IAPE Evidence Blog

OnlineAthens.com, Athens Banner-Herald
BYLINE: Mer­ritt Melan­con — merritt.melancon@onlineathens.com
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Madi­son County, GA

Charged with theft, tam­per­ing with evidence

The Geor­gia Bureau of Inves­ti­ga­tion arrested a for­mer Sheriff’s Office inves­ti­ga­tor Mon­day on charges of steal­ing pre­scrip­tion pills from drug cases he worked.

Don­ald Glenn Carr, 45, of Danielsville, was charged with theft by tak­ing, tam­per­ing with evi­dence and vio­la­tion of his oath of office.

Carr is sus­pected of tak­ing pre­scrip­tion pills that had been seized as evi­dence in at least one drug case, accord­ing to Jim Fulling­ton, spe­cial agent in charge of the GBI’s Athens office.

Carr was booked into the Madi­son County Jail on Mon­day and later released on $10,000 bond. Both tam­per­ing with evi­dence and vio­lat­ing an oath of office are felonies, Fulling­ton said.

Carr, who worked for the sheriff’s office for 17 years, resigned at the end of Sep­tem­ber, cit­ing per­sonal issues, said Chief Deputy Shawn Burns.

Sheriff’s deputies didn’t know the pills were miss­ing until months after Carr resigned, Fulling­ton said.

An offi­cer logs evi­dence like drugs into a secure evi­dence locker, where it usu­ally stays until the case goes to court or until the defen­dant pleads guilty, Fulling­ton said. When offi­cers went to pick up evi­dence for a case Carr had inves­ti­gated, they noticed some items were miss­ing, he said.

“Some­body else went to retrieve the evi­dence from his cases, and that’s when they noticed that there were incon­sis­ten­cies there,” Fulling­ton said.

The sheriff’s office con­tacted the GBI last week about the miss­ing evi­dence, Fulling­ton said. Agents quickly nar­rowed their inves­ti­ga­tion to Carr, he said.

Two kinds of pills were miss­ing, but Fulling­ton would not iden­tify the types of drugs or how many came up missing.

The miss­ing pills came only from cases Carr had han­dled, he said.

The miss­ing evi­dence is going to affect the pros­e­cu­tion of at least one case, Burns said.

How­ever, it is too soon to tell how many other cases, if any, might be affected, both Burns and Fulling­ton said.

Pros­e­cu­tors might have to drop charges in some cases if the sheriff’s office can’t pro­duce the evi­dence, Fulling­ton said. How­ever, in some cases, pros­e­cu­tors may be able to move for­ward with­out one par­tic­u­lar piece of miss­ing evi­dence, he said.

The inves­ti­ga­tion con­tin­ues, but there is no indi­ca­tion that any­one else at the Madi­son County Sheriff’s Office was involved, Fulling­ton said.

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

ajc.com, AJC/Opinion
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Georga & Tennessee

By Michael Berry and Joan Berry

In 2004, just days before Christ­mas, we received a phone call that no par­ent should ever have to receive. Our lit­tle girl, Joh­nia, had been bru­tally stabbed by a rob­ber in her apart­ment. Joh­nia, a grad­u­ate stu­dent at the Uni­ver­sity of Ten­nessee, was alive when law enforce­ment arrived on the scene. But while we hur­ried from our home in Geor­gia to the hos­pi­tal, our daugh­ter died.

The anguish we went through is beyond words. We grieved while the sheriff’s depart­ment inter­viewed more than 1,000 peo­ple and sub­mit­ted more than 400 DNA sam­ples from sus­pects. Time con­tin­ued to pass — and we received no clo­sure. It was not until three years after our daughter’s mur­der that her killer was caught. He had been con­victed on an unre­lated crime and his DNA matched the DNA that was found in Johnia’s apart­ment. While await­ing trial, her killer took his own life.

We knew that her killer could have been brought to jus­tice ear­lier had he pro­vided his DNA upon his arrest rather than his con­vic­tion. Hav­ing had that sam­ple ear­lier would have saved law enforce­ment pre­cious inves­ti­ga­tion time and would have lim­ited our three years of know­ing that the man who killed our daugh­ter was on the loose and pos­si­bly destroy­ing the lives of others.

