Legal Aid Chief Attorney Appears On MSNBC To Discuss Potential For Wrongful Convictions As A Result Of Lost NYPD Evidence Due To The Hurricane; CNN Also Reports On Legal Aid's Concerns

The Legal Aid Society's Attorney-in-Chief, Steven Banks, appeared on MSNBC over the weekend to discuss the impact of the revelation that 11,000 barrels of evidence may have been lost due to damage at two New York Police Department warehouses in Brooklyn as a result of the Hurricane. Banks raised concerns about potential wrongful convictions because of the loss of evidence. He also said that New York State's antiquated discovery law may prevent many New Yorkers accused of crimes, often wrongfully, from even knowing whether evidence in their cases has been lost until the time of trial.

CNN also reported on The Legal Aid Society's concerns about these matters and quoted the Society's Attorney-in-Chief.

MSNBC National
January 5th, 2013 4-5 PM

Host: Hurricane Sandy’s impact is now reaching past homes and businesses, now disrupting criminal trials in New York City. Two warehouses where they kept all the evidence—flooded. The NYPD has 20 officers, six civilians, and a captain now trying to recover that evidence. All of this is according to The New York Times. The warehouses that flooded contained more than 11,000 barrels of evidence. Steve Banks is the chief lawyer for the Legal Aid Society. Steve, first of all, what was in those barrels?

Steve Banks, The Legal Aid Society: The barrels included things like DNA evidence, cloth, clothing, guns, drugs. There were cars. All the kinds of things that might be associated with a criminal case.

Host: New York Times reporting that in at least six criminal trials, the cops testified that the evidence was “inaccessible.” How big of a problem is this, potentially?

Steve Banks: Well, those six cases are just the tip of the iceberg. At the Legal Aid Society alone, annually we handle 300,000 cases, but 213,000 of those cases are criminal cases in all five boroughs. So, the idea that only six cases are affected with 11,000 barrels inaccessible or damaged or lost, I think what the real concern here is that, in many cases, there’ll be grave injustice because the evidence isn’t available, and we’re very concerned about wrongful convictions resulting from this situation.

Host: You are appealing a case—a Brooklyn man convicted of a crime based on DNA evidence that was destroyed. What happened in that case in particular?

Steve Banks: Well, in that particular case, the government was allowed to simply present a report about what the evidence showed and what it was, and the individual was unable to confront the evidence. I mean, fundamental to our criminal justice system is that you’re able to challenge how evidence is collected, how it’s tested, how it’s presented. If we’ve learned anything about DNA, it has the power to exonerate, but it also has the power to result in wrongful convictions if it’s improperly collected. And that’s what our concern is in these kinds of cases.

Host: How is this going to change how you proceed in cases where DNA is a critical part of the case?

Steve Banks: Well, one of the real serious concerns here is that we may not know, in these cases, which ones are affected. In New York, it’s one of fourteen states in the country that have yet to reform their discovery laws. What do I mean by that? In New York, we still have trial by ambush; you don’t find out what the evidence is until the actual trial. If you’re sued in a consumer case or a contract case, you have the right to discovery, to get a copy of the debt document or the copy of the contract. Not so in a criminal case in New York, and so this is a situation which certainly highlights the need for discovery reform in New York. We’ve asked the police for an accounting of all cases that are affected, and it’s incumbent upon them to provide that accounting. If not, we’re going to have to go to court. I hope we don’t have to, but we may have to.

Host: In your zeal to make sure that some rights aren’t trampled, is there a chance here that some bad guys are going to get off?

Steve Banks: Well, I think this is a concern here where you’ve got 11,000 barrels of evidence. we’re just beginning now to evaluate what the consequences are going to be. I think before we proceed any further, it’s important for the police to provide the information about what cases are affected, so that everyone—the prosecution and the defense—can assess what’s going on in these cases.

Host: Steve Banks, chief lawyer for the Legal Aid Society. Thanks so much for being here; I appreciate your time. Keep us posted on all of this, too.

