Lawyers for NYC subway shooter Frank James say DNA swab by FBI may have violated his rights

Lawyers representing New York City subway shooting suspect Frank James are suggesting FBI agents may have violated their client’s rights by collecting multiple DNA samples from him without first contacting them.

James has been held without bail since being arrested on April 13, the day after he allegedly set off a smoke bomb and opened fire on a train during the morning rush hour resulting in 10 people being shot and many more injured during the ensuing panic — he was charged in federal court with terrorism on a mass transportation system and faces life in prison if convicted.

Attorneys Mia Eisner-Grynberg and Deirdre von Dornum said in a court filing Thursday that FBI agents went into James’ cell earlier this week and took oral DNA swabs, questioned him and forced him to sign documents, the New York Post reported.

“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,” the letter said.

“By depriving counsel of the ability to be present to witness the procedure, as occurs routinely, they lessened Mr. James’ ability to later challenge the validity of the physical taking of the sample,” the attorneys wrote, adding, “Because the government failed to provide notice to counsel before questioning and searching Mr. James, their practice risked violations of Mr. James’ core constitutional rights.”

The duo further states that they may file a suppression motion asking a judge to exclude that evidence because of the “potential constitutional violations,” according to the Post.

The letter noted that it was common to inform a suspect’s attorney(s) that a search warrant for DNA swabs has been obtained, with the attorneys claiming the government “risked violations of Mr. James’s core constitutional rights under the Fourth, Fifth and Sixth Amendments.”

Federal prosecutors dismissed their concerns as “hyperbole.”

“His DNA was obtained pursuant to a judicially authorized search warrant and no violations of any of the defendant’s constitutional rights occurred in the execution of the warrant,” they said.

Here’s a quick sampling of responses to the story from Twitter:

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