IAPE Evidence Blog

Aspen Daily News
BYLINE: Troy Hooper, Aspen Daily News Staff Writer, hoop@aspendailynews.com
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Aspen, CO

The defense and pros­e­cu­tion in the alleged Cen­ten­nial rape case went at it again Wednes­day as the two sides con­tinue to bat­tle over what is admis­si­ble at trial.

The pub­lic defender duo of Steve McCro­han and Tina Fang have had some suc­cess with the litany of motions they have filed so far, namely per­suad­ing the judge to sup­press all the state­ments their client, Emanuel Gonzalez-Loujun, 22, of Car­bon­dale, made to police after he was arrested for allegedly rap­ing a young woman out­side of her Cen­ten­nial home in Jan­u­ary 2009. Judge James Boyd sup­pressed all the state­ments as a sanc­tion against the dis­trict attorney’s office, which along with police, have made mis­takes in the case.

The lat­est mis­take Gonzalez-Loujun’s pub­lic defend­ers are try­ing to ben­e­fit from is the Aspen Police Department’s mis­han­dling of the defendant’s blood sam­ples. The department’s evi­den­tiary cus­to­dian Michelle McClin­ton tes­ti­fied that she failed to refrig­er­ate or freeze Gonzalez-Loujun’s blood when the Col­orado Bureau of Inves­ti­ga­tion sent it back to Aspen. The blood was not prop­erly stored for sev­eral months and was “untestable” by the time it was turned over to the pub­lic defender’s office, the attor­neys said.

Aspen police offi­cer Chris Wom­ack, who was the lead detec­tive on the case, tes­ti­fied “that was just an error on my part” when he sent the blood to CBI for a tox­i­col­ogy test, as it appar­ently should have gone to a dif­fer­ent agency for testing.

Upon learn­ing Wom­ack is par­tially color blind, McCro­han ques­tioned whether the detective’s con­di­tion might have affected how the blood sam­ple was processed.

The defense is ask­ing that the blood evi­dence not be admis­si­ble at trial.

Mean­while, city attor­ney Jim True filed a motion to quash the defense’s sub­poena seek­ing Aspen police offi­cer Leon Murray’s per­son­nel files. Hold­ing the officer’s files, which were sev­eral inches tall (Mur­ray has worked for the depart­ment for decades) True con­tended the files should remain pri­vate, at one point call­ing up Assis­tant Police Chief Linda Con­sue­gra, who tes­ti­fied no one has ever com­plained of Mur­ray using exces­sive force. Gonzalez-Loujun is accused of assault­ing Mur­ray and resist­ing arrest when he was appre­hended in the Cen­ten­nial area shortly after the alleged rape.

Judge Boyd agreed Murray’s files should remain pri­vate, although he did order the police depart­ment to keep the files ready in case they need to be exam­ined later.

It was also revealed in the open court that the dis­trict attorney’s office had its inves­ti­ga­tor audit the Aspen Police Department’s evi­den­tiary processes, which the pub­lic defender’s office alleges is fraught with prob­lems, but there were “no deficiencies.”

Fang is request­ing the audit be turned over to her office. She also is renew­ing her motion for sanc­tions on the dis­trict attorney’s office. She and McCro­han have been per­sis­tent crit­ics of Chief Deputy Dis­trict Attor­ney Arnold Mord­kin and his conduct.

At the end of yesterday’s hear­ing, Fang accused Mord­kin of improp­erly advis­ing Pitkin County Jail Admin­is­tra­tor Don Bird about the case’s ini­tial keep­ing of records.

The pub­lic defender ran out of time to elab­o­rate but her com­plaint about Mord­kin — along with the admis­si­bil­ity of the blood and other out­stand­ing issues — will be fur­ther dis­cussed Feb. 25. Fang also claims an Aspen police offi­cer involved in the case has a crim­i­nal record and she is seek­ing infor­ma­tion on the unnamed officer’s history.

Gonzalez-Loujun’s trial was orig­i­nally sched­uled to be over by now. But there have been unremit­ting delays that have now pushed the trial’s start back to March 29.

