Alleged New York City subway gunman Frank James improperly searched, defense lawyers say

Federal agents improperly questioned alleged New York City subway shooter Frank James this week, directed him to sign certain documents and took multiple swabs of his DNA, defense attorneys said in a court filing Thursday.

James, 62, allegedly set off a smoke grenade on a Manhattan-bound N train approaching 36th Street in Sunset Park, Brooklyn, before opening fire and shooting 10 people in what police called the worst disruption to the commute in New York since the Sept. 11 attacks.

On Tuesday, without alerting his lawyers, FBI agents entered his cell at the Metropolitan Detention Center in Brooklyn "questioned him, took multiple buccal swabs of his DNA, and directed him to sign certain documents," according to a letter to the court from Mia Eisner-Grynberg and Deirdre von Dornum of the Federal Defenders of New York.

"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. The agents did not provide Mr. James with a copy of the warrant or a receipt, in violation of Federal Rule of Criminal Procedure," the letter said.

The attorneys said the government failed to explain why it deviated from standard procedure and only provided a copy of a search warrant when the attorneys asked after the fact. They accused the government of violating James' constitutional rights.

The government defended itself Thursday, saying it was authorized and within its rights in its interactions with James.

"Contrary to the defendant’s 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," a letter from the DOJ to the Eastern District of New York said.

The DOJ said the search warrant for the DNA swab samples was filed publicly on April 22. It also said it didn't force James to sign any documents nor did officials question him.

It is the government’s understanding that in the brief period required to take the buccal swab samples, the defendant was not questioned by and made no relevant statements to the law enforcement officers who executed the searchwarrant," the DOJ letter said. "The executing law enforcement officers also did not direct the defendant to sign any documents."

The U.S. Attorney's Office for the Eastern District of New York, which has charged James with one terror-related count, declined to comment.

The defense attorneys said they would seek to suppress whatever statements James made to the agents this past Tuesday and asked the judge to order the government to turn over a copy of the affidavit that served as the basis for the search.

ABC’s Aaron Katersky reports: