someone subject to § 6105. It is typically referred to as the “felon in possession of a firearm” statute, and it is likely to carry the most severe penalties of any gun charge. However, § 6105 is not always properly graded as a felony. Depending on the disqualifying prior conviction or adjudication, a defendant may have committed only a misdemeanor, and the Commonwealth often charges defendants with felonies without realizing this.

Finally, VUFA § 6110.2 makes it a felony to possess a firearm with an obliterated serial number.

If you are charged with a violation of one of these statutes or some other weapons offense, you need to hire an experienced criminal defense attorney immediately. It is very possible that you may have a strong defense to your case.

First, for each charge, the police and prosecutor will have to prove that they found the weapon legally. If the police conducted an illegal stop or search, an experienced criminal lawyer may be able to have the weapon suppressed or excluded from evidence and the charges thrown out. In many cases, the police conduct stops and searches without proper reasonable suspicion or probable cause, and therefore the fruits of the illegal search must be excluded.

Second, the prosecution has to be able to prove that the gun was actually possessed by the defendant. Simply because a gun was found near the defendant, in a car in which the defendant was the passenger or even driver, or in a house, does not automatically mean that the gun was possessed by the defendant. The prosecution must show that the defendant actually possessed or constructively possessed the weapon. Constructive possession means that the defendant had knowledge of the weapon’s existence and the intent to control it. It is not enough to show that the defendant knew the weapon existed or was nearby because it may have belonged to someone else. The Commonwealth must also show that the defendant intended to control it. Experienced defense counsel can investigate the circumstances and determine if it may be possible to show that the gun belonged to someone else.

Third, each statute has very specific elements which the Commonwealth must prove. For example, § 6108 requires the prosecution to show that the gun was actually possessed on the streets of Philadelphia. If the prosecution can show only that the defendant had the gun in the front of private property, the prosecution may not be able to secure a conviction. Likewise, the Commonwealth often charges § 6106 as a third-degree felony even where they cannot show that the defendant actually concealed the gun.  

Gun charges are extremely serious, and they are far more complex than just whether or not the police found a gun. All of the statutes have highly technical elements which the prosecution must be able to prove beyond a reasonable doubt, and the state and federal constitutions require a showing that the police found the guns legally. If you are charged with a gun charge or other weapons offense, call 267-225-2545 now for a free, confidential consultation with an experienced criminal defense lawyer.

Other Weapons

In addition to these common VUFA charges, Pennsylvania law also prohibits carrying many types of “offensive weapons” under 18 Pa.C.S § 908. The statute prohibits carrying offensive weapons, and defines offensive weapons as follows:

Any bomb, grenade, machine gun, sawed-off shotgun with a barrel less than 18 inches, firearm specially made or specially adapted for concealment or silent discharge, any blackjack, sandbag, metal knuckles, dagger, knife, razor or cutting instrument, the blade of which is exposed in an automatic way by switch, push-button, spring mechanism, or otherwise, any stun gun, stun baton, taser or other electronic or electric weapon or other implement for the infliction of serious bodily injury which serves no common lawful purpose.

These offenses can also be extremely serious. However, just as with a firearm, the police and prosecution must be able to show that they found the weapon lawfully. If the police conducted an illegal stop or search, then the weapon could be excluded and the charges dismissed. Likewise, the prosecution must be able to show that it was the defendant that actually possessed the prohibited weapon.

Most importantly, a recent United States Supreme Court case casts significant doubt on the constitutionality of the Prohibited Offensive Weapons statute. In Caetano v. Massachusetts, the United States Supreme Court reversed the conviction of a Massachusetts woman who owned a taser for self-defense against an abusive boyfriend. The Supreme Court held that the Second Amendment provides the right to possess "all instruments that constitute bearable arms," even those not in existence at the time of the founding of the country. Accordingly, the Supreme Court found that the Massachusetts statute which prohibited tasers violated the Constitution and could not be enforced. The Pennsylvania statute has not yet been challenged in the appellate courts, so prosecutors continue to charge defendants with violations of the Prohibited Offensive Weapons statute. While we do not recommend that you start carrying a prohibited weapon in order to test the law, if you are charged with a violation of this statute, you need an attorney to fight for your rights under the United States Constitution.

