Compromised Evidence Raises Serious Concerns, Says Legal Aid Chief

The NYPD revealed on Tuesday that an undetermined number of Brooklyn criminal cases may be affected by evidence that has been damaged or destroyed as a result during Hurricane Sandy. Steven Banks, the Attorney-in-Chief of The Legal Aid Society, told The Wall Street Journal that the potentially ruined evidence "raises serious concerns about the rights of New Yorkers who've been charged with crimes. It's seems too early to tell what the full impact will be, but if history is any judge, lost evidence can be very harmful to people who the police have accused of things that largely turn out not to be true." Mr. Banks also told The New York Times that the dismissal of charges will be a necessary remedy in such situations.

The Wall Street Journal
Sandy-Ruined Evidence Now Under Review
November 21, 2012
By Tamer El-Ghobashy

Thousands of pieces of physical evidence, including more than 1,000 vehicles alone, collected by the New York Police Department were damaged or destroyed by flood waters during superstorm Sandy, officials said on Tuesday—a problem that could potentially imperil countless Brooklyn criminal cases.

Two large warehouses located along bodies of water in Brooklyn were breached by flood water and sewage when the Oct. 29 storm hit, contaminating barrels full of biological evidence and other property that could be used as evidence in a wide range of criminal cases, NYPD officials said. Though preparations were made before the storm to secure the facilities, at least one of the two warehouses was inundated by at least 3 feet of water, the officials said.

Responding to an inquiry by The Wall Street Journal, NYPD Commissioner Raymond Kelly said on Tuesday that the department was facing a "big job" in assessing how profound an impact the compromised evidence would have on pending criminal cases.

"We're going to have to look at it on a case by case basis," he said after a news conference on a separate matter. "It's certainly a matter of concern."

"We're still trying to sort through this and assess the total damage," Mr. Kelly added. "It's a big job."

Department officials said they have been working with the Brooklyn district attorney's office to determine the breadth of the damage the storm inflicted on what they described as a significant trove of evidence.

A spokesman for Brooklyn District Attorney Charles Hynes said in a statement that it is "premature to discuss whether damaged evidence affects cases in Kings County because we have not yet received an inventory from the NYPD."

Paul Browne, the chief spokesman for the NYPD, said an effort is under way to catalog the losses and determine "what the impact will be going forward" on criminal cases.

Mr. Browne said the two facilities were "repositories" for evidence and may not have necessarily contained crucial items that weren't already analyzed in crime laboratories that were unharmed by Sandy.

Steven Banks, the attorney in chief at the Legal Aid Society, which does criminal defense in 220,000 cases a year in New York City, said the potentially ruined evidence "raises serious concerns about the rights of New Yorkers who've been charged with crimes."

"It's seems too early to tell what the full impact will be, but if history is any judge, lost evidence can be very harmful to people who police have accused of things that largely turn out not to be true," he said.

According to a breakdown provided by the NYPD, the Erie Basin Auto Pound, a large facility located along a peninsula bounded by the Gowanus Canal in Red Hook, held 968 cars and SUVs, 708 motorcycles, 120 peddler carts and three boats. All were inundated by the approximately 3 feet of water that breached the facility.

In addition, about 5,000 55-gallon barrels containing biological evidence were damaged.

Evidence stored on shelves above the ground level of the massive warehouse may have been unscathed but are still being assessed, Mr. Browne said.

In Greenpoint, the NYPD Kingsland Avenue Warehouse was breached by flood waters from the nearby Newtown Creek, ruining about 4,000 bicycles, 1,000 barrels of biological evidence and some paperwork, Mr. Browne said.

Prior to the storm, the NYPD sought to protect the evidence in both locations by sandbagging entrances and placing the barrels on several wooden pallets to elevate them from the ground, Mr. Browne said.

"It was not sufficient in either place, the water breached," he said.

At Erie Basin on Tuesday, damage from Sandy's wrath was still visible. A downed streetlight was pushed up against the NYPD warehouse, and sandbags and drift wood littered the parking lot adjacent to the facility. Both facilities have since been shut down and much of the inventory has been moved to nine other property clerk locations in the city.

On the same day the storm hit, NYPD officials conferred with the district attorney's office, the office of the special narcotics prosecutor and the office of the chief medical examiner to advise them of the contamination of the evidence and to set into motion steps to mitigate the damage, Mr. Browne said.

Perhaps tempering the potential legal fallout from the damage is that crucial DNA extracts are taken from biological evidence in a crime lab and are stored with the medical examiner's office before the item—a bloody shirt, for example—is taken to a storage facility and placed in a barrel, Mr. Browne said. "Anything that ends up back at the storage facility tends to have been already processed at the [medical examiner's] office," he said.

In addition, evidence such as a bullet hole in a car that would be used in a criminal trial would have been photographed "extensively" before the car is placed in a pound, he said.

The ruined items also include abandoned property or property that was removed by the NYPD in preparation for an event. For example, bikes parked along routes of a Presidential motorcade would be removed if deemed threatening by the Secret Service, Mr. Browne said.

Officials said it was still unclear if any property taken from suspects or evidence being initially processed at PSA1, a public housing precinct in Coney Island that was severely damaged and evacuated during the storm, was destroyed.