Justin J. McShane

Justin J. McShane
Born	(1976-10-08) October 8, 1976 Silver Spring, Maryland, U.S.
🎓 Alma mater	Franklin and Marshall College, Penn State University, Dickinson School of Law
💼 Occupation	criminal defense lawyer
Known for	High Profile Forensic Science Criminal Defense Trial Attorney
🌐 Website	The McShane Firm-The Science Attorneys

Justin J. McShane (Born October 8, 1976 in Silver Spring, Maryland) is an American criminal defense attorney, author, and nationally recognized educator. He is a trial attorney who specializes in using forensic science in defending citizens accused by the Government. He is nationally known and well-regarded for being a skilled and fierce litigator, but is also well known for his strong understanding and in-depth knowledge in all forms of forensic science. He is a litigating attorney for the Pennsylvania Innocence Project. He has earned Board Certification both in Driving Under the Influence Defense Law by the National College for DUI Defense and as a Criminal Trial Advocate by the National Board of Trial Advocacy, a Pennsylvania Supreme Court Approved Agency.

Early Years

He grew up as the oldest of two sons to Brendan McShane and Barabra Vonderhaar McShane in Bethesda, Maryland. He attended and graduated from Georgetown Preparatory School. He graduated from Franklin and Marshall College. He was a Division I wrestler starting at 118 pounds his Freshman Year. He graduated from Penn State University, Dickinson School of Law

Early Legal Career

He started his legal career as a Certified Legal Intern at the Dauphin County Public Defender's Office. He tried six cases to verdict before he graduated law school while working there. After graduation and passing the bar, he was a full-time Assistant Public Defender in Dauphin County. His most famous case was that of the Middletown Christmas Eve Triple Homicide death penalty case involving Ernest Wholaver and his brother Scott Wholaver.

Achievements & Awards

He has also earned certification in Forensic Sobriety Assessment, the first attorney to do so in the nation. He is a Sustaining Member, A State Delegate, and National Regional Coordinator with the NCDD. He is the 2012 NCDD Dean’s Award recipient. He is a frequent invited guest lecturer at national, state and local seminars that are attended by prosecutors, police, investigators, lawyers, judges, academics, scientists and policy-makers. He has been accepted as a speaker four times at the ACS National Meeting and has presented four times at the American Academy of Forensic Sciences (AAFS) national meetings (2011, 2012, 2103 and 2014). He was named a Fellow with the American Institute of Chemists. He has been named a Senior Assistant Chromatography Instructor by the American Chemical Society. He serves as the co-chairman of the Forensic Science section of the American Chemical Society-Chemistry and the Law Division. He is the Chairman/CEO of The McShane Firm, LLC, a six attorney criminal defense and DUI law firm.

Publications

In addition to his numerous legal publications, Attorney McShane manages two popular law blogs: PA DUI Attorney Blog The Truth About Forensic Science

He has published chapters in the following books:

Understanding DUI Scientific Evidence 2012 Edition (5 Chapters)

Understanding DUI Scientific Evidence 2011 Edition (2 Chapters)

