IAPE Evidence Blog

The Hous­ton Chron­i­cle
BYLINE: By CINDY HORSWELL, HOUSTON CHRONICLE

Cleve­land, OH

Ex-Cleveland law­man named in doc­u­ments; arms found at gun shop

GUNS: Trans­fer not approved

Fed­eral author­i­ties are inves­ti­gat­ing whether more than 500 weapons miss­ing from the Cleve­land Police Department’s evi­dence room were part of an ille­gal firearms-trafficking scheme.

Court doc­u­ments also con­nect Lib­erty County sheriff’s Capt. Harold Kel­ley and oth­ers to the gun-trafficking alle­ga­tions. Kel­ley pre­vi­ously served as cus­to­dian of the evi­dence room at the Cleve­land Police Depart­ment and had con­trol over one of only two keys to the locked room.

The other key was held by then Assis­tant Cleve­land Police Chief Henry Pat­ter­son. When Pat­ter­son was elected sher­iff in 2009, Kel­ley went to work as a cap­tain for the new sher­iff. The guns were dis­cov­ered miss­ing in Jan­u­ary 2009 dur­ing an inven­tory taken after Kel­ley departed.

The U.S. Bureau of Alco­hol, Tobacco, Firearms and Explo­sives declined to dis­cuss the probe. “It’s an ongo­ing inves­ti­ga­tion, and we can’t com­ment,” said Franceska Perot, the bureau’s spokes­woman in Houston.

Yet, a sworn affi­davit by ATF agent Alex Johny filed in Decem­ber to obtain a search war­rant for a gun shop, Sportsman’s Out­let and Indoor Range in Hum­ble, links Kel­ley to the miss­ing guns.

The affi­davit states the gun shop owner, Gary Lee, reported that Kel­ley had given him guns from 2007 to 2008 that were sup­posed to be destroyed in exchange for ammu­ni­tion, tar­gets and firearm-cleaning supplies.

112 weapons seized

As a result of the search in Decem­ber, author­i­ties con­fis­cated 112 of the con­tra­band firearms that Lee reported receiv­ing from Kelley.

Kel­ley referred all ques­tions to his Hous­ton attor­ney, Jack Zimmermann.

“These are mere alle­ga­tions unac­com­pa­nied by any proof,” said Zim­mer­mann. “Kel­ley is a well-respected long­time peace offi­cer, who deserves the ben­e­fit of the doubt. No charges are filed.”

Lee did not return phone calls. He serves as a Lib­erty County reserve deputy, said Capt. Steve Greene with the Lib­erty County Sheriff’s Office.

Accord­ing to the affi­davit, Cleveland’s police chief at that time, Ike Hines, stated he never gave per­mis­sion for any weapons to be taken to the gun shop.

Hines had been approached by Pat­ter­son and oth­ers who sug­gested Cleveland’s con­tra­band firearms could be sold to gen­er­ate funds for the depart­ment, the affi­davit said.

Hines never autho­rized the trans­fer or dis­posal of any of the weapons, the affi­davit said. How­ever, Cleve­land Munic­i­pal Mag­is­trate Bob Steely acknowl­edged sign­ing sev­eral “destruc­tion orders” and had trusted Kel­ley to han­dle things prop­erly, accord­ing to the affidavit.

Listed as destroyed

Of the 112 firearms recov­ered from Lee, 98 had been listed by Kel­ley as destroyed, the affi­davit said. Mys­tery remains over what hap­pened to the other guns still miss­ing from the Cleve­land police evi­dence room. Among the miss­ing weapons are 12-gauge shot­guns, Glock pis­tols and .357 revolvers.

The affi­davit also notes that the gun shop’s log books on the acqui­si­tion and dis­po­si­tion of these weapons were sketchy. For some, there were no records at all, the affi­davit said.

Dur­ing this time, Kel­ley also received 26 guns from Lee for which there were no records found to doc­u­ment the trans­fer of such a large cache of weapons, the affi­davit said.

The Texas Rangers, who inves­ti­gated the miss­ing weapons before ATF took over, thought turn­ing con­tra­band weapons over to a gun shop looked “sus­pi­cious and irreg­u­lar,” the affi­davit said.

