Jeff Deskovic

New York State Should Pass A
Standardized Evidence Preservation Law

Many states, including New York, lack a standardized evidence preservation law which would require authorities to preserve evidence. us, for the wrongfully convicted, the first obstacle to proving innocence, if they are lucky enough that there is even DNA to test in their case, is whether or not the evidence has been preserved, or if it has been lost or destroyed. If it has been destroyed, then the wrongfully accused
remains in prison, unable to prove his innocence, and with no legal remedy. Recently, Colorado’s Gov. Bill Ritter signed a law mandating evidence preservation.

The details are taken from The Coloradoan:

A new state law prompted in part by the Timothy Masters case requires police and prosecutors to preserve DNA evidence for as long as convicts of serious crimes remain alive. The law also establishes a special commission to review and investigate the state’s evidence-preservation laws and policies, and report back to the Legislature. “This law is a major step forward for justice in Colorado,” said Rebecca Brown, a policy analyst with the Innocence Project, which lobbied for the bill. “This evidence can provide clear answers to lingering questions about innocence or guilt.”

Previously, there was no statewide law setting standards for preserving DNA evidence. e New York-based Innocence Project has
documented 216 DNA-based exonerations nationally, not including Masters.

Larimer County District Attorney Larry Abrahamson said his office has had such a policy for at least the 37 years he’s been in that office. Colorado law permits convicts in serious cases to appeal their sentences at any time following their conviction, meaning prosecutors would need to hold onto the evidence until there’s no chance a defendant will appeal. “It’s been the procedure we’ve followed,” Abrahamson said. “It’s been in place as long as I’ve been with the office, and I’ve been with the office for 37 years.”

Masters was convicted in 1999 of the 1987 fatal stabbing and mutilation of Peggy Hettrick in Fort Collins. His conviction, based largely on circumstantial evidence, was overturned in January after DNA recovered from the original crime scene was tested with new techniques,
revealing a new suspect. Following Masters’ conviction, police and prosecutors were under no legal obligation to preserve the clothing and items collected from Hettrick. at evidence was retained, however, by prosecutors and police, per the longstanding policy, and a DNA pro le was created by a Dutch lab at the request of Masters’ defense team, then confirmed by state experts.

The new law, House Bill 1397, requires DNA evidence to be preserved for the life of the defendant, in the case of an indeterminate sentence. DNA evidence collected during an investigation in which no charges are brought would be preserved for the length of the statute of limitations on the crime. The bill also sets out clear procedures for retaining and destroying evidence, and notifying defendants when police or prosecutors propose to destroy it. “This law will create an automatic duty to preserve evidence,” Brown said. “The retention of this evidence is critical to proving someone’s innocence.” State Rep. Randy Fischer of Fort Collins co-sponsored the legislation, and said Masters’ plight brought the situation to the Legislature’s attention.

Fischer said. “This bill was brought in part because of the Timothy Masters case. It’s a good step forward, and we have a responsibility ... to make sure the evidence is properly handled.” Brown said the lifetime retention policy for serious crimes is important because convicts
who serve out their prison sentence are often required, upon release, to register as sex offenders or remain on probation or parole. Retaining the evidence means those people can clear their names even after completing their prison sentence, she said. “The collateral consequences
of a conviction can be felt much longer than the actual incarceration,” she said.

Abrahamson, in light of Masters’ release, announced a review earlier this year of any serious convictions won by his office in which new DNA testing techniques could prove helpful. The review of such cases stands at about 20, and Abrahamson said his prosecutors continue
reviewing the files.”

The Demonstrated Need For A Standardized Evidence Preservation Law

There are many examples of the need for such a law. Marvin Anderson was exonerated in 2002 after serving 15 years in prison in Virginia, and 4 years on parole for a rape he didn’t commit. The Innocence Project accepted Anderson’s case in 1994, and initial searches for biological evidence were unsuccessful.

Anderson’s Innocence Project attorneys were nearly ready to give up hope when a swab from the rape kit was discovered in the files of a lab analyst so meticulous that she preserved samples in her notebooks – a practice that didn’t follow her lab’s policy but that eventually led to proof of Marvin Anderson’s innocence.

After Anderson was proven innocent and exonerated, Virginia Gov. Mark Warner ordered the state lab to systematically test evidence from ten percent of more than 300 cases from the files of Mary Jane Burton, the analyst whose unorthodox policy led to Anderson’s exoneration. DNA tests were performed in 31 cases, including 29 where convictions had been secured, and two more men – Willie Davidson and Phillip Thurman – were exonerated. Burton’s files have now been involved in five exonerations in all, and a review of all of her files is ongoing.

New York has not been exempt in the lack of an evidence preservation law. It has been a factor in continuing injustices. Alan Newton served 21 years for a rape which he was exonerated of by DNA. According to The Innocence Project, Newton first requested post-conviction DNA testing on August 16, 1994. The Court denied his request on November 3, 1994, because the kit could not be located. In 2005, at the request of the Innocence Project, the Bronx County District Attorney’s Office asked the Property Clerk Division to conduct a search for the victim’s
rape kit, despite claims made by offi-cials at the Property Clerk’s Office over the course of eleven years that the kit could not be located and was presumed destroyed. In November 2005, the kit was found after a physical search of the evidence barrels at the Pearson Place, Queens warehouse. The rape kit was found in the same barrel that was indicated on the evidence voucher. This mishap resulted in Newton serving an
additional 12 years.

Anthony Capozzi was wrongfully convicted of rape and served 20 years before being exonerated by DNA. The following account of Capozzi’s case, and exoneration, are taken from The Buffalo News: “Capozzi went before the Parole Board five times, but his refusal to admit to the rapes had led to his being denied parole. The path to Capozzi’s vindication began as detectives on the Bike Path Rapist Task Force, who helped catch Sanchez, came across Capozzi’s case as they pored over paperwork from old rape investigations.

