No Proof, But No One To Blame

Stercus Accidit. Hurricane Sandy swept through Red Hook, and contrary to the neocon pundits on twitter, it wasn’t Obama’s fault. Or Police Commissioner Ray Kelly’s. Or District Attorney Cy Vance’s. Sure, they might have chosen a more protected location than Red Hook, right on the water in Brooklyn, but it was a great choice but for Sandy.  The days of keeping evidence in a hermetically sealed mayonnaise jar are over.

And so the evidence is ruined or otherwise unavailable.

Perched on a narrow crook of land jutting into New York Harbor, the Erie Basin auto pound and evidence warehouse seems a logical place to store hundreds of seized cars, thousands of guns and 9,846 barrels of evidence containing sensitive DNA material.

As Hurricane Sandy lashed the city, the surge breached the warehouse’s roll-top doors and hurtled hundreds — perhaps thousands — of its barrels into the wet muck. The storm wreaked similar havoc at another Police Department warehouse by the water, along Kingsland Avenue in Greenpoint, Brooklyn.

Eventually, evidence is needed in court. Then what?

In at least six criminal trials in recent weeks, a police official has had to testify that evidence was inaccessible, but still existed, said Paul J. Browne, the chief spokesman for the Police Department.

The natural assumption is that without evidence, there can be no conviction. But then, natural assumptions have no place in the courtroom.  In the trial of Manuel Castro, the court allowed testimony about the evidence that couldn’t be produced, and that was enough to obtain a conviction.  If the evidence existed or was available, this testimony would never have been permitted.

A curious phenomenon occurs when a case goes to trial and the proof ends up not being quite what the prosecution would prefer.  Rather than adhere to the same set of stringent evidentiary rules that apply to evidence in hand, firm rules get wavy, blurry, and allowances are made that would never be considered under other circumstances.  The demands of reliability suddenly aren’t quite as important as they were the day before, and fuzzy proof pervades the trial.  It’s true of testimony when witnesses can’t remember. And it’s happening with physical evidence that was once purportedly conclusive but now can’t be produced.

The option for the court is unpleasant.  Dismissal for lack of good evidence could mean that thousands of defendants walk, even though some, perhaps most, are guilty.  No judge wants to unleash thousands of criminals on the streets, both for good reasons and bad.  Bear in mind that these are not necessarily good people, and to let them walk is to expose others to harm and danger.

It would be one thing if the cops or prosecutors were at fault for the problem.  If so, they would bear responsibility for what followed. But there is no one really blameworthy here, removing the taint that would ease the shift of responsibility onto the shoulders of the prosecution.

Yet, that does nothing to help the defense.

Evidence for a coming rape trial in Manhattan — the so-called rape kit — had been stored at the Greenpoint location, the defense lawyer in the case said. The lawyer, Edward V. Sapone, said prosecutors told him that the kit might have been damaged in the storm.

Mr. Sapone said he had been concerned because he believed the evidence stored inside would help prove his client’s innocence.

It turned out that one element in the kit — a pubic hair — had not been at the warehouse during the storm because it was being tested.

The pubic hair didn’t match the defendant, and the Sapone got word that the case would be dismissed.  Sometimes, evidence doesn’t prove guilt, but that can only happen when it exists and is put through the rigors of scrutiny.  When physical evidence becomes only what it’s presumed to be at the outset, it always proves guilt because that’s what the cops and prosecutors say it does. 

Ironically, the New York Police Department is turning to New Orleans, which suffered a similar problem during Hurricane Katrina, New Orleans is noted for its concern for constitutional rights and the efficacy of its criminal justice system, the only drawback being that no one down there appears to have  much familiarity with law.  And this is where New York is turning for aid and comfort?

Mounds of waterlogged evidence bags continue to cause headaches in New Orleans more than seven years after Hurricane Katrina, pointing to the difficulty of preserving DNA evidence after flooding.

“If you don’t keep it properly stored, you’re affecting somebody’s life,” said Robbie Keen, who directs a federally financed DNA project in New Orleans that is still trying to recover evidence.

Ms. Keen said some of the damaged biological evidence from Hurricane Katrina had been successfully tested, but some had been lost.

This doesn’t appear to offer much by way of answers, though it raises some interesting questions: Are formerly waterlogged DNA samples really still viable, or are they making do with samples that would otherwise be deemed useless or tainted?  Worse still, as it’s seven years later, what of the defendants who are hanging out awaiting word of their evidence?  And this is where New York is getting its wisdom?

Steven Banks, attorney in charge of the Legal Aid Society called this a “recipe for wrongful convictions” and plans to appeal the admission of testimony about lost evidence in the Castro case.  But it’s just one of potentially thousands, and that’s an awful lot of room for bad things to happen.  Banks notes that pleas are being offered in cases where the evidence is gone.

In New York State, evidence in criminal cases is not presented until a trial begins. And if a plea bargain is offered and accepted beforehand, it is not presented at all.

“The government may well be fashioning plea deals based upon the lack of underlying evidence,” Mr. Banks, of Legal Aid, said. “We can ask if it’s there, but they don’t have to tell.”

It’s unclear why Banks says this, but it strikes me that Brady requires the prosecution to inform the defense that it cannot produce physical evidence at trial, and that failure to do so would render a plea involuntary, unintelligent and unknowledgeable.  But then, if courts are willing to admit testimony about evidence in lieu of the evidence itself, it’s hard to imagine any judge will get any more worked up about Brady violations than they did before.

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