“Texas law enforce­ment agen­cies gen­er­ally attend to the phys­i­cal destruc­tion of con­tra­band firearms them­selves … through the use of smelters, crush­ing devices and shred­ding machines,” said the affi­davit, adding that the process is usu­ally wit­nessed by officers.

cindy.horswell@chron.com

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www.policeone.com, Telegram & Gazette
Link to Article

South­bridge, MA

Some items in over­flow­ing evi­dence rooms go back as far as 15 years

SOUTHBRIDGE, Mass. — A small hot tub and a set of brass knuckle with three knives stick­ing out of it are among unusual items that have accu­mu­lated in the South­bridge Police Department.

They are exam­ples of a com­mon house­keep­ing issue for police depart­ments — the need for more room for evi­dence and recov­ered items.

Author­i­ties in West­boro are going through inven­tory, police Lt. Robert T. Fryer said. They have guns and old tele­vi­sions, com­put­ers and dif­fer­ent things that are of no par­tic­u­lar inter­est, he said.

“We’re going through our old cases — things that are 10, 12, 15 years old — and mak­ing sure that the cases are not active and dis­pos­ing of what we can to make more room,” Lt. Fryer said.

West­boro has a small room for valu­ables such as guns and drugs. Other items are kept in cold stor­age in a 12– by 25-foot space off the garage.

Bicy­cles and other items are in yet another area — a stor­age con­tainer at the West­boro Depart­ment of Pub­lic Works. Many bikes were auc­tioned, the lieu­tenant said.

Sut­ton Police Chief Den­nis J. Towle said his staff met last week about the same problem.

Chief Towle said his pre­de­ces­sor years ago bought a stor­age con­tainer for items. That’s now full.

Sut­ton police have also par­ti­tioned part of their garage for evidence.

“We have an exten­sive amount of jew­elry from a spe­cific case that we’re wait­ing to get a dis­po­si­tion on,” Chief Towle said. “At that point we’ll try to find who the own­ers are. It’s unlikely we ever will find them.”

The chief clas­si­fied some of the jew­elry as “real, real unique stuff.” A pocket watch has an esti­mated value of $3,000 to $5,000.

“Some­body has to be miss­ing it, whether or not (the owner is) still with us,” Chief Towle said.

The Auburn Police Department’s 30-square-foot evi­dence room prob­a­bly has about 500 items and is nearly out of space, Chief Andrew J. Sluckis said. The items are “run of the mill” guns and drug evi­dence, such as things used to cul­ti­vate marijuana.

“A lot of it has to do with either open cases that we’re wait­ing to come up for trial, or cases where we have to hold on to the evi­dence because the per­son is in default and has never appeared in court,” he said.

In South­bridge, uniden­ti­fi­able head­stones are among other unusual items, Chief Daniel R. Charette said.

South­bridge police have a plas­tic tub con­tain­ing about 30 or 40 swords. “We must have 300 or 400 firearms,” he said.

The depart­ment has checked with the town’s lawyer to see what it can do with this prop­erty, the chief said.

“It would seem pretty sim­ple on the sur­face,” Chief Charette said. “You have the recov­ered prop­erty from a break­ing and enter­ing. You know whose it is, you give it back to them.”

But the prob­lem is that some­times the court case has been dis­posed of and the insur­ance com­pany has paid for the loss. The insurer usu­ally doesn’t want the item back so it sits with police, Chief Charette said.

An auc­tion is a pos­si­bil­ity, but when items are declared sur­plus the town gets to keep the por­tion of money from the auction.

“My hope with that is the money stays within the police depart­ment,” he said with a laugh.

South­bridge police Sgt. Jose A. Din­gui recently met with Northboro-based Vil­lage Vault, a firearms stor­age facil­ity that in some cases will give the police 60 per­cent of the pro­ceeds from a gun sale.

For the most part Vil­lage Vault stores guns that were taken by police in restraining-orders cases, license revo­ca­tions or were aban­doned or donated in instances when a gun-owner died and the fam­ily didn’t want the weapon.

About five years ago, an Inter­net com­pany called propertyroom.com emerged, and it has been help­ful for depart­ments, said retired Shrews­bury Police Chief A. Wayne Samp­son, who is the exec­u­tive direc­tor of the Mass­a­chu­setts Chiefs of Police Association.

The com­pany logs the items, takes pic­tures and posts them on the Internet.

Chief Samp­son said this is a bet­ter pro­gram because the items are on the Inter­net per­ma­nently, and as mate­ri­als are sold the com­pany sends a check to a community.

