One of the primary responsibilities of police following an arrest is the preservation of evidence.  You would think they would be pretty good at it.  And indeed, they usually are.  After all, without evidence, the prosecution has a problem and the bad guy goes free.  For this reason, when the police fail to preserve evidence, it must be presumed that something is seriously wrong.

In the case of Ronald Carter, a former Milwaukee city employee with a history of burglaries, something went very wrong.  From the Journal Sentinel, Det. John Behning had some ‘splaining to do:

Specifically, Behning let the city crush the defendant’s car. The off-duty officer had fired up to nine shots at the gold 2001 Kia Rio – striking the driver twice in the hand – after the cop said he confronted the defendant alone in his garage after dark. The off-duty officer said he was acting in self-defense.

Behning, the lead detective in the case, told the judge it slipped his mind that he had OK’d the release of the vehicle. He also forgot to mention this fact during more than two dozen conversations with a couple of prosecutors over 1 1/2 months.

“That’s definitely some egg on my face,” Behning conceded at the December court hearing.

Egg on his face, not to mention a variety of other body parts.  Carter’s lawyer, Eric Brittain, has requested all evidence, and had tried to set up a time to inspect the vehicle.  He even went to the impound yard, where he waited for an hour and a half to see the car, before finally being told that it had been crushed more than a month and a half earlier.  No word on whether anybody told Brittain they were sorry for wasting his time,

It might seem that Behning did the right thing by taking the stand and conceding that it was all his fault.  Except that Behning made it out to be just one big, silly mistake.  So what if he had been meeting with prosecutors all along, this being a significant case where the defendant was shot by an off-duty officer, and where the defendant’s position was that the cop made up the story of the burglary post hoc to justify the shooting of a black man by a white cop late at night.

What was rare was that the judge, Jean DiMotto, not only didn’t buy the Behning’s golly-gosh routine, but ripped him a new one in her decision dismissing the case:

“The Court determines that MPD’s concealment of the car’s release and destruction over a period of six weeks with affirmative misrepresentations to both the State and the defense is not only egregious but permits the conclusion that MPD through Det. Behning knew of the potential exculpatory value of the car,” DiMotto wrote in December.

The veteran judge didn’t stop there.

DiMotto accused Behning, his superiors and the Police Department of acting “in bad faith” by giving up custody of the car and not telling anyone for weeks. She added: “The egregiousness of the violation, demonstrated by its lengthy continuing concealment with accompanying misrepresentations, warrants dismissal.”

Despite efforts by the prosecution to get Judge DiMotto to tone down her decision, as this would follow the good Detective for some time to come, undermining his credibility and providing some great cross-examination fodder (remember, credibility is always material), the judge stuck to her words.  For all those times when courts bend over backwards to tread lightly on police misconduct to avoid subsequent taint, Judge DiMotto was having none of it in this case.  Behning deliberately destroyed evidence, concealed it, lied about it, and knew it would be exculpatory to the defendant.  The judge wasn’t cutting Behning a break.

Great story about official misconduct and justice served, right?  Well, yeah, but the story isn’t over yet.

Brittain repeatedly leveled strong allegations against prosecutors and police in the case. After a heated exchange, he even asked DiMotto to remove herself from the case because he believed she couldn’t be fair to his client. Two days later, she tossed the criminal charge against Carter.

In an interview, the defense attorney said he stood by what he said in court and his filings.

If ever there was a case where “strong allegations” seem warranted, if not mandated, this would be it.  This case was ugly and nasty, with Det. Behning’s “honest mistake” claim and the defense counsel’s response that the cops are covering for one of their own.  Indeed, that certainly seems to be the upshot of Judge DiMotto’s decision.  If Brittain used strong language, he was in good company as the judge did as well.

Apparently, while the court felt strongly about Behning’s destruction of evidence, Judge DiMotto reserved the right to herself.

But that may end up costing [Brittain].

Last month, the judge filed a complaint against Brittain with the Office of Lawyer Regulation, the disciplinary arm of the Supreme Court, accusing him of “unprofessional and contumacious” conduct in her court. Her complaint says the bailiff in her courtroom even asked whether he should arrest the defense lawyer if he kept up his bad behavior. Brittain maintains he was simply acting as a zealous advocate for Carter.

The article fails to offer any specifics about what Eric Brittain said or did that evoked such extreme ire in Judge DiMotto.  Was it the accusation that the cops were lying? Covering up?  It seems hard to imagine, given that the judge’s decision said so as well.  Was it that Brittain moved for the judge’s recusal, presumably because he believed that she would not be impartial?  Isn’t that why the law provides for recusal?

It might be that Eric Brittain spoke too loudly, or used particular words that were inappropriate and offensive to the judge.  It could be that he was order to shut up and didn’t.  It could be any number of things that could give rise to a legitimate referral, though one might wonder whether the defense attorney, in a case as egregious (the judge’s word) as this, might be given a little extra latitude for outrage.

On the other hand, it doesn’t appear that Judge DiMotto referred Det. John Behning to the district attorney for prosecution for perjury. 

H/T Packratt at Injustice Everywhere