Gun Charges Lawyers

If you are charged with a gun or other weapons offense, you need an experienced gun charges defense attorney to evaluate your case, investigate and analyze potential defenses, and provide you with all of the options. Call 267-225-2545 now for a free consultation. 

Goldstein Mehta LLC Rated in Top 20 Best Philadelphia Criminal Defense Attorneys

Philadelphia Criminal Defense Attorneys Zak Goldstein and Demetra Mehta of Goldstein Mehta LLC have just been selected by Expertise to their 2016 list of the 20 Best Criminal Defense Attorneys in Philadelphia. We greatly appreciate the recognition and will continue to fight hard for our clients' rights every day in and out of the courtroom. Learn more about the ranking system here. 

SORNA/Megan's Law Update - PA Supreme Court Reduces Registration Requirements for Many First Time Offenders

The Pennsylvania Supreme Court recently announced some important changes for defendants previously facing or subject to registration on “Megan’s Law” for certain non-violent sexual offenses such as possession of child pornography. The Court held that the Sex Offender Registration and Notification Act (“SORNA”) requires fifteen years of registration on Megan’s Law instead of lifetime registration for many first-time offenders convicted of multiple counts at the same time.
 
Previously, the State Police, who are responsible for implementing the registration component of SORNA, required first time offenders who were convicted of multiple counts of possession of child pornography or other Tier I or Tier II Sex Offender Registration and Notification Act (“SORNA”) offenses at the same time to register as Tier III offenders and to register for life. This interpretation of the statute had a tremendous impact on virtually all potentially Tier I defendants because police and prosecutors have enormous discretion in determining how many counts with which to charge any given defendant. For example, the prosecutor decides how many charges to bring against a defendant who possessed multiple prohibited images or multiple computers containing prohibited images. Prior to the Court’s ruling, if the prosecutor brought multiple counts, the defendant would potentially be subject to lifetime registration under the State Police’s interpretation of the Act. If the prosecutor brought only one count, then the defendant would be subject to fifteen years of registration. Prosecutors often could use this leverage to extract guilty pleas out of defendants with defensible cases by agreeing to allow the defendant to plead to only one count and thereby avoid lifetime registration in exchange for a guilty plea. 
 
However, the Pennsylvania Supreme Court has just rejected the State Police’s interpretation of the statute. In the companion cases of Commonwealth v. Lutz-Morrison and A.S. v. PA State Police, the Supreme Court ruled that first time offenders without prior sex offense convictions are properly classified as Tier I or Tier II offenders (depending on the Tier of the offense) and subject only to fifteen or twenty-five year registration requirements regardless of how many counts the prosecutor chooses to file. The Court’s ruling hinges on language in the registration statute making someone with “[t]wo or more convictions of offenses listed as Tier I or Tier II sexual offenses” a Tier III offender." The Court held that because the SORNA law is a recidivist statute, meaning it is meant to provide an increasing level of punishment as an offender commits subsequent offenses, the statute “requires an act, a conviction, and a subsequent act to trigger lifetime registration for multiple offenses otherwise subject to a fifteen- or twenty-five-year period of registration.”
 
It appears likely that the Court’s interpretation will be applied retroactively, meaning that offenders who were already deemed lifetime offenders by the State Police may have the opportunity to be re-classified. It is not yet clear whether the State Police will require each offender to file suit, file some sort of paperwork with the State Police, or whether the State Police will re-classify offenders automatically. It is also possible that there may be statutory time limits on an offender’s ability to petition for reclassification. Therefore, it is critical that you contact an experienced criminal defense attorney immediately if you are facing potential sex offense charges or already subject to lifetime registration under these or similar circumstances. 

The top-rated attorneys of Goldstein Mehta LLC have extensive experience representing individuals charged under Pennsylvania's SORNA and Megan's Law statutes. Our attorneys are extremely knowledgeable about recent developments in the law and able to use that knowledge to our clients' advantage. Call 267-225-2545 today for a free, confidential consultation. 

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