Prosecutors says alleged Brooklyn subway shooter’s DNA was obtained through authorized search warrant

By Mark Morales, CNN

Prosecutors are pushing back against allegations that the accused Brooklyn subway shooter‘s constitutional rights were violated when FBI agents took DNA samples from him, according to court fillings.

Federal public defender Mia Eisner-Grynberg said FBI agents entered Frank James’ cell at the Metropolitan Detention Center in Brooklyn on Tuesday and took multiple oral swabs of his DNA, according to a letter sent to US Magistrate Judge Roanne L. Mann.

The agents also asked him questions and had him sign several documents, according to the letter.

In response, federal prosecutors defended the legality of the FBI’s interaction with James, saying in a Thursday court filing that the DNA samples were obtained through a judicially authorized search warrant.

“No violations of any of the defendant’s constitutional rights occurred in the execution of the warrant,” prosecutors wrote in the filing to Mann.

The prosecutors also noted that the affidavit supporting the search warrant to obtain DNA was filed publicly on April 22, which was also the day they submitted their application to a judge. The filing was also available to the defense and the public at that time, prosecutors said.

Further, prosecutors said that the assertion that officials elicited statements from James while they obtained his DNA was “inaccurate” and said that they did not direct him to sign any documents.

The FBI declined comment, as did the US Attorney for the Eastern District of New York, where James was charged.

James has not entered a plea

James is accused of setting off smoke grenades and firing a handgun 33 times on a crowded N train traveling toward the 36th Street station in Brooklyn’s Sunset Park neighborhood on April 12. The attack left 29 people injured, including 10 who were shot, officials said.

James, 62, did not enter a plea on charges of violating a law that prohibits terrorist and violent attacks against mass transportation.

Eisner-Grynberg wrote that neither she nor the other lawyers representing James were informed ahead of time about the FBI taking his DNA samples.

“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,” Eisner-Grynberg said in the letter.

Eisner-Grynberg, who declined to comment on the letter, wrote that attorneys found out about what happened from James and had to ask the FBI for copies of what he signed.

Attorneys had only received a copy of the search warrant after it was carried out, according to Eisner-Grynberg.

“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,” she wrote in the letter.

“This serves as a safeguard to protect the rights of represented defendants. 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 under the Fourth, Fifth and Sixth Amendments.”

Eisner-Grynberg is asking for any documents related to the search warrant, copies of anything James signed and the sum and substance of any statements he made, according to the letter.

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