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Inter­na­tional Asso­ci­a­tion for Prop­erty and Evi­dence
“Law Enforce­ment Serv­ing the Needs of Law Enforce­ment“
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The Raw Story, rawstory.com
BYLINE: Daniel Tencer
Link to Article

CA, CO, KS, NY, MO & WI

In their effort to beat the statutes of lim­i­ta­tions that pre­vent peo­ple from being charged with a crime after a cer­tain amount of time has passed, pros­e­cu­tors in some parts of the US are try­ing a new tac­tic: They’re charg­ing half-eaten food, saliva-crusted glasses or other inan­i­mate objects with the crime.

That’s because pros­e­cu­tors now have DNA evi­dence as a way to get around statutes of lim­i­ta­tions. One way to make sure a crim­i­nal doesn’t get away by hid­ing long enough is to sim­ply charge the DNA itself, and wait until the DNA is matched to an actual person.

Laura Bauer of the Kansas City Star reported Mon­day that pros­e­cu­tors “in a few pock­ets of the coun­try” have begun issu­ing “John Doe” arrest war­rants that iden­tify only a person’s unique DNA sig­na­ture. Once the arrest war­rant on the DNA is in place, the statute of lim­i­ta­tions on the applic­a­ble crime will no longer run out. Bauer reports:

Since 2002, Jack­son County [Mis­souri] pros­e­cu­tors have filed 28 John Doe complaints.…

When­ever a bur­glary, rob­bery or van­dal­ism with DNA evi­dence is near­ing its statute of lim­i­ta­tion, police alert [pros­e­cu­tor Ted] Hunt’s office, and pros­e­cu­tors file a no-name charge.

By fil­ing these com­plaints, and charg­ing the DNA instead of a named sus­pect, pros­e­cu­tors put cases on hold until they know whose genetic fin­ger­print they charged. These cases oth­er­wise wouldn’t be solved within the statute of lim­i­ta­tions, and the sus­pects would be let off scot-free.

But it may be more than “a few pock­ets of the coun­try” that are try­ing out this tech­nique. Accord­ing to the Web site of the dis­trict attor­ney for Den­ver, Col­orado, “John Doe” DNA war­rants have been used at least in Cal­i­for­nia, Col­orado, Kansas, New York and Wisconsin.

“We may have 2 1/2 years left” on the statue of lim­i­ta­tions, Den­ver Dis­trict Attor­ney Mitchell Mor­ris­sey told the KC Star. “It doesn’t mat­ter, we file the case. … We freeze every­thing in place. … Oth­er­wise, the bad guy gets away.”

Last month, the Supreme Court of Cal­i­for­nia ruled that no-name war­rants based on DNA evi­dence are allowed under state laws. Accord­ing to Kelly Lowen­berg at the Stan­ford Law School blog, the court ruled that DNA-based war­rants are spe­cific enough to be con­sti­tu­tional, and that they do “stop the clock run­ning” on statutes of limitations.

But while this new crime-fighting tech­nique may be use­ful to pros­e­cu­tors, it raises ques­tions about the rel­e­vance of statutes of lim­i­ta­tions on crimes in the age of DNA. Defense attor­neys argue that stat­ues of lim­i­ta­tions exist for a rea­son — if a per­son is charged with a crime after too long a period, it may be dif­fi­cult to defend against the charges. “People’s mem­o­ries fade” and “wit­nesses move and can’t be found,” Bauer reports at the KC Star.

“If a defen­dant in a prop­erty crime is arrested 20 years after the fact, based on his DNA, he’s not able to defend him­self effec­tively,” Kansas City defense attor­ney J.R. Hobbs told the KC Star.

And the like­li­hood of the long arm of the law reach­ing even fur­ther grows as DNA data­bases in the US and around the world expand.

Last year, the FBI announced it would start col­lect­ing DNA sam­ples from peo­ple who weren’t charged with a crime. Thus far, only peo­ple charged with an offense had their DNA taken. It’s esti­mated that the FBI’s data­base will grow at a rate of 1.2 mil­lion DNA pro­files per year from now on, com­pared to a growth rate of about 80,000 per year prior to the new pol­icy. The FBI already has an esti­mated 6.7 mil­lion DNA pro­files on record.