State law allows “prop­erty which has been stolen, lost, aban­doned or taken from a per­son under arrest” to be dis­posed of.

Just to be thor­ough, the chief’s asso­ci­a­tion filed leg­is­la­tion to allow auc­tion­ing prop­erty on the Inter­net, Chief Samp­son said. The bill passed in April.

In the old days, an offi­cer would spend weeks or months going through prop­erty, try­ing to track down own­ers through let­ters, Chief Samp­son said.

The offi­cer would have to make sure the case was cleared before the depart­ment hired an auc­tion­eer, which requires a news­pa­per advertisement.

“We would have to bring in extra help on the day of the auc­tion to be there and process it,” Chief Samp­son said.

In most cases, after pay­ing for the pub­lic auc­tion, the depart­ment prob­a­bly would lose money to get rid of the prop­erty, he said.

How­ever, some items still find their way home the old-fashioned way.

Seven days ago in West Brook­field, a West Spring­field woman lost a dia­mond ring. She told a reporter it was a fam­ily heir­loom that fell out of her purse as she got out of her car for a Valentine’s Day din­ner with her hus­band at Salem Cross Inn.

Jean Smith of Wilbra­ham found it and turned it over to staff at the inn, who in turn gave the ring to police.

By Wednes­day it was in the right­ful owner’s hands.

Sgt. Charles H. Laperle, who han­dled the case, said the owner was lucky to have hon­est peo­ple turn in the ring.

West Brook­field police cer­tainly don’t need any more unclaimed items, which are kept in var­i­ous loca­tions in the department.

The ring’s owner did not want her name men­tioned, but she said she was “thrilled and relieved” and “for­ever grate­ful” to Ms. Smith.

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Inter­na­tional Asso­ci­a­tion for Prop­erty and Evi­dence
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The Daily Record (Bal­ti­more, MD)
BYLINE: Caryn Tamber

Bal­ti­more, MD

Dou­glas Scott Arey is con­vinced that some­where out there, there is the foren­sic evi­dence that will set him free.

In 2007, the Court of Appeals ordered pros­e­cu­tors in Arey’s case to per­form a thor­ough search for evi­dence con­nected to the 1973 mur­der of Arey’s for­mer boss, Samuel Shapiro.

Two-and-a-half years later, Arey and pros­e­cu­tors are at an impasse. The state says it has searched valiantly for the evi­dence but that it can’t be found. Arey and his lawyer argue that the state’s search falls far short of the Court of Appeals’ standard.

“They have just com­pletely, in my opin­ion, stonewalled this,” said Den­nis Laye, who was assigned by the pub­lic defender to rep­re­sent Arey.

Unless Arey gets relief from the Bal­ti­more City Cir­cuit Court judge han­dling his case, his claim seems des­tined to head back to the Court of Appeals.

Arey’s case and oth­ers that have recently come before the top court raise ques­tions about the stor­age and dis­posal of phys­i­cal evi­dence in long-ago crim­i­nal mat­ters: How far does the state have to go to look for evi­dence that may have long ago been rel­e­gated to an incin­er­a­tor? What if the evi­dence room is dis­or­ga­nized or even flood-damaged?

And what if the sought-after foren­sic evi­dence just doesn’t exist anymore?

Blood on his shirt

Arey was arrested in 1973 and charged with shoot­ing to death Samuel Shapiro, a busi­ness­man and polit­i­cal gad­fly, at the Belvedere Hotel.

Police arrested Arey and inter­ro­gated him, con­fis­cat­ing his vis­i­bly bloody T-shirt. DNA-testing tech­nol­ogy did not yet exist, but the blood type matched Shapiro’s.

In 2002, under a new law expand­ing DNA test­ing rights for those con­victed of mur­der and rape, Arey peti­tioned the court for test­ing of the T-shirt. He con­tends that when police inter­ro­gated him, he had a bad case of acne. He was ner­vous about being ques­tioned and began pick­ing at his pim­ples, wip­ing the blood on his shirt.

The bac­te­ria in his acne would have skewed the results of the blood-typing test, mak­ing it look as though the blood was Shapiro’s, Arey argues. He also ques­tions whether the lab test­ing was ever done in the first place.

