Legal Aid Chief Attorney Raises Concerns About Destruction Of Evidence At NYPD Warehouse Because Of Hurricane
WEDNESDAY, JANUARY 02, 2013

As a result of the impact of the Hurricane on two New York Police Department warehouses where evidence for criminal cases was stored, the Police Department has admitted that evidence has been lost in at least six cases. In a New York Times article, Steven Banks, The Legal Aid Society's Attorney-in-Chief, said that "[t]his is likely to be the tip of the iceberg.” One of the first six cases, a New Yorker represented by The Legal Aid Society's Brooklyn Criminal Defense office was convicted recently of a crime based, in part, on DNA evidence destroyed during Hurricane Sandy. "We believe the ruling that permitted the evidence to come in was incorrect and we are appealing,” Banks said, adding that the situation was “a recipe for wrongful convictions.”

As reported in The New York Times, because of New York State's antiquated discovery law in criminal cases, evidence in criminal cases is not presented until a trial begins; and if a plea bargain is offered and accepted beforehand, it is not presented at all. “The government may well be fashioning plea deals based upon the lack of underlying evidence,” Banks told The Times. “We can ask if it’s there, but they don’t have to tell.”

The Legal Aid Society has an extensive proposal to reform New York's discovery law which is available by clicking the "Discovery Reform" button on the left side of The Legal Aid Society's website at www.legal-aid.org. Under New York’s criminal discovery statute (“Criminal Procedure Law Article 240”), New Yorkers accused of crimes, often wrongfully, are denied vitally important information, essential to make rational decisions about their pending cases. The limited information they receive is also turned over so late that it is often impossible to intelligently investigate, to secure and use any potentially exculpatory evidence, to develop a trial strategy, or to fairly weigh a plea offer. These chronic problems are key factors known to lead to wrongful convictions. In contrast, people litigating a civil claim in New York State – such as a debt or a contract dispute – have the opportunity through pre-trial discovery to learn almost everything about the other side’s case. So, too, do criminal defendants in many other States, since their criminal discovery rules allow broad, early, and automatic access to the prosecution’s evidence. A highly respected criminal law treatise has identified New York as among the following fourteen States that provide persons accused of crimes with the least pre-trial discovery in the nation: Alabama, Georgia, Iowa, Kansas, Kentucky, Louisiana, New York, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Virginia, and Wyoming.




The New York Times
Flooding of 2 Police Warehouses Destroys Evidence Needed for Criminal Trials
January 2, 2013
By J. David Goodman

Perched on a narrow crook of land jutting into New York Harbor, the Erie Basin auto pound and evidence warehouse seems a logical place to store hundreds of seized cars, thousands of guns and 9,846 barrels of evidence containing sensitive DNA material.

It is easy for the New York Police Department to safeguard the secluded bunker, in Red Hook, Brooklyn, from potential thieves.

But not, it turns out, from the surrounding water.

As Hurricane Sandy lashed the city, the surge breached the warehouse’s roll-top doors and hurtled hundreds — perhaps thousands — of its barrels into the wet muck. The storm wreaked similar havoc at another Police Department warehouse by the water, along Kingsland Avenue in Greenpoint, Brooklyn.

Now, the damage is having an impact on the courts.

In at least six criminal trials in recent weeks, a police official has had to testify that evidence was inaccessible, but still existed, said Paul J. Browne, the chief spokesman for the Police Department.

Prosecutors and defense lawyers said they were concerned that many more cases could emerge. “This is likely to be the tip of the iceberg,” said Steven Banks, chief lawyer for the Legal Aid Society.

A defendant in Brooklyn, Manuel Castro, was one of the first people convicted of a crime based, in part, on DNA evidence destroyed during Hurricane Sandy. A jury found him guilty of robbery and attempted assault after a judge allowed testimony on evidence — a jacket and boots — that could not be produced in court because both articles had been at the Greenpoint warehouse, Mr. Banks said.

“We believe the ruling that permitted the evidence to come in was incorrect and we are appealing,” Mr. Banks said, adding that the situation was “a recipe for wrongful convictions.”

