If evidence that important could be floating around in BPD headquarters at Schroeder Plaza — evidence that might help free the innocent, convict the guilty, or move forward an open investigation — what else might be lost?
"From a defense point of view, that’s just inexcusable," says Jack King, public-affairs director for the Washington, DC–based National Association of Criminal Defense Lawyers. King says that police departments nationwide are using off-the-shelf document-tracking software marketed just for police; the International Association of Chiefs of Police maintains a growing list of these product vendors.
While many other urban police departments have implemented records-management software, Boston’s doesn’t even maintain basic procedures for ensuring that all case documents end up in one place. Nor does the BPD keep material for individual cases together in one place — a file drawer, say. There are no checklists to make sure borrowed documents get returned. There isn’t even a system officers are supposed to use: BPD spokesperson Thomas Sexton says only that "each officer is responsible" for keeping track of documents in his or her cases. With fewer than 20 investigators in the unit and several hundred ongoing cases at various stages, that’s a lot to keep tabs on.
For a typical homicide case, reports may come from neighborhood station officers, forensics labs, the ballistics team, the gang unit, the Chief Medical Examiner’s Office, emergency medical services, and elsewhere. Sometimes these reports go directly from the source to the prosecutor; other times, to the homicide detective. It’s easy to see how things could slip through the cracks. "That’s something we’re working on," concedes David Procopio, spokesperson for the Suffolk County DA.
For the time being, however, neither the DA’s Office nor the BPD has any system for tracking what comes in and what goes out; so, if a report hasn’t been submitted or gets sent to the wrong place, nobody knows it’s missing. For example, every officer at the scene of a homicide investigation must submit a report. But nobody compiles a list of those officers’ names to check off as their reports are collected by the detective, sent to the prosecutor, and sent to the defense. One officer’s report on the death in East Boston of Leonard Rosenberg, dated June 15, 2001, first made it to Boston defense attorney Peter Krupp, who was defending Peter Granara in the case, in November 2003. In the report, the officer wrote that he recognized the victim’s car, in which the body was found, and knew where he normally saw the vehicle. This information, if received in a timely way, could have helped the defense locate people who knew Rosenberg and could shed light on the circumstances surrounding his death.
Yet the official word from DA Conley’s office is that this is perfectly acceptable. "When you have so much material collected, and when those investigators are working so many cases, I think it’s fairly natural that as a case is getting close to its turn at trial, you’ll find that not every single item that should have been turned over, has been," says Procopio.
That’s all the more troubling given that the District Attorney’s Office bears the legal responsibility for discovery. In practice, however, Suffolk County prosecutors rely on the lead detective to compile and forward relevant documents to them. So BPD detectives are effectively making legal decisions about what does and doesn’t fall under discovery — and they aren’t lawyers. "We rely on the detectives’ adherence to the rules of disclosure," says Procopio.
In fact, Procopio chalks up the Deveiga-murder surveillance-video snafu to this. "My understanding is that detectives were aware of them [the videotapes], but believed they were not of evidentiary value." (How they determined this value without a machine to watch the tapes is another unanswered question.)
The DA has to take responsibility for letting that happen, says defense attorney Andrew Good. "One of the dimensions of this problem is the extent that prosecutors delegate the decisions to the police department," Good says. "Then the prosecutors say, ‘It’s not me, it’s the police department. I turned it over as soon as I saw it.’ "
"The prosecutor has an obligation to review everything and decide what should and shouldn’t be disclosed," says attorney Peter Krupp. "It’s not clear that they are taking that obligation seriously."
At least twice in recent years, documents in detectives’ possession came to light long after trial. Three years after Donnell Johnson’s 1996 murder conviction, a police report of an initial interview, in which Johnson offered an alibi, surfaced. Similarly, Kareem Tyler and Ryan Samuels were convicted of murder in 1997, and only much later did detectives turn over a report saying that a witness had identified someone else from a photo array. Johnson has since been exonerated; Tyler and Samuels were granted new trials, and pleaded guilty to manslaughter last year.
Some critics say that one reason detectives lose track of documents is that once they home in on their suspect, they pay little attention to potential evidence that doesn’t fit their theory of the case. "It’s just incredible. They just focus on their theory," says one defense attorney, who received several old documents concerning other leads, as one of his recent cases neared trial. "They didn’t explore this, they didn’t explore that, and they did very little to preserve the information."
In fact, several defense attorneys say, BPD detectives often do little or nothing to preserve such information at all. Court documents show that three days before last fall’s trial of James Bush for the murder of three-year-old Malik Andrade-Percival, the prosecutor informed Bush’s attorney, Rosemary Scapicchio, of a crucial anonymous tip provided early in the investigation to Detective Robert Merner. Neither Merner nor Harris, to whom he passed the tip, ever wrote it down.
Something similar happened in the February 2000 investigation of the murder of Mary Chatman (see "Did He Murder His Mother?", News and Features, April 1). In that investigation, led by Detective Daniel Coleman, police performed an exhaustive second search of the house where the body was found, a day after the official search. Several neighbors told the Phoenix about this second search, and Coleman mentioned it under questioning at the trial of Chatman’s son, Abdul Raheem, for the murder. However, not a single mention of this second search appears in any report by Coleman or any officer who participated — at least, not in any that were turned over to the defense.
Defense attorneys say that detectives also often fail to document deals they make with cooperating witnesses — deals that by law must be disclosed. Revelations about undisclosed deals provided the key impetus to vacate Shawn Drumgold’s 1989 murder conviction — in 2003, after he had already served 14 years. It still happens: in the 2002 trial of Keion Sprinkle, detective John Martel admitted on the stand that he had testified on behalf of a cooperating witness in a probation hearing — a fact never previously revealed, and now critical to Sprinkle’s appeal.
Even information detectives do record in written notes is not always kept — although that is due to change. Suffolk Superior Court has just revised its rules and now requires disclosure of officers’ handwritten notes as part of discovery. Previously, this was optional — and, because it’s unpopular among detectives, rarely done.
In fact, police officers have testified during murder trials that they routinely throw away handwritten notes after typing their official reports; Harris testified about this last month during the trial of Bobby Robinson, according to Robinson’s attorney, Bruce Carroll. Defense attorneys contend that without the originals, they have no way of knowing whether all information from the written notes made it into the official report. When defense attorney Michael Bourbeau has had the opportunity to compare, he says, "in almost every incident, the notes have included information that has not been in the official report."
With preservation of notes now mandated by Superior Court rules, that problem should stop. To Good, this is the kind of court intervention needed to clean up the current system. "The court can reach all the way into the police department to prescribe changes, if that’s what is needed to ensure the integrity of evidence," he says. Judges, usually loath to take that kind of action, might feel compelled if this recent string of late disclosures continues. The goal, a fair trial using all the evidence, is one that all those concerned about criminal justice should agree on.
David S. Bernstein can be reached at dbernstein[a]phx.compage 2
Issue Date: June 24 - 30, 2005
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