The Legality of Search and Seizure in DUI Cases 2012 Edition

He has published articles with the following organizations

The South Carolina Bar Association

Tennessee Criminal Defense Lawyers Association

Texas Criminal Defense Lawyers Association

Major cases

• Commonwealth v Schildt: In this important case, Dauphin County Judge Lawrence F. Clark ruled that the current calibration methods for Pennsylvania breath testing machines leave the devices inadequate to measure samples outside of the range of 0.05% to 0.15%. The ruling opens the door for thousands of the Highest BAC (over 0.16%) cases to be reviewed. He further ruled that the Intoxilyzer 5000EN breath machine may no longer considered reliable or admissible. This ruling resulted in Pennsylvania State Police halting the use of breath testing statewide in favor of blood testing.
• Lebanon County Blood Testing Ruling: A ruling signed by all four judges of the Court of Common Pleas in Lebanon County stated that the blood testing procedure used at Good Samaritan Hospital (GSH) was not acceptable to the court because it deviated from the instructions set forth by the manufacturer of the equipment. In response, Lebanon County District Attorney announced that it would discontinue blood testing at GSH and instead send all blood samples to the state crime lab in Harrisburg for testing.
• Co-authored with Leonard Stamm, Esquire and Ron Moore, Esquire, the successful joint National College for DUI Defense, Inc. and National Association of Criminal Defense Lawyers’ amicus curiae brief to the Supreme Court of the United States in the case of Bullcoming v. New Mexico 09-10876. On June 23, 2011, the Supreme Court of the United States sided with Bullcoming and the amicus brief issuing a sweeping opinion that affirmed the arguments presented by Bullcoming and amici counsel creating “The Particular Witness Rule.”
• Commonwealth v. Yohe (--A.3d--) The Pennsylvania Supreme Court has accepted for review the case of Commonwealth v. George Yohe. The particular witness from NMS Labs who physically conducted the analysis of the blood of the accused for BAC was not present for trial, but only the PhD who reviewed the data generated by the particular witness appeared to testify. Attorney Dorward of the McShane Firm, LLC timely objected making a complete proffer to preserve the Confrontation Clause error being careful to both federalize the objection as well as raise independent state grounds. The trial court overruled the objection and allowed solely the surrogate to testify in lieu of the particular witness. Despite his best efforts, the Jury disagreed with Attorney Dorward at trial and returned a guilty verdict. Attorney Dorward again asserted error in a well-written post-sentencing motion and accompanying memorandum. Upon review of the testimony elicited and the arguments presented, the trial court agreed there was a violation of Confrontation. Despite the binding precedent of Commonwealth v. Barton-Martin, the trial court ordered a new trial as the remedy. Knowing that remedy to be in error in that the proper remedy under Barton-Martin was vacating and discharging the defendant of the conviction, Attorney Dorward filed a motion for reconsideration with the trial court for the remedy. That petition was denied. The government sought appeal of the grant of the new trial. Thus, the government became the appellant. The McShane Firm, LLC became the appellee. After receiving briefs and hearing oral argument, a three justice panel of the Superior Court disagreed with the trial court and overturned the grant of the new trial. In essence, the three justice Superior Court, in a published opinion, held the testimony of the surrogate was sufficient Confrontation for the appellee. Attorney Dorward enlisted the help of Attorneys Josh Auriemma and Justin J. McShane to perfect a petition for allocator to the Pennsylvania Supreme Court which was granted. The case was reviewed. The Superior Court decision was upheld. The matter is now pending before the United States Supreme Court pending certiorari.
• Commonwealth v. Curtis Williams (--A.3d--) Mr. Williams was acquitted by a jury of the charge of criminal attempt homicide, but guilty of the charge of Aggravated Assault. The defense theory of the case was that the alleged victim was the aggressor, and Mr. Williams was acting in his own self-defense and in defense of his two young children when the much larger able body alleged victim engaged in road rage. The trial court granted the Commonwealth’s pre-trial motion to preclude the defense from introducing evidence that the alleged victim was drunk (BAC of 0.15) and driving while drunk. A sharply divided panel (2-1) of the Superior Court agreed with the trial court. In a rare move, the Superior Court granted an en banc review of the panel’s decision. Less than 20 cases per year are accepted for en banc review by the Superior Court.
• Commonwealth v. Karns 50 A.3d 158 (2012) Mr. Karns was found guilty of DUI Highest Rate (BAC above .16%) by the trial court upon evidence from an enzymatic-based blood test that reported his BAC to be .189%.

At trial the Bedford County District Attorney’s Office presented Christine Ickes, the medical lab scientist from the UPMC Bedford Memorial Hospital who prepared and analyzed Mr. Karns' blood sample. As the test was done on non-whole blood, a conversion factor accepted by the scientific community must be presented under Pennsylvania Law. The prosecution did not present any evidence of a conversion factor. During his cross-examination, Attorney McShane exposed the lack of a whole blood conversion factor before the trial court.

The Superior Court of Pennsylvania reviewed the appeal and found that without a valid conversion factor, the evidence presented by the Commonwealth was insufficient for the per se conviction and overturned the conviction for the charge of DUI- highest rate of alcohol.

The holding of the court was as follows:

• Supernate is not whole blood;
• Simply having a witness say it is whole blood is not "good enough" no matter how many times they insist that it is;
• Any form of non-whole blood expression for BAC must be converted back to whole blood;
• Saying there is a conversion factor automatically or somehow is not good enough;
• A dilution factor is not a conversion factor; and
• Absent an expert (or admissible testimony) as to conversion, there is insufficient evidence to support a per se based conviction for DUI)

• Commonwealth v. Jennifer Barton Martin (5 A.2d 363, 2010 PA Super 163, certiorari denied) The Superior Court of Pennsylvania, a three judge panel with no dissenting opinions held that the Supreme Court of the United States opinion in Melendez-Diaz applied even though the accused subpoenaed the technologist and the phlebotomist presenting both in our case-in-chief. The clear ruling states the following:

1. Melendez-Diaz is retroactively applied.
2. Under Federal Constitutional Confrontation Clause rights, the Commonwealth during its case-in-chief must call the analyst. It expressly overruled Carter and Kravontka which were our state’s previous precedent.
3. Failure to do #2 even if the defense in its case calls the analyst, does not cure Confrontation violation.
4. A result is not a new trial, but vacating of the conviction with jeopardy.