We turned our grief into action and we began to research what other states were doing around DNA col­lec­tion — and we began to work for change. In 2007, the Ten­nessee Leg­is­la­ture passed the Joh­nia Berry Act — a bill allow­ing for the col­lec­tion of DNA (via cheek swab) from felony arrestees at the same time they give their fin­ger­prints and mug shots.

And now, with the help of state Rep. Rob Teil­het (D-Smyrna) and a num­ber of other bipar­ti­san spon­sors, we are work­ing to pass the Joh­nia Berry Act in our state of Georgia.

Some, includ­ing colum­nist Bob Barr, argue against this life-saving leg­is­la­tion, say­ing that it raises con­sti­tu­tional con­cerns, that it only “might” help law enforce­ment, and that Georgia’s data­base is already suf­fi­cient. We could not dis­agree more.

Twenty-one other states have passed this leg­is­la­tion and it is pend­ing in 15 oth­ers. Chal­lenges to the statute have lost and the Vir­ginia Supreme Court has ruled that the col­lec­tion of DNA upon felony arrest is, indeed, constitutional.

Empir­i­cal data from stud­ies con­ducted in Chicago, Den­ver, Mass­a­chu­setts, Cal­i­for­nia, Indi­ana and more have soundly proven that this mea­sure will actu­ally pre­vent crime from hap­pen­ing, ensure that the right per­son is held account­able (dimin­ish­ing the effect of bias), free the inno­cent, and save money in the long run.

Cur­rently, Geor­gia col­lects DNA from only those con­victed of cer­tain felonies — not all of them. Our GBI crime lab, while run by ded­i­cated indi­vid­u­als, is under­funded and severely lack­ing when com­pared to other states. Law enforce­ment deserves every tool avail­able to them to keep us safe.

We invite crit­ics to sit down with us, as Rep. Teil­het has, hear our story, and then con­sider whether or not pol­i­tics is involved in this life-saving bill.

House Bill 1033, the Joh­nia Berry Act, is essen­tial, life-saving leg­is­la­tion. Every vic­tim of a crime is a per­son who’s life is per­ma­nently changed or ended. And every vic­tim has a mother and a father and other loved ones. We pray that other par­ents will never have to live through what we have, and that every child has a chance at a full life with­out crime. We pray that any fam­ily who loses a loved one will be able to rely on this leg­is­la­tion to assist with clo­sure and bring the cor­rect per­pe­tra­tor to jus­tice. The Joh­nia Berry Act is the begin­ning to the answer of our prayers.

Michael and Joan Berry, par­ents of Joh­nia Berry, live in Lawrenceville.

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

The Atlanta Journal-Constitution
BYLINE: Steve Visser
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Atlanta, GA

AJC Inves­ti­ga­tion: Con­victed ATL mur­derer to get new trial due to court recorder’s error

Roy Lewis McK­in­ney shouted “I didn’t do it” when he was con­victed five years ago of mur­der­ing his wife and led off to a life­time in prison.

His lawyers never thought he got a fair shake — the case against him was cir­cum­stan­tial — but his wife’s fam­ily and a jury con­cluded he was guilty.

“That was the most unusual mur­der case I’ve ever tried,” said Tony Axam, one of McKinney’s lawyers. “There was no eye­wit­ness and there was no phys­i­cal evi­dence tying Roy to the death. It was only that he was the prime suspect.”

Now, the 37-year-old McK­in­ney has the chance to per­suade a new jury to see things his way. Supe­rior Court Judge Michael John­son vacated his con­vic­tion just before Thanks­giv­ing and ruled he is enti­tled to a new trial.

It wasn’t because pros­e­cu­tors or police tram­pled on his rights; it wasn’t because of a judi­cial error; it wasn’t because of new evidence.

McK­in­ney is get­ting a new trial because there is no record from the first one that he would need to appeal the con­vic­tion. The court reporter never pro­duced an offi­cial tran­script of the case and her record of the trial has been lost. Worse for pros­e­cu­tors, crit­i­cal phys­i­cal evi­dence — such as cell phone records and a video of McKinney’s inter­view by police — was lost, too.

“Some­body dropped the ball and who­ever dropped it is who I’m angry at,” said David Cooke, who pros­e­cuted the case in 2005. “This man did it and (Atlanta Police Detec­tive) Vince Velazquez and I worked very hard to uncover the truth and present it to the jury. We really had a fight on our hands.”

