Lawyers for the accused New York City subway shooter Frank James say the Federal Bureau of Investigation illegally obtained James’ DNA and they want the evidence tossed.
On April 12, James allegedly shot 10 people and injured more than a dozen others during a shooting rampage at rush hour on the Brooklyn train.
Attorneys Mia Eisner-Grynberg and Deirdre D. von Dornum, who are representing the 62-year-old James, say the FBI unconstitutionally questioned and searched James in his cell, according to court papers.
In a letter sent to U.S. Magistrate Judge Roanne L. Mann of the Eastern District of New York, Eisner-Grynberg and Dornum alleged that FBI agents went to James’ cell on April 26 and questioned him, took DNA swabs, and told him to sign certain documents, NBC New York reported. James is being held at the Metropolitan Detention Center in Brooklyn.
The attorneys say the FBI failed to inform them about their intentions so they could be present for their client.
“Contrary to standard practice, the government committed this intrusion absent advance notice to counsel, depriving us of an opportunity to be heard or to be present. Neither did the government provide subsequent notice to counsel,” the lawyers said.
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The search warrant approving DNA swabs to be taken from James wasn’t provided to him, the lawyers said.
But federal prosecutors say the FBI’s actions did not infringe on James’ constitutional rights.
“It is the standard practice in this District that when the government obtains a search warrant for buccal [oral] swabs from a represented, post-arraignment defendant, the government informs counsel of same before its execution and offers an opportunity to be present,” Eisner-Grynberg wrote in the letter.
Prosecutors defended the legality in a court filing, pointing out that the DNA samples were obtained through a judicially authorized search warrant, CNN reported
“No violations of any of the defendant’s constitutional rights occurred in the execution of the warrant,” prosecutors wrote in the filing.
Prosecutors said that the affidavit supporting the search warrant to obtain DNA was filed publicly on April 22, and was available to the defense and the public at that time.
James has yet to enter a plea.
EDNY: On NYC Subway Shooter Frank James, Here Are Warrants for DNA, Filed at Judge's Request: "the underlying affidavit upon which the DNA buccal swab search warrant was issued" – now on Inner City Press' DocumentCloud here https://t.co/e6d8sInACs— Inner City Press (@innercitypress) April 28, 2022
Photo: New York City Police and law enforcement officials lead subway shooting suspect Frank R. James, 62, from a police station, in New York, April 13, 2022. He has been charged with a federal terrorism offense. (AP Photo/Seth Wenig)