The Court ruled as follows: “Because the Commonwealth did not summon at trial the analyst who prepared Appellant’s lab report, we conclude that Appellant’s rights under the Confrontation Clause were violated and that the lab report showing her blood-alcohol content was inadmissible. Without that evidence, Appellant’s conviction under § 3802(c) cannot stand and we therefore vacate her judgment of sentence as to that offense.”

• Commonwealth v. Angel Valle-Valez (995 A.2d 1264, 2010 PA Super 99) The Superior Court of Pennsylvania held as a matter of first impression, spousal privilege applied to testimony of defendant's wife, even though the couple had separated, no longer held themselves out to be married, and had filed for divorce, and spousal privilege is not limited to confidential communications. Defendant was the “lawful spouse” of his estranged wife, for purposes of spousal privilege, even though defendant and his wife had separated, no longer held themselves out to be married, and had filed for divorce, and defendant's wife had become engaged to another man; filing of divorce complaint did nothing to affect the marriage under the law absent entry of divorce decree, and plain statutory language would not be disregarded in pursuit of the spirit of the privilege. A spouse does not waive the spousal privilege by sharing the nature of the information with third parties. Where the spousal privilege applies, the witness may refuse to testify and may not be compelled to take the stand. Spousal privilege is not limited to confidential communications
• Commonwealth v. Christina Houtz (982 A.2d 537; 2009 PA Super 186) The Superior Court of Pennsylvania held that in a sex offender case that a blanket probation condition that prohibited defendant from possessing or having access to a computer, or otherwise accessing the Internet, was unduly restrictive and unreasonable, in prosecution for corruption of a minor and indecent assault; there was no evidence that defendant's offense was facilitated by or incorporated the use of a computer or the internet.
• Commonwealth v. Justin Tobery (908 MDA 2009) The Superior Court of Pennsylvania held that a two vehicle accident involving serious bodily injury of the other motorist on an icy road where the officer noticed an odor of alcohol alone with no other indicia of intoxication present was insufficient probable cause to arrest for a DUI.
• Commonwealth v. Darius Jeffries (579 Pa. 539, 857 A.2d 671) the Pennsylvania Supreme Court granted allocator for argument in this case.
• Commonwealth of Pennsylvania vs. Shawn Seif: (1265 MDA 2002) Shawn Seif was charged with Resisting Arrest, Disorderly Conduct and Obstruction of Justice. Factually, he lived in a multi-unit apartment complex with a locked front door. The police received a 911 hang-up call from an alleged domestic assault involving a unit other than Mr. Seif’s. The police arrived at the locked front door and commanded that Seif open it. Seif denied them entry. He was arrested. Despite our best efforts both in pretrial motions and during trial, all pretrial motions to dismiss were denied and he was convicted by a Jury of all charges. Upon appeal, in an unpublished opinion of a panel of the Superior Court of Pennsylvania, the conviction was overturned and the case was discharged. The panel of the Superior Court agreed with Attorney McShane’s original position that the charges were not proper to begin with- in that: (1) the private common room hallway where the alleged Disorderly Conduct occurred was not a public place which is an essential element to support a Disorderly Conduct charge; (2) failing to open a door upon a police command is not an affirmative act as is necessary to sustain a conviction for Obstruction of Justice charge; and (3) a refusal to turn around and put his hands behind his back was not Resisting Arrest.
• Commonwealth v. Tamika Jones (845 A.2d 821, 2004 PA Super 28) The Superior Court of Pennsylvania held that knowledge on part of police officer who stopped defendant's vehicle, that an individual had complained that a vehicle matching the description of defendant's vehicle and license plate number was involved in “drug activity,” was insufficient to serve as basis for a reasonable suspicion of criminal activity; officer did not observe any conduct by defendant that would corroborate tip provided to dispatcher, and tipster did not provide any information about individuals allegedly involved in “drug activity” or specify what the “activity” was. Allowing Commonwealth to call as witness the informant whose tip led to stop of defendant's vehicle would not have satisfied Commonwealth's burden, in opposing motion to suppress evidence obtained during that stop, of establishing existence of reasonable suspicion; defendant did not contest the content of information provided, but rather whether the information itself was sufficient to serve as basis for reasonable suspicion.

External links

• The McShane Firm-The Science Attorneys
• The Truth About Forensic Science Blog
• The Pennsylvania DUI Blog
• Have Science Will Travel

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