Some civil rights advo­cates worry about the impli­ca­tions to pri­vacy and per­sonal free­dom from a grow­ing reliance among gov­ern­ments on DNA evi­dence. For instance, in the United King­dom it was alleged last year that police forces were ran­domly arrest­ing peo­ple sim­ply to get their DNA on to the books. Some accused British police forces of racial pro­fil­ing in that effort, not­ing that three-quarters of Britain’s black males under the age of 35 are now on the DNA database.

The KC Star’s Bauer notes that DNA is now being used in a much wider array of crim­i­nal inves­ti­ga­tions than has been the case in the past. While DNA test­ing was usu­ally reserved for mur­der and rape inves­ti­ga­tions, its easy avail­abil­ity today means it is being used in rob­bery and even van­dal­ism cases.

Den­ver police are so aggres­sive that they worked on a case in which a car win­dow was bro­ken and just $1.40 in coins were stolen.

A drop of blood was found on a car seat. When no match came up in the data­base, they went even fur­ther, check­ing for near-matches in what’s called a “famil­ial DNA” search.

The name of a con­victed felon came up. In the end, the felon’s brother was arrested.

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Inter­na­tional Asso­ci­a­tion for Prop­erty and Evi­dence
“Law Enforce­ment Serv­ing the Needs of Law Enforce­ment“
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The Den­ver Post
By Miles Mof­feit, The Den­ver Post
Link to Arti­cle
One Pic­ture
Five Videos

Larimer County, CO

Tim Mas­ters, 38, spent a decade behind bars before advanced DNA test­ing resulted in his release in 2008. (Den­ver Post file photo)

Larimer County com­mis­sion­ers have reached a set­tle­ment to com­pen­sate Tim Mas­ters in the range of $4 mil­lion for his wrong­ful impris­on­ment in the 1987 mur­der of Peggy Het­trick, accord­ing to sources close to the negotiations.

The deal, set for a for­mal vote by the board on Tues­day, would pay dam­ages result­ing from the conviction.

At the time, pros­e­cu­tors Terry Gilmore and Jolene Blair, both now Larimer County judges, used a psy­cho­log­i­cal the­ory in the absence of any phys­i­cal evi­dence to per­suade a jury to con­vict Masters.

Mas­ters, 38, spent a decade behind bars before he was released in 2008 after advanced DNA test­ing found no trace of Mas­ters’ genetic mate­r­ial as well as DNA that may point to another sus­pect. There has been no new arrest in the case.

Mas­ters’ attor­neys dis­cov­ered that the pros­e­cu­tors and Detec­tive Jim Brod­er­ick con­cealed evi­dence that would have aided Mas­ters at his 1998 trial.

Sep­a­rate nego­ti­a­tions between Mas­ters’ attor­ney David Lane and the city of Fort Collins have not yet resulted in advanced set­tle­ment talks, sources say.

Col­orado pub­lic defender Doug Wil­son said the Larimer County deal is historic.

“I don’t ever remem­ber a set­tle­ment on a wrong­ful impris­on­ment in the past 28 years,” he said. “I hope this sends a sig­nal to law enforce­ment and pros­e­cu­tors that they absolutely have to turn over all evi­dence and do thor­ough inves­ti­ga­tions before they con­vict somebody.”

Mas­ters, his attor­neys and county com­mis­sion­ers declined to com­ment on details of the set­tle­ment talks, say­ing they were for­bid­den to speak under a con­fi­den­tial­ity agree­ment that expires Tues­day, when details will be released.

Mas­ters’ law­suit sought dam­ages under civil-rights law, say­ing Gilmore and Blair vio­lated his con­sti­tu­tional rights by using selected and man­u­fac­tured evi­dence to falsely accuse him. The two denied the accusations.

The Col­orado Supreme Court reg­u­la­tory office had cen­sured Gilmore and Blair for eth­i­cal mis­con­duct by with­hold­ing evi­dence dur­ing the mur­der trial. That also was a mile­stone in legal cir­cles — the first time sit­ting state judges had been dis­ci­plined for actions com­mit­ted before they took the bench.

Brod­er­ick is the sub­ject of a reopened per­jury inves­ti­ga­tion by Weld County pros­e­cu­tors after Mas­ters’ attor­neys found addi­tional evi­dence that shows he gave con­flict­ing tes­ti­mony about his involve­ment in a sur­veil­lance oper­a­tion of Masters.

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