Missing evidence is proof positive of thwarted justice; Foul-ups have freed convicted criminals

THE BALTIMORE SUN

There are days in Baltimore Circuit Judge William D. Quarles' courtroom when a police officer takes the witness stand, unseals a supposedly safeguarded envelope of evidence to present to the jury -- and finds material for a different case.

It happens only occasionally, Quarles and other judges say -- but lost, misplaced or destroyed evidence is a serious concern among court officials because it undermines the quality of justice in this city under siege for its persistently high violent crime rate.

"It raises troubling concerns about the inability to order and make some sense of this mass of criminal prosecutions," said Quarles.

He recently presided over a high-profile murder case plagued with evidence problems that ended in an acquittal. The detective mistakenly ordered the destruction of shell casings found at the scene, the original taped statement of a defendant and the victim's bloody clothing.

A recent review by The Sun found six court cases in the past two years where police lost, misplaced or destroyed evidence. Judges said they have seen other foul-ups, though no one tracks the total number.

In the cases reviewed by The Sun, two were dismissed by judges. Two others ended in plea bargains with light prison time. One resulted in a conviction and another in an acquittal.

Part of the problem, officials say, is the flood of cases swamping the criminal justice system.

Police have to keep track of about 55,000 pieces of evidence at any one time, from guns to fingerprints cards to refrigerators, in police headquarters.

About three times a year, they clear out the gun section and send thousands of weapons to be melted down at Bethlehem Steel. They also hold two or three auctions a year to create more room.

Quarles said the volume of cases also causes a "numbness" in the criminal justice system "that translates into lost evidence and perhaps less than full-throttle efforts throughout the entire system."

Police say procedures were changed in the homicide unit in February so that two supervisors must review evidence forms before items are destroyed. In addition, the evidence unit is expected to be expanded so that officers may not have to routinely purge material to clear room in the 30,000-square- foot area in the basement of police headquarters.

But police spokesman Maj. Michael Bass said mistakes will be made.

"I am not sure that there is a systems issue here as much as there is pure, simple, unintended, human error," Bass said.

"I'm not sure how you can totally prevent something like that."

Baltimore State's Attorney Patricia C. Jessamy said problems with evidence handling have "been obvious for a long time." When prosecutors find out evidence is destroyed or missing, it makes proving a case that much harder, she said.

"You got a report that says ... 'This was recovered,' but then it's not there," Jessamy said. "It's not easy."

She said that she has met with top police commanders to talk about improving procedures.

"I feel very optimistic that we are going to have change," she said.

"We just have to look at it and work out something that is to the best interests of everybody."

Baltimore's Administrative Judge Ellen M. Heller said that maintaining evidence is vital to ensure that justice is fairly served. She said she has presided over criminal cases where evidence had vanished, but said such foul-ups "are certainly not the norm."

"Certainly more care should be taken so that it doesn't happen," Heller said.

The destruction or loss of evidence hurts both sides in a criminal case: It presents complicated legal issues, it can damage a prosecutor's chance of winning a conviction and it undercuts a defense lawyer's ability to question police findings.

The attempted-murder case against Michael Ruben, 36, illustrates the problems.

Ruben, a convicted burglar and drug user, was charged with robbing and shooting at the owners of a Woodland Avenue liquor store in October 1997. The shots missed the owners and struck a vehicle. Police said they found two 16-gauge shotgun shells at the scene and Ruben was carrying a 16-gauge shotgun when he was arrested.

Prosecutors planned to argue that the two matched, court records show.

But police destroyed the shells.

In court a year later, Ruben's lawyer, H. Gregory Martin, argued that the case should be dismissed because he did not have the chance to examine the shells. He said one police analysis indicated that the shells recovered at the scene were not 16-gauge, but 12-gauge, and he planned to argue that they could not have been fired from the gun found on Ruben.

Circuit Judge John N. Prevas demanded to know exactly how and why the shells were destroyed. Officer Sean Mayo testified that the shells were mislabeled and he mistakenly approved them for destruction two months before.

"That's very sloppy police work," said the judge, furious.

"I don't understand how you can have such a cavalier attitude towards the defendant's rights, but fish rot from the head down."

In dismissing the case, Prevas said he wanted to send a message.

"The Police Department has to do a better job. It can't allow routine destruction of evidence. It can't allow these mistakes and the price that society [pays]."

Prosecutors appealed the dismissal and won.

Ruben's defense lawyers are appealing to the state's highest court.

On the street, awaiting the outcome of the appeal, Ruben has been arrested five times on charges of drug possession and assault. All those cases were dropped or placed on the inactive docket.

In another case, prosecutors lost a chance to put convicted murderers Duane and Ridgely Bond behind bars for a long time in part because police destroyed the murder weapon.

In September 1995, the brothers, ages 30 and 27, each brandishing two guns, shot one man and killed another in a robbery that netted $200 in the 700 block of N. Carey St.

A month later, when police arrested Duane Bond, they found three guns on him. One of the guns matched bullets used in the attack.

But police destroyed the gun -- perhaps the strongest evidence -- in June 1996, court records show.

When the case went to court three years later, the brothers' lawyers argued that the case should be thrown out because it had been delayed so long and prosecutors should not be allowed to use as evidence reports that analyzed the gun before it was destroyed. Circuit Judge Allen L. Schwait appeared sympathetic.

So prosecutors cut a deal. The defendants would plead guilty to second-degree murder and the proposed sentence would be eight years in prison, with credit for the three they had already served while awaiting trial.

The plea bargain stunned the judge. The brothers' combined rap sheets are 67 pages long.

"You know what this does for these guys?" Schwait asked prosecutor Michael Reed on Feb. 1, 1999. "They are out in four years."

The judge reluctantly agreed to the plea bargain.

"The state is very concerned about its case. I hate to let these shooters walk out of here," Schwait said.

"But this case has been so screwed up. Absolutely. Absolutely."

Another case with evidence problems was dismissed by a judge in January. Rodney T. Capers, 33, a convicted robber and drug dealer, watched his case evaporate because the police officers could not get the evidence into the courtroom.

Capers was arrested in July 1998 on charges he was selling heroin. Officer David R. Euler wrote in his report that he witnessed 25 people waiting in line to buy drugs from Capers in the 900 block of Harlem Ave.

The case went to court in January. Capers faced 20 years in prison. A jury was picked. Judge Carol E. Smith instructed them on the law. The prosecutor, Gregg Solomon, and defense attorney made opening statements outlining the case for the jury.

The case was ready to begin. But it couldn't. The prosecutor's main witness, Euler, wasn't there. Nor were the alleged drugs.

Solomon rushed to the judge's bench.

"Tell me what the problem is since this case started. Why is it that he doesn't have the items from evidence control?" the judge asked her.

Solomon said that Euler told her he could not retrieve the drugs because he did not have the necessary paperwork. Officers must have a court summons and permission from a supervisor to take drugs out of the evidence room.

Solomon said she had faxed a summons to Euler, but he said he never got it. She asked the judge for a brief postponement.

"He is still at evidence control attempting to get the drugs," Solomon told the judge.

Judge Smith was incredulous. She told the prosecutor the case had been pending since the week before and that the officers knew the jury had been picked. She denied the request for a delay.

"I think it's reasonable to expect the officers to be here and be ready to proceed," Smith said. "This is like the Keystone Cops."

The prosecutor dropped the charges immediately. Capers walked out of the courthouse a free man.

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