In response to Arey’s peti­tion, the state pro­duced an affi­davit from the man­ager of the Bal­ti­more Police Department’s Evi­dence Con­trol Unit stat­ing that he searched for the evi­dence but had not found it. In 2006, the Bal­ti­more City Cir­cuit Court denied Arey’s peti­tion to test the T-shirt on the grounds that it no longer existed.

But in 2007, the Court of Appeals stepped in and held that the state’s efforts were not enough. Police and pros­e­cu­tors needed to check not only the evi­dence room but any­where else the clothes could rea­son­ably have been found, such as the trial judge’s cham­bers and the crime lab that was being used in 1973, the judges wrote.

The case went back to Judge Kaye A. Alli­son in Baltimore.

At first, the state reported prob­lems search­ing for the evi­dence because, pros­e­cu­tors said, it may have been stored in an area dam­aged by the floods of Trop­i­cal Storm Isabel in 2003. The state even­tu­ally secured grant money to help it clean and orga­nize the area, but it main­tains that it still can­not find the evidence.

State’s attor­ney spokesman Joseph Svi­atko said the office has now con­ducted “an exhaus­tive and exten­sive search for evi­dence based on the law and court order.”

Arey and his lawyers dis­pute that.

For one thing, said Laye, one of the men who pros­e­cuted Arey has sub­mit­ted an affi­davit say­ing that the genetic mate­r­ial from Arey’s T-shirt would have made it to any evi­dence stor­age facil­ity in the form of slides, not the shirt itself.

Laye said that means that the state could have been look­ing for the wrong thing all along.

Laye, of Burke & Laye LLC, also cites a log­book record­ing evi­dence checked in to the Bal­ti­more police crime lab­o­ra­tory. A cur­rent crime lab employee found the log­book and saw a ref­er­ence to a piece of evi­dence in Arey’s case.

The entry con­tains the num­ber 10 in paren­the­ses and gives the ini­tials of a lab tech­ni­cian, clues Laye says the state has not pur­sued in its quest to find out what hap­pened to the evi­dence.
He made that argu­ment in a hear­ing before Alli­son last August. While the judge has not yet ruled on the larger argu­ment, after the August hear­ing she ordered the state to grant Arey’s inves­ti­ga­tor access to the logbook.

In Octo­ber, that inves­ti­ga­tor found two other entries per­tain­ing to Arey’s case. Laye is ask­ing what these two entries could tell the state about the evi­dence, and whether the state has missed any­thing else.

Good-faith effort

Arey’s case is symp­to­matic of a larger prob­lem with the state’s abil­ity to locate long-ago phys­i­cal evi­dence, espe­cially in Bal­ti­more, said Michele Nether­cott of Maryland’s Inno­cence Project. Some­times, the state has told her that it just can­not say for sure whether it still has a piece of evidence.

“I naively had this idea that the orga­ni­za­tion, clas­si­fi­ca­tion of phys­i­cal evi­dence would be pretty straight­for­ward, but it doesn’t appear to be,” she said. “On our end of it, we’re really at the mercy of how dili­gent the law enforce­ment offi­cials are in try­ing to search for this stuff. The more screwed up their own inter­nal record-keeping sit­u­a­tion is, it requires more effort on their part.”

While Arey is sure the evi­dence that will exon­er­ate him is out there some­where, Laye is less certain.

“We don’t know that it exists or it doesn’t exist,” Laye said.

But, he said, the state needs to make a good-faith effort to find out. He likened the state’s search so far to his chil­dren telling him they have looked “every­where” for their shoes but still can’t find them. The shoes are often in their bed­rooms, he said.

“It doesn’t seem like it’s mali­cious,” Laye said. “It’s just laziness.”

“I don’t think any sort of impar­tial per­son would say this was enough,” he added.

Laye has sug­gested in his fil­ings before Alli­son that, if the state is not moti­vated enough to do a thor­ough search for the evi­dence, per­haps a new-trial grant will pro­vide the nec­es­sary incen­tive. He’s not opti­mistic about the chances for that motion, he said.

Laye has no fur­ther hear­ings sched­uled before Alli­son on the DNA issue and is await­ing her deci­sion the motions he has already pre­sented, he said. If Alli­son again rules that the evi­dence can­not be tested because it no longer exists, Laye said he will file an appeal.

