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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
“Law Enforce­ment Serv­ing the Needs of Law Enforce­ment“
www.IAPE.org

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

The News & Observer (Raleigh, North Car­olina)
BYLINE: THOMASI MCDONALD; Staff Writer

Cary, NC

Police this sum­mer seized hun­dreds of thou­sands of dol­lars worth of appli­ances, win­dows and other build­ing sup­plies from a Selma man’s prop­erty when it appeared that some of the goods had been stolen from Cary.

Six months later, Cary police still have not charged Clifton Ray Moore with any thefts, but they have shipped most of the seized items to Florida to be sold at an auc­tion next week because Moore can’t prove they’re his.

“We told Mr. Moore, ‘You show us the doc­u­men­ta­tion show­ing that you are the right­ful owner of the prop­erty, and you can have it back,’” said Cary Police Capt. Michael Williams. “He’s had since Aug. 6 to pro­duce those receipts.”

Moore, 61, ques­tions why he has to prove the mate­ri­als seized from his prop­erty are his. He won­ders why the bur­den isn’t on the police to prove they’re stolen.

“I just feel done wrong,” Moore said. “They can come into your house and take what they need.”

North Car­olina law allows the gov­ern­ment to seize prop­erty under civil law if it can con­vince a judge that the prop­erty was obtained through crim­i­nal activ­ity. Williams said the police will seek a court order autho­riz­ing the auc­tion before it takes place next week.

“All we’ve done at this point is move it from one loca­tion to another in prepa­ra­tion to sell it,” Williams said. “If we go before a judge and he says no, then Mr. Moore can get his stuff back.”

Williams said earn­ings from auc­tion­ing the build­ing sup­plies, val­ued at about $250,000, would go to Wake County schools.

Cary police say the items were stolen even though no one has claimed the prop­erty. Williams said the items were in the imme­di­ate vicin­ity of oth­ers that were stolen. He said some of the prop­erty looked as if it had been installed and then removed.

He said police “did a lot of pub­lic­ity” con­cern­ing the prop­erty and he doesn’t know why no one came for­ward to claim it.

It was July when the John­ston County Sheriff’s Office accused Moore, who uses a wheel­chair, of mas­ter­mind­ing a theft ring that for years ripped off con­struc­tion sites of every­thing from dou­ble doors to heavy-gauge stainless-steel kitchen sinks.

John­ston sheriff’s inves­ti­ga­tors car­ried an arrest war­rant charg­ing Moore with traf­fick­ing pre­scrip­tion drugs when they went to his home, which dou­bles as his business.

There they dis­cov­ered a cache of home build­ing sup­plies that appeared to have been stolen from sites around John­ston County, Cary, Apex and from out of state. The sup­plies filled two tractor-trailers. The sheriff’s office con­tacted Cary police, who obtained a search war­rant to recover some of the property.

The sheriff’s office charged Moore with pos­ses­sion of stolen goods, and he is await­ing trial on that charge.

But Moore says the items seized by Cary police belong to him. How­ever, his lawyer, Jim Lawrence of Smith­field, said late last week that he had not yet seen the receipts and invoices needed to retrieve his client’s property.

“Con­ver­sa­tions have been going on between myself and the town of Cary,” Lawrence said. “I want to get to the bot­tom of why some of this stuff can’t be released to him.”

Police did return a tractor-trailer filled with doors and win­dows to a man who had stored them in Moore’s buildings.

Police said the man pro­duced receipts for the property.

But last week, hun­dreds of thou­sands of dol­lars worth of other sup­plies were loaded onto two trucks headed to the offices of www.propertyroom.com, a Florida com­pany that auc­tions off items seized by police depart­ments across the country.

thomasi.mcdonald@newsobserver.com or 919 – 829-4533

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