Judge: Tasering a suspect for DNA legal if not ‘malicious’

(RAW STORY)   A judge in Niagra County, New York, ruled Thursday that DNA evidence, obtained only after police applied a Taser to a suspect who refused to provide evidence against himself, may be used by the prosecution because the electric shock was not administered with malice.

Judge Sara Sheldon Sperrazza, with this 17-page decision, becomes “the first judge in western civilization to say you can use a Taser to enforce a court order,” defense attorney Patrick Balkin said, according to The Niagara Gazette.

“Note that if Smith is guilty, he’s a pretty bad guy,” interjected The Buffalo News. “He’s charged with shooting a man in the groin after invading his ex-girlfriend’s home, tying up her two children and forcing her to take her to the home of the man he shot. He’s also charged with the shotgun-point robbery of a Niagara Falls gas station. DNA was found at both crime scenes.”

Smith, according to reports, had previously agreed to a court order for a DNA sample. But when authorities accidentally spoiled the sample, forcing them to return to the judge for a second order Sperrazza issued it without consulting the defense counsel, thinking the defendant would not mind.

“Smith did object, reportedly telling officers, ‘I ain’t giving it up. You’re going to have to tase me,’” added Buffalo News.

“Which they did, after consulting with a prosecutor, who either told them to use ‘the minimum force necessary’ (according to police testimony at last month’s court hearing) or ‘any means necessary’ (according to a police report written the day of the incident).”

After tasing Smith, a DNA swab was taken without consent.

“They have now given the Niagara Falls police discretion to Taser anybody anytime they think it’s reasonable,” Smith’s attorney said, according to a separate report in The Buffalo News. “Her decision says you can enforce a court order by force. If you extrapolate that, we no longer have to have child support hearings; you can just Taser the parent.”

In the decision’s text, Sperrazza cited a Wyoming case in which a judge ruled police acted legally when they tased a man in order to force him to open his hand relative to a search.

“The Court is certainly concerned that the purpose of the Taser was to inflict pain, and has seriously considered the argument of the defendant that a line is crossed when such government action is sanctioned,” she wrote. “This Court would immediately condemn and sanction the actions of the police if there was any indication that the Taser was used maliciously, or to an excessive extent, or with resulting injury. The Court is convinced by the evidence presented that the exact opposite of those factors was present in this case.

“The court would not advice the government to systematically utilize pain compliance as a standard tool in future similar circumstances, because of the intense scrutiny the use of such tactics would receive from this Court. However, this case is perhaps best described as the ‘perfect storm’ where the crimes being investigated were egregious, the evidence sought highly probative, the intrusion was minimal, and with a subject who steadfastly refused to comply with a lawful court Order. Further, the officers, armed with the Order issued, repeatedly sought the subject’s compliance, explored alternative methods of obtaining the sample, repeatedly warned the defendant of the consequences of his refusal and took steps to minimize the pain inflicted and the potential for injury. There was no malice or desire to injure the defendant.”

“Well, this certainly changes the landscape for noncompliance with an order,” socked the blog Simple Justice. “No need to go back to the issuing magistrate for a pep talk about the penalty for noncompliance, just zap ‘em right then and there. Cut out the middleman. There are plenty of aspects of the criminal justice system where this could move things along a little faster. Like maybe just executing defendants upon arrest. Think of the cost savings.”

The judge granted a postponement to August 11 of Smith’s trial on the 24-count indictment. Smith’s lawyer, not expecting Thursday’s ruling, asked for the extension because he had not yet begun having the DNA in question analyzed.

http://rawstory.com/08/news/2009/06/04/judge-tasering-a-suspect-for-dna-legal-if-not-malicious/

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