Police officials have responded to the storm’s destruction by seeking advice from one of the only departments in the country with recent experience in this area: the New Orleans police.

Since Hurricane Sandy hit on Oct. 29, Phil T. Pulaski, the chief of detectives, and others in New York have been in phone contact with counterparts in the South, said Lt. Scott Lindsly, who helps oversee property and evidence for the New Orleans Police Department.

“We’re still dealing with this stuff ourselves,” Lieutenant Lindsly said.

Mounds of waterlogged evidence bags continue to cause headaches in New Orleans more than seven years after Hurricane Katrina, pointing to the difficulty of preserving DNA evidence after flooding.

“If you don’t keep it properly stored, you’re affecting somebody’s life,” said Robbie Keen, who directs a federally financed DNA project in New Orleans that is still trying to recover evidence.

Ms. Keen said some of the damaged biological evidence from Hurricane Katrina had been successfully tested, but some had been lost.

The New York Police Department has assigned 20 officers, 6 civilians and a captain to recover evidence at the two warehouses, under the supervision of Robert S. Martinez, director of the department’s Support Services Bureau, Mr. Browne said. The department may also hire a private contractor to help with the cleanup of damaged documents, as New Orleans did.

Mr. Browne said an occupational safety team within the Police Department determined that the two warehouses had been contaminated, with substances including raw sewage, and that they had to be closed to workers. It was not clear when they would be safe to enter.

Longstanding problems in the vast police storage system have compounded the storm’s effects.

While the department now puts bar codes on evidence, it relied on paper records until a few years ago. The antiquated system still provides the only way to track millions of items in the department’s 11 storage areas.

“It was all piles — piles, piles, piles,” said John W. Cassidy, a retired officer who spent more than a decade in the property division. “It’s not like it was organized. You could have 50 vouchers on one pile.”

Before bar codes were used, important pieces of evidence could occasionally go missing, “despite extensive search efforts by the N.Y.P.D.,” according to the Innocence Project, an organization dedicated to using DNA evidence to exonerate the wrongfully convicted.

A month before Hurricane Sandy, the United States Justice Department gave $1.25 million to the Police Department and the Innocence Project to go back and organize DNA evidence that might help overturn wrongful convictions.

Since August, the Police Department has been considering consolidation of its five evidence warehouses — including the two that flooded — into a single, new warehouse, Mr. Browne said. He said there were no plans to repair the damaged warehouses. Instead, evidence recovered from Greenpoint and Erie Basin is to be transferred to an interim site in Brooklyn until the single evidence bunker is built.

In addition to the nearly 10,000 barrels kept at Erie Basin, Mr. Browne said there were an additional 1,177 barrels of DNA evidence at the Kingsland Avenue location. Each barrel could contain a single piece of evidence — like a bloody blanket — or many smaller items in individual paper bags or envelopes. (Paper is favored over plastic, which can hasten bacterial contamination.)

Roughly 5,000 “narcotics items” and 3,250 firearms were also stored at the Erie Basin warehouse, Mr. Browne said.

Evidence for a coming rape trial in Manhattan — the so-called rape kit — had been stored at the Greenpoint location, the defense lawyer in the case said. The lawyer, Edward V. Sapone, said prosecutors told him that the kit might have been damaged in the storm.

Mr. Sapone said he had been concerned because he believed the evidence stored inside would help prove his client’s innocence.

It turned out that one element in the kit — a pubic hair — had not been at the warehouse during the storm because it was being tested.

Mr. Sapone said he received a message on Monday that the prosecutor was going to recommend dismissal of the case because the hair did not match Mr. Sapone’s client’s.

But without a trial, the effect of the storm on the rest of that rape kit — and possibly others — will not be made public in court hearings.

In New York State, evidence in criminal cases is not presented until a trial begins. And if a plea bargain is offered and accepted beforehand, it is not presented at all.

“The government may well be fashioning plea deals based upon the lack of underlying evidence,” Mr. Banks, of Legal Aid, said. “We can ask if it’s there, but they don’t have to tell.”