The case caught their attention because the rapes Capozzi was accused of committing occurred in Delaware Park in 1983 and 1984. The investigators already had conclusively linked Sanchez to two other rapes in the park: in 1981 and 1986. Detectives Dennis A. Delano and Lissa M. Redmond continued to look into the Capozzi case, even after Sanchez’s arrest, and began raising questions about whether the wrong man had gone to prison. Simultaneously, D’Agostino was working with District Attorney Clark to try to free his client. But time and again, the investigators, D’Agostino and Clark kept running into a wall — the shared belief that there was no physical evidence that could point to
Capozzi’s innocence or guilt. Capozzi, who resembled Sanchez at the time of the Delaware Park attacks, had been convicted based on the testimony of the rape victims, who had picked him out of police lineups. The best anyone hoped for Capozzi was for the Parole Board to
take into consideration the developments in the bike path investigation when Capozzi came up for parole next month. But that all changed on one snowy day shortly after Sanchez’s arrest as Evans Police Detective Lt. Samuel V. DeJohn drove in the Southtowns with Amherst Detective Eddie Monin. While not on the official task force, they, too, were investigating unsolved rapes with possible connections to the Bike Path Killer, including one in 1977 in Evans. DeJohn recalled lamenting to Monin that his department had thrown out physical evidence from that investigation — leaving no chance of testing for traces of DNA that could connect it to the Bike Path Killer.

Monin had a suggestion: “Did you ever think that maybe ECMC (Erie County Medical Center) retained some of that stuff? You never know.” DeJohn called the hospital and learned, much to his surprise, that the hospital did, in fact, have a huge catalog of glass slides, taken as part of standard rape kits performed on victims, that dated back from 1973 and went up to 2002. The hospital did not have a slide for the 1977 victim, DeJohn said. But DeJohn said he decided to e-mail the Deputy District Attorney to let him know — just in case he didn’t — that these slides existed. It appears that no one in local law enforcement had any idea that these slides existed, although there had been rumors
about the possibility of old evidence lingering at ECMC and other hospitals.

Clark had said that his office, and numerous other law enforcement agencies, had made inquiries to ECMC previously about old evidence but never got anywhere until a subpoena was served to the hospital last week. “We were chasing our tails,” Clark said. Clark said his of-fice made three or four attempts to obtain old evidence. D’Agostino said that it was his understanding that another lawyer, a friend of the Capozzi’s, also contacted ECMC. No one got any results, according to Clark, until his office made contact with Dr. James J. Woytash, who is both the head of pathology at ECMC and the chief medical examiner for Erie County. Slides containing biological material were taken in 1983, prior to DNA being available. DNA first began being performed sometime between 1987 and 1990. On a hunch, But time and again, the investigators,
D’Agostino and Clark kept running into a wall — the shared belief that there was no physical evidence that could point to Capozzi’s innocence or guilt.

Commentary


A standardized evidence preservation system, as these cases clearly illustrate, is badly needed. In other, less critical areas, state government files records in an orderly fashion, in case they need to locate them for whatever reason at a later date, such as license plate numbers, birth certificates, and death certificates. With the stakes even higher, as in freedom, it should be even more paramount.

To me, it is outrageous that the inability to locate files in a prompt fashion, due to the lack of a filing system has resulted in the prolonged incarceration of innocent people who have been wrongfully convicted. This needs to be remedied at once. It’s a no-brainer.

Similarly DNA evidence should be maintained, so that it is possible for those who have been wrongfully convicted to prove their innocence. The Innocence Project has reported that out of the 10% of all serious felony cases that have DNA to test, they have had to close one third
of all such cases that they have reviewed, due to the evidence being either lost or missing. There is no telling how many of those people are innocent, and thanks to the often literal trashing of the truth, we will never know.

I believe that non-DNA evidence should also be preserved. One need look no further than the Anthony Di-Simone case in Westchester, in which 376 pages, and 52 boxes of exculpatory material showing that a person other than DiSimone committed the stabbing murder for which he spent 7 years in prison, had been purposely withheld from his defense attorney’s under then-Westchester County District Attorney Jeanine Pirro, before having his case finally overturned by the United States Second Circuit Court of Appeals for what the presiding judge described as the worst brady violation he had seen in 12 years on the bench.

It is a sad commentary that law enforcement agencies would not preserve the evidence and store it in an easily retrievable way on their own, without legislation. But given that, as case after case illustrates, police and prosecutorial misconduct and corruption, bad faith, tunnel vision, and the misguided effort to win and preserve convictions at all costs, even the sacrificing of the innocent, exists, it must be mandated.

It follows, as a logical extension of these laws, that if they are passed, they should be coupled with both financial and incarcerative penalties for prosecutors and police who willfully break the law. Otherwise, the law will have no teeth, and there will be nothing to give any rogue law enforcement personnel reason to pause. This legislation should not only cover the intentional failure to preserve evidence, it should also cover
medical examiner’s fabricating reports in order to tailor them to fit a prosecutor’s theory, the intentional withholding of exculpatory material, as well as both the intentional suborning of perjury and allowing a witness to commit perjury without correcting them while
knowing it is false.

In any other walk of life, if a citizen breaks the law, they are held to account to face the charges, and if found guilty, they are punished. Why should a prosecutor, or a policeman, not face penalties, merely because they draw their paychecks through law enforcement jobs? If anything, I think it should be even more serious when a prosecutor or policeman, entrusted to uphold the law, betrays that public trust. After all, in order for the law to be respected, it must apply equally, to everyone, regardless of their race, financial status, or job.