Detailed evidence search is called for

In DNA-linked appeal, judges rule exhaustive effort must be made before declaring it lost

August 02, 2007|By Alia Malik | Alia Malik,Sun reporter

Maryland's highest court yesterday demanded that police and prosecutors conduct thorough searches before declaring trial evidence to be permanently missing - checking storage rooms, offices and even judges' chambers if necessary.

The unanimous ruling by the Court of Appeals involved a request for DNA testing of bloody clothing from a man convicted 33 years ago of killing his ex-boss in Baltimore, and it comes after the disclosure of other recent problems with the Police Department's storage of crime evidence.

A city Circuit Court judge had dismissed the request after a city police sergeant submitted an affidavit declaring that he had checked the department evidence records and found no mention of the old clothing.

"The Circuit Court erred in dismissing his petition for testing based on [the police sergeant's] representation that, because he checked the [Evidence Control Unit's] database and forms on file, it was reasonable to conclude that the evidence no longer exists. Searching the ECU alone was insufficient," Judge Irma S. Raker wrote on behalf of the court.

"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 concluded.

A spokeswoman for the city state's attorney's office said yesterday that, based on the ruling, one prosecutor in the office will now be charged with ensuring that all possible storage locations are searched in this case and for every future request for post-conviction DNA testing.

Douglas Scott Arey, now 58, was convicted 33 years ago for the murder of his former boss, Samuel D. Shapiro. A test of blood on Arey's clothing matched it to Shapiro's blood type. Arey disputed the test's accuracy, but was told there was not enough blood left on the clothes for an independent analysis. He was sentenced to life in prison.

After the General Assembly passed legislation in 2001 enabling convicted felons to have evidence retested with newer DNA technology, Arey filed a petition. With new developments in technology, he reasoned he could have even a tiny spot of blood reanalyzed, his attorney said.

Though yesterday's decision does not guarantee that the evidence from the 1974 trial will be found, public defender John Kopolow said he was pleased with the decision on behalf of his client, Arey.

"It may be surprising that the evidence was kept there, and it's a long time after that, but I think definitely the search has to be made," he said. "I think it will help the state to recognize that these petitions have to be taken seriously and that a serious search must be done for the evidence before they can conclude that the evidence does not exist."

Since the clothes were last in the custody of the city state's attorney's office, it is up to prosecutors to prove the evidence does not exist, the court ruled. The office will comply, said spokeswoman Margaret Burns.

Sharon R. Holback, appointed in early June as the office's director of forensic science investigations, will make sure all the necessary locations are searched and prepare a court report, Burns said.

"It's extremely important evidence," Burns said. "It could show proof of innocence, but it could also show undeniable guilt, once and for all."

The court said that all "most likely locations" should be searched for evidence in any case, possibly including hospitals, court evidence rooms, and prosecutors' offices. If relevant, searchers should check with defense investigators, court clerks and court reporters, the ruling said - noting that one man sentenced to life in prison was later exonerated based on evidence found tucked away in a judge's chambers.

In Arey's 1974 trial, a city police detective testified that Arey's bloodied clothes were kept in the Police Department's "property room" before being tested at an unspecified crime laboratory. During the trial, the clothes were "locked up in the judge's chambers," the detective testified.

The police property room is known interchangeably as the Evidence Control Unit, said police spokesman Sterling Clifford. After Arey filed his 2002 request for DNA retesting, police Sgt. David K. Ferber, who is in charge of the storage unit, checked his records and found nothing referencing the clothes, he wrote in an affidavit.

"In light of my experience at the ECU, I have concluded that the requested evidence no longer exists," Ferber wrote, according to court documents. The sergeant was not available for comment yesterday.

Since 2000, the Police Department has stopped destroying homicide and rape evidence, Clifford said. Before that, detectives investigating a case could decide whether to keep or destroy the evidence, or to return property to its rightful owner.

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