The lawyers for New York City subway shooting suspect Frank James said the FBI may have violated his constitutional rights by taking DNA samples without first informing them.
The lawyers, who said they may seek to have evidence from a second sampling excluded from the case, wrote in a letter to a judge Thursday that while the Federal Bureau of Investigation had a warrant, they weren’t notified ahead of time and weren’t present at the April 26 procedure. The move may have been “an invasion of cherished personal security,” they said.
Agents had already taken a genetic sample the day of James’s April 13 arrest and took a second round of samples from James’s cheek on Tuesday, almost two weeks after he had been booked, according to his defense.
“Here, because the government failed to provide notice to counsel before questioning and searching Mr. James, their practice risked violations of Mr. James’s core constitutional rights,” Mia Eisner-Grynberg, a lawyer for the Federal Defenders office, said in the letter to U.S. Magistrate Judge Roanne Mann in Brooklyn, New York.
The government responded later Thursday, calling the defense claims “hyperbole” and “moot” because James’s defense team already had been notified about the warrant since it was publicly filed on the court docket on April 22, the day a federal judge authorized it.
30-Hour Manhunt
James was arrested after a 30-hour manhunt and charged with committing a terrorist act on a mass transit system. If convicted, he faces as long as life in prison, Peace said. James is 62, according to the Federal Bureau of Prisons.
He is accused of detonating two smoke canisters during the Tuesday morning rush hour on April 12 as a Manhattan-bound N train was pulling into a station in Brooklyn’s Sunset Park section and then fired a Glock handgun at least 33 times, injuring 10 people. The shootings sent commuters racing out of the smoke-filled train car, with at least 13 others injured in the chaos, police said.
Eisner-Grynberg said that by depriving James’s lawyers of the chance to witness the DNA procedure, agents hampered them in later challenging its validity. She said the defense may seek to have the evidence suppressed.
Mann had ordered the government to respond to the letter by May 3 and provide the court with any supporting affidavit submitted to obtain the warrant, but prosecutors acted swiftly, filing their response Thursday evening.
While James’s lawyers claimed that FBI agents may have used the session to try to elicit statements from him, James “was not questioned by and made no relevant statements to the law enforcement officers who executed the search warrant,” Assistant U.S. Attorneys Ian Richardson and Sarah Winik wrote.
The suggestion that James’s lawyers may seek to suppress any evidence obtained from the session is “premature as a matter of law” prosecutors said, because James “is not entitled to a preview of the government’s evidence in an ongoing investigation” and before he’s indicted.
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Impact on Case
In seeking James’s detention two weeks ago, prosecutors called their case against him “strong,” saying they have collected physical evidence linking him to the gun used in the attack. Additionally, camera footage shows him driving to New York on the morning of the shooting in a van he rented in his own name and later shows him driving the van to the vicinity of the Brooklyn subway station, according to authorities.
James was caught on camera entering the subway wearing a yellow hard hat and orange jacket matching descriptions victims gave of the gunman. Authorities also said they found a Glock pistol James bought and that his bank cards and cellphone as well as the keys to the U-Haul van were found in a bag near the scene of the crime.
Prosecutors also said James had posted violent videos on social media, including instructions on how to make a Molotov cocktail and a homemade bomb.
While it’s unclear why authorities sought the DNA samples, the case is in its earliest stages, and prosecutors may seek to develop more evidence against James before presenting their case to a federal grand jury to obtain an indictment.