DNA search delayed

The Baltimore Sun

Bloodied clothing that might exonerate a man convicted of killing his ex-boss more than 30 years ago could be sitting inside a city warehouse uncataloged - or it might be buried in a pile of items damaged during Tropical Storm Isabel.

But city prosecutors and police have told a judge that a thorough search for the evidence - as ordered by Maryland's highest court - will require them to inventory storage facilities that are "larger than the size of a football field" and comb through storm-damaged items at a cost of $50,000.

Assistant State's Attorney Sharon R. Holback wrote that the Police Department won't have the money at least until a new fiscal year begins in July. The city has an anticipated a $10 million budget deficit this year that officials are trying to balance through a hiring freeze and spending cuts.

"Short of a large-scale search of the entire facility, piece by piece, there's no way to say for certain the status of the evidence," Holback told Circuit Judge Kaye A. Allison in November. "The only way to definitively put this question to rest of whether or not the Police Department still has the evidence in this case is to retain a private contractor to come and sort through the biohazardous material and damaged material that has remained untouched since Isabel."

So Douglas Scott Arey - who has been in prison for more than three decades - will continue waiting on his request for post-conviction DNA testing on a bloody shirt used as evidence against him at trial.

Allison yesterday postponed making a decision on what to do after Holback sent her a letter in February explaining that the money for the search had not been approved.

Two years ago, the sergeant in charge of the Police Department's evidence control unit wrote that Arey's clothing had long ago been destroyed, a conclusion he reached after a search of police computer records and paperwork.

In a unanimous opinion last summer, however, Court of Appeals Judge Irma S. Raker said that wasn't good enough, listing more than a dozen places the state should check, including hospitals, laboratories and even judge's chambers.

"Because the State was the custodian of the evidence, the State needs to check any place the evidence could reasonably be found, unless there is a written record that the evidence had been destroyed in accordance with then existing protocol," Raker wrote, overturning Allison's decision to dismiss Arey's request.

Sterling Clifford, a police spokesman, said that there are more than 200,000 pieces of evidence in storage facilities and estimated it could take a year to inventory them. Holback also told the judge that complying with the order and searching the evidence damaged in Isabel creates a biohazard and must be handled by an independent contractor.

The tropical storm flooded the property room in the basement of police headquarters at 601 E. Fayette St. Workers and visitors had to wear protective suits, masks and gloves because of mold and diesel fuel that leaked from damaged generators, according to a 2003 article in The Daily Record.

"There was clearly damage, but it wasn't what you would call a disaster," said Circuit Judge John M. Glynn, who toured the property room after the flood. "It was just wet, like when four or five inches of water gets in a basement of a home. ... Since then, I've had exhibits show up in court that have water damage, but they were still usable."

At the time, police spokesman Matt Jablow told The Sun that evidence from "older cases" was damaged. But in 2001, the General Assembly passed legislation permitting convicted felons to seek to have DNA evidence retested with newer, more sophisticated technology.

While searching for Arey's clothes, the contractor will be instructed to catalog all of the items damaged in the flood, Holback told Allison.

"This will benefit not just my case but every other biological case after me," Arey, now 59, told Allison in November. But Clifford, the police spokesman, said yesterday it is doubtful that an inventory "would be especially helpful in any way" beyond satisfying Allison.

Michele M. Nethercott, who runs the public defender's Innocence Project in Maryland, said the problem with evidence storage in Baltimore is more widespread than the material lost in the storm and not limited to Arey's case. Recently, evidence from two rape cases involving city police officers disappeared from the city's evidence collection unit.

"The hurricane, that's probably part of it, but there are problems with the record-keeping system," Nethercott said. "When you start getting prior to 1990, it becomes very difficult to track things by a complaint number. Some of the records are literally on hand-made cards."

Since 2000, the Police Department has stopped destroying homicide and rape evidence, but before that, it was left to detectives' discretion whether to keep or destroy it, or return it to its owner.

Arey never got his blood-stained shirt back.

The case against him appeared to be strong. After Arey was fired, a threatening note was found stuck under his boss' door. A witness, Dennis Moon, testified under immunity that he lured the boss, Samuel Shapiro, to the Belvedere Hotel, where Arey shot and killed him in May 1973.

Together, Moon and Arey put Shapiro's body in a trunk and threw it in a Pennsylvania ravine, according to the court's opinion. Arey confessed to shooting Shapiro about a week later, and after police charged him, they confiscated a shirt of Arey's, which was later determined to have Shapiro's blood type on it.

The court granted Arey the right to an independent analysis, but the state said that there was "insufficient blood remaining" to run a second test.

Since then, leaps in technology allow DNA to be recovered from the tiniest of stains.

"This defendant has filed more than a half-dozen motions for post-conviction relief and this is yet another," said Margaret T. Burns, a spokeswoman for Baltimore State's Attorney Patricia C. Jessamy. "All previous requests have been denied. Our prosecutors will follow the law, and the law says that a search will be conducted."


Sun reporters John Fritze and Annie Linskey contributed to this article.

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