PUBLISHER'S NOTE: The controversy over the James De Angelo case centers over ethics and privacy issues involved in police access to commercial DNA genealogy services. It raises the question as to how far the police can go to legally access a person's DNA through a commercial service and then match it directly to the individual. My instinct as a criminal lawyer and journalist is that the police and other criminal justice system authorities will go to just about any extent to grab a person's DNA - as the effectiveness of this investigative tool spreads throughout the policing world - and as the Malcolm Querido case, subject of this post, demonstrates. Bravo to Judge Krause for his tough, unequivocal decision rejecting police state tactics. I will be following developments closely.
Harold Levy. Publisher; The Charles Smith Blog.
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QUOTE OF THE DAY: "Throughout the process, Querido challenges the validity of the search warrant for the DNA sample. “This is wrong, bro. Yo, this is wrong, bro,” Querido yells as the correctional officers in riot gear strap his arms and legs to the chair. “You’re all beating me up to get my DNA?” Querido asks. Wayne Salisbury, warden of the Adult Correctional Institutions Intake Center, warns Querido to cooperate, that they need to get the DNA swab from his mouth or they will extract blood instead. After Querido fails to cooperate, Salisbury gives the command and three officers grab his head. “Salisbury, this ain’t right,” Querido says. Later, he can be heard screaming, “Ah, ah, it’s burning!” as he showers to decontaminate himself."
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PASSAGE OF THE DAY: "The video, taken June 22, 2017, at the Adult Correctional Institutions, prompted Superior Court Judge Robert D. Krause to suppress key DNA evidence in Querido’s upcoming murder trial based on “outrageous governmental conduct.” Krause issued the order April 11, striking the buccal swab taken June 22 from Querido, an accused pimp who is charged with stabbing to death Robert J. Bullard, of Medway, Massachusetts, in 2014. “I have seen, as you know, some pretty rough stuff, particularly on this calendar,” said Krause, according to a transcript of the hearing. The judge presides over some of the state’s most violent cases. “And frankly, I have rather thick skin, and I have a high tolerance to that stuff, but yesterday when I saw that video, that was one of the most disturbing clips I have seen in a long, long time. It reflected conduct of law enforcement officers — be they correctional officers, police officers, I couldn’t tell how many they were which, most of them were probably correctional officers ... acting in a most unsettling manner. And I use ‘unsettling’ charitably.” Krause compared the chair seen in the video to “Old Sparky — all that was missing was an electrical cord.”
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STORY: "Judge bars DNA evidence obtained at ACI through ‘unreasonable force and violence,’ by reporter Katie Mulvaney, published by The Providence Journal on April 28, 2018.
GIST: "A video shows murder suspect Malcolm
Querido as correctional officers use pepper spray to subdue him, strap
him to a chair and forcibly take a DNA sample from his mouth. The video shows
at least three correctional officers wearing gas masks, gloves and
carrying shields as another pumps pepper spray into an inmate’s cell,
leaving an orange-tinted residue clinging to the walls. The
officers then handcuff and shackle the inmate, 31-year-old Malcolm
Querido of North Providence, drag him from his cell, strap him to a
chair and forcibly hold his head as a Providence detective extracts a
DNA sample from his mouth. Throughout the process, Querido
challenges the validity of the search warrant for the DNA sample. “This
is wrong, bro. Yo, this is wrong, bro,” Querido yells as the
correctional officers in riot gear strap his arms and legs to the chair. “You’re all beating me up to get my DNA?” Querido asks. Wayne
Salisbury, warden of the Adult Correctional Institutions Intake Center,
warns Querido to cooperate, that they need to get the DNA swab from his
mouth or they will extract blood instead. After Querido fails to
cooperate, Salisbury gives the command and three officers grab his head. “Salisbury, this ain’t right,” Querido says. Later, he can be heard screaming, “Ah, ah, it’s burning!” as he showers to decontaminate himself. The
video, taken June 22, 2017, at the Adult Correctional Institutions,
prompted Superior Court Judge Robert D. Krause to suppress key DNA
evidence in Querido’s upcoming murder trial based on “outrageous
governmental conduct.” Krause issued the order April 11, striking the buccal swab taken June
22 from Querido, an accused pimp who is charged with stabbing to death
Robert J. Bullard, of Medway, Massachusetts, in 2014. “I have
seen, as you know, some pretty rough stuff, particularly on this
calendar,” said Krause, according to a transcript of the hearing. The
judge presides over some of the state’s most violent cases. “And
frankly, I have rather thick skin, and I have a high tolerance to that
stuff, but yesterday when I saw that video, that was one of the most
disturbing clips I have seen in a long, long time. It reflected conduct
of law enforcement officers — be they correctional officers, police
officers, I couldn’t tell how many they were which, most of them were
probably correctional officers ... acting in a most unsettling manner.
And I use ‘unsettling’ charitably.” Krause compared the chair seen in the video to “Old Sparky — all that was missing was an electrical cord.” “This
court finds, unreservedly, that resorting to the use of noxious pepper
gas spray, coupled with the subsequent and unreasonable force and
violence by several officers to extract the buccal swab, should have and
easily could have been avoided by the state simply filing with the
court a motion ordering the reluctant defendant to submit peaceably to
buccal swabbing. If the defendant thereafter failed to submit peacefully
as ordered, the state merely had to seek a contempt order, and the
defendant would have been ordered to a medical facility within the ACI
to have the swabbing (or blood drawing, as also allowed in the search
warrant) ... accomplished,” Krause wrote in his April 11 order. Querido’s trial has been placed on hold as the state attorney general’s office appeals Krause’s ruling to the state Supreme Court. Prosecutors stand behind the correctional officers’ action. A felon
with a long criminal record, Querido has previously been convicted of
robbery, felony assault and drug possession. “The state believes
that the Department of Corrections’ administration of the buccal swab
was constitutionally proper in all respects, and will ask the Supreme
Court to reverse the trial court’s contrary determination,” Amy Kempe,
spokeswoman for the office, said in an email. Special Assistant Attorney General Joseph McBurney emphasized April
11 that the officers’ actions came only after Querido refused to comply
with an earlier warrant and, on June 22, refused to exit his cell.
Prosecutors told the court that he had tried to bite correctional
officers. The state Department of Corrections declined to identify the officers involved through spokesman J.R. Ventura. Asked
about department policies regarding the frequency and manner of
administering pepper spray (which officers referred to in the video as
the “cell buster”), Ventura gave this email response: “The AG’s office
is the agency handling this matter, in order to preserve the integrity
of the judicial process, we defer to them regarding future inquiries. As
to your other questions, in order to maintain proper safety and
security, those procedures are not under public policies. Those security
measures are in place to ensure the safety and security of our staff as
well as the inmates.” The Journal has filed a request under
state Access to Public Records law seeking a copy of the video.
Querido’s lawyer, Judith Crowell, allowed a Journal reporter to view the
video this week. Richard Ferruccio, president of the
correctional officers union, said he wasn’t aware of the case. “My
officers do what they’re told to do — within reason,” he said. Crowell,
who is joined in representing Querido by Ronald C. DesNoyers, expressed
outrage after Assistant Attorney General Jay Sullivan asked Krause to
give the prosecution time to seek a fresh warrant for the “critical” DNA
evidence. “I think what was shown on the videotape of the
extraction ... is absolutely outrageous and dehumanizing and inhumane
conduct on the part of the officers involved,” Crowell said April 11.
“It seems to me, your honor, that the court’s decision to suppress the
buccal swab was entirely appropriate and should not be reconsidered.”
The entire story can be found at:
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/c