Other cases

Another case, that of George Blake, has been con­sol­i­dated with Arey’s for the pur­pose of the DNA-related motions. Blake was con­victed of rape in 1982. In 2004, he peti­tioned the court for DNA test­ing, but, like Arey’s, Blake’s peti­tion was thrown out on the grounds that the evi­dence no longer existed. In 2006, the Court of Appeals ordered the state to look harder.

Blake’s lawyer alleges that the state still has not com­plied with the top court’s man­date because it has not searched stored evi­dence that was not labeled with prop­erty num­bers and has not sup­plied infor­ma­tion on how evi­dence was han­dled and dis­posed of at the time Blake was convicted.

Blake’s lawyer also argues that the state’s search has been cur­sory, point­ing out that its hunt for evi­dence in the Sex Offense Unit took only 20 min­utes. Often, draw­ers and boxes were left unopened and files unsearched.

Efforts to reach Blake’s lawyer, Kerry B. Verdi of Howrey LLP in Wash­ing­ton, D.C., were unsuccessful.

The Court of Appeals has recently weighed in again on how far the state must go to find evi­dence in long-ago cases. In the lat­est opin­ion, Hor­ton v. State, released in Decem­ber, the court held that a judge was wrong to dis­miss Tyrone Horton’s peti­tion for DNA test­ing in his rape case on the grounds that the evi­dence no longer existed.

The cir­cuit court judge based that rul­ing on an affi­davit from the hos­pi­tal that treated the vic­tim, in which it said it would not have saved her rape kit for this long, and doc­u­ments indi­cat­ing that the evi­dence was ready to be destroyed.

But that was not suf­fi­cient to show the evi­dence was gone, the major­ity held.

A fixed list?

The dis­senters in Hor­ton said the state had done enough and wor­ried about the majority’s focus on a list of pos­si­ble loca­tions to look for evi­dence: police evi­dence rooms, the prosecutor’s office, crime labs, hos­pi­tals, offices of defense coun­sel or inves­ti­ga­tors, cour­t­house prop­erty rooms, inde­pen­dent crime labs, and offices of clerks and court reporters.

John McCarthy, Mont­gomery County state’s attor­ney and pres­i­dent of the Mary­land State’s Attor­neys Asso­ci­a­tion, said no pros­e­cu­tor wants an inno­cent per­son to sit in prison, but the courts have focused too much on dic­tat­ing a fixed list of places the state must look for evidence.

For exam­ple, courts have noted that con­victs seek­ing DNA evi­dence have sug­gested that the state check in the cham­bers of the trial judge, McCarthy said. That sug­ges­tion is clearly a result of the case of Kirk Blood­sworth, a Mary­land inmate exon­er­ated of the rape and mur­der of a 9-year-old girl after DNA was located in the judge’s chambers.

“I think that is almost a unique sit­u­a­tion that occurred in that case, and obvi­ously it has become cel­e­brated because it became very impor­tant for exon­er­at­ing Mr. Blood­sworth, but again, that’s not a prac­tice of many judges,” McCarthy said. “I don’t know that you should nec­es­sar­ily be guided by the extra­or­di­nary result you got in a case result­ing from the extra­or­di­nary prac­tice [of one judge]. That is not a place I would have ever thought to look for evidence. ”

McCarthy said that if the state can­not find the evi­dence, the court must ask whether the defen­dant has sat­is­fied his bur­den for a new trial. The court should inves­ti­gate whether the evi­dence was destroyed to obstruct jus­tice or as a mat­ter of course in the days before DNA test­ing was available.

The defen­dant does not get the ben­e­fit of the doubt, he said.

“There are going to be cases where the evi­dence, not because of any sub­terfuge or decep­tion, sim­ply because of the pas­sage of time, is not avail­able,” McCarthy said. “I don’t think it means you over­turn the con­vic­tion, I don’t think it means you free the defen­dant, I don’t think it means he gets a new trial.”

There comes a point at which the defen­dant may have to give up on his claims that DNA evi­dence will exon­er­ate him, Nether­cott said.

“Most of the time, it’s been destroyed or it hasn’t been pre­served prop­erly,” Nether­cott said.” Most of the time, that’s the end of it. The defen­dant is just out of luck.

“That’s one rea­son DNA isn’t this magic bullet. ”

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Inter­na­tional Asso­ci­a­tion for Prop­erty and Evi­dence
“Law Enforce­ment Serv­ing the Needs of Law Enforce­ment“
www.IAPE.org