Ful­ton County Dis­trict Attor­ney Paul Howard on Fri­day told The Atlanta Journal-Constitution, which first reported on the miss­ing tran­script last June, that his office plans to retry McKinney.

“It is obvi­ously a tough case that has got­ten tougher because of all the time that has passed and the court reporter los­ing all the crit­i­cal evi­dence,” Howard said. “Under the cir­cum­stances we would lis­ten to a rea­son­able plea offer from him, but we’re not talk­ing about time served. We aren’t going to award him a prize because the court reporter lost the tran­script and the evi­dence of the case.”

McK­in­ney remains jailed and is being held with­out bond on mur­der charges.

The court reporter, Peggy Mal­colm, who retired a month after the case, con­tends she left left the trial record and the evi­dence in her locker at the courthouse.

Mal­colm, who declined to be inter­viewed for this story, con­tends she never was asked to pro­duce the tran­script and that some­one else lost the record and evi­dence, pos­si­bly after it was moved to a new locker, said her lawyer, Lee Sexton.

The lack of a tran­script became an issue in 2007 when his lawyers requested one for an appeal.

Howard tried to have Mal­colm jailed for con­tempt of court, con­tend­ing she had a duty to pro­duce the tran­script. Sex­ton con­tended Mal­colm, who had mar­ried a fed­eral judge, wasn’t required to pro­duce the tran­script until either the Dis­trict Attor­ney or defense lawyers requested it — which didn’t hap­pen until 2007 when McKinney’s new pub­lic defender requested one.

Last August, Supe­rior Court Judge Con­stance Rus­sell ruled in her favor. “She didn’t lose any­thing, she had been retired for years,” Sex­ton said. “The judge found oth­ers had the responsibility.”

Cooke, now head of the spe­cial vic­tims unit for the Hous­ton County Dis­trict Attor­ney, con­ceded the evi­dence in the first trial was thin, but he said McK­in­ney had a strong motive: his wife, Shaquilla Weath­er­spoon, a guard with the Ful­ton Sher­iff Office, was hav­ing an affair and planned to divorce him.

McK­in­ney reported Weath­er­spoon, 29, miss­ing in 2002. Five days later her decom­pos­ing body was found in woods off Green­briar Park­way. The med­ical exam­iner could not deter­mine a cause of death.

Cooke con­tended there was a pat­tern of abuse and pre­sented evi­dence that McK­in­ney, on at least one occa­sion, had slammed his wife’s head into a wall. The crit­i­cal evi­dence: cell phone records that showed McK­in­ney had reg­u­larly called his wife, but his calls dropped off after he reported her miss­ing; and a neigh­bor who said he saw Weath­er­spoon in a car with McK­in­ney and she appeared to be “sleep­ing” near the time of her disappearance.

But two deten­tion offi­cers who worked with and knew Weath­er­spoon tes­ti­fied she never com­plained that McK­in­ney was phys­i­cally abu­sive. Instead, they said, she com­plained that he con­stantly mon­i­tored her by call­ing her when she was out with them at clubs and by secretly record­ing her con­ver­sa­tions at their house, accord­ing to excerpts of tes­ti­mony that were not lost because lawyers had asked for them dur­ing the trial.

The friends tes­ti­fied they never saw bruises on her. One said Weath­er­spoon was hav­ing an affair with a mar­ried sheriff’s deputy and that she com­plained her lover was “real jeal­ous.” John­son, the judge, refused to allow the jury to hear tes­ti­mony about Weatherspoon’s affairs, call­ing it char­ac­ter assas­si­na­tion, because defense lawyers had no evi­dence against any lover.

Howard thinks he can still over­come any rea­son­able doubt if forced to retry the case despite the miss­ing evi­dence. The dis­trict attor­ney said he is opti­mistic the phone com­pany retained a hard-copy record of the cell phone calls it cre­ated for the trial. Cooke said they were crit­i­cal to the conviction.

“He called her dozens of times for her to come home and they dropped off after she dis­ap­peared,” Cooke said. “I will never for­get the effect on the jury when I asked Vince Velazquez when the last phone call was. It was obvi­ous to every­one that he had stopped call­ing because she was dead.”

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