Steve Banks: Thanks for having me.

The Situation Room
CNN National
January 4th, 2013 4-5 PM

Wolf Blitzer, Host: Days after the last House of Representatives ignited a huge political firestorm refusing to vote on a $60 billion aid package for the thousands of super-storm Sandy victims, both chambers of the new Congress have approved a smaller, $9.7 billion measure. The remaining $51 billion will be considered later this month. Money is only one of the many challenges facing New York and New Jersey in the wake of the storm. Another major problem? Two facilities housing thousands and thousands of barrels of evidence in criminal cases are damaged, and it could take a huge toll on the courts. Mary Snow is joining us with details on what’s going on. What is going on, Mary?

Mary Snow, Reporter: Wolf, there are some cases right now making their way through New York City courts where evidence can’t be produced, and it’s unclear at this point just how extensive a problem this is going to be in criminal trials.

This flood-damaged warehouse right on New York Harbor can actually clog the city’s overflowing criminal system for years to come. It sits in an area of Brooklyn devastated by super-storm Sandy. Inside it, there are thousands of pieces of police evidence ranging from DNA to narcotics to guns that right now can’t be touched.

Ray Kelly, NYPD Commissioner: Significant flooding has taken place. No question about it. We’re still trying to sort through this and, you know, assess the total damage. It’s a big job.

Mary Snow: That was back in November. The police department says it still hasn’t been able to get into this facility and a second one because sewage contamination has made them unsafe. But trials can’t wait. CNN’s legal contributor Paul Callan is a former prosecutor.

Paul Callan, Former Prosecutor: It could be a major problem if evidence that has been damaged is critical to proving a case.

Mary Snow: The NYPD says so far there have been six criminal cases where police have said there is evidence, but it’s not accessible. Those cases have not been dismissed. In cases involving DNA and narcotics, prosecutors rely on results from tests that are done on smaller samples of the evidence. Police say those results are kept at a different facility that was not compromised by the storm.

What about cases where there is, let’s say, blood evidence, where the physical evidence is in that warehouse, but the test results are at a different location?

Paul Callan: You would have the issue of, “is there enough for the defense to fairly test the sample to determine whether it’s the defendant’s blood or not?” So, it wouldn’t necessarily be fatal to a case, but you know, in criminal cases, beyond a reasonable doubt is a very, very high standard of proof. And if you eliminate the physical evidence, you can put a serious dent in the prosecutor’s case.

Mary Snow: The NYPD has consulted with its counterparts in New Orleans, where evidence and records were destroyed following Hurricane Katrina. The New Orleans police department says one key difference is that flood water remained at the New Orleans courthouse for weeks, where evidence was destroyed, and they had the job of cataloguing evidence that could be salvaged.

Deputy Chief Kirk Bouyelas, New Orleans Police: It took years. It is not something that can be easily done, and in New York you’re looking at facilities that are much more vast than what we had here in New Orleans. So, that compounds it even more.

Mary Snow: Now, as far as the damage here in New York, the NYPD says it expects to get into those facilities to assess the damage in coming weeks; it doesn’t believe that all the evidence was damaged in those facilities, but right now it’s unclear. Meantime, the chief attorney for New York’s Legal Aid Society says that he definitely expects more cases to emerge where there’s going to be a problem. He cites 213,000 criminal cases each year throughout New York City. Wolf?

Wolf Blitzer: Couldn’t more have been done to, you know, foresee what potentially could happen, leaving all this evidence in a relatively vulnerable area, a facility on the water?

Mary Snow: Yeah, when you see those pictures of where that facility is, surrounded by water, it is certainly so vulnerable. The police department t says that it did take precautions; obviously, that didn’t help with this flood water and this storm. It also says, though, in August it had been looking at different facilities, that it had planned to move out of that location. Obviously, that’s going to be something that’s done in the future to make sure that this won’t happen again.

Wolf Blitzer: Yeah, that would be smart. Alright, thanks, Mary. Thanks very much.