Imagine that you have spent the past two years in jail, accused of murder, and that your trial is now just a few weeks away. You and your lawyer have pored over all the evidence and discussed the trial strategy. You’ve even considered whether to accept a plea deal.
Suddenly, the District Attorney’s Office announces that oh, by the way, we just found an inch-thick stack of police reports we never gave you — as well as three surveillance videotapes of the crime-scene area that we told you didn’t exist. Sorry. See you in court!
This just happened to four defendants whose trial for the 2003 murder of Jose Deveiga was scheduled to start on May 31. (Due to further late evidence disclosures, the trial has now been postponed, probably until November.) Amazingly, it was no anomaly.
A Phoenix review has found that in seven of the nine murder cases investigated by the Boston Police Department and tried in Suffolk County Superior Court to date this year, significant, previously undisclosed evidence came to light often just days before trial. Last October, a supposedly nonexistent surveillance video surfaced in another case — during the trial.
Are the cops deliberately hiding evidence from prosecutors, who are then unable to turn it over to defense attorneys? In most instances, probably not. It looks as if something much simpler, and perhaps more disturbing, is taking place at the BPD homicide unit: alarming levels of sloppiness, disorder, and disorganization. At any given time, the lead detective on a murder case may have no idea where all the case materials are; what reports and crime-lab test results should have been completed; what the prosecutor has and hasn’t seen; and even, apparently, whether anybody has watched surveillance videotapes, if available. In the Deveiga case, Detective Dennis Harris claimed that surveillance tapes from the murder scene showed no relevant activity, but the Phoenix has learned that when Suffolk County assistant district attorney (ADA) Patrick Haggan asked to view the tapes last month, he discovered that the BPD doesn’t even have a machine capable of playing them. Since Harris had no way of seeing the tapes, he could not possibly have known whether they were relevant.
Constitutional law and Massachusetts court rules dictate that the District Attorney’s Office must turn over to defense attorneys a wide variety of materials — including anything potentially helpful to the defense — within a few months of a suspect’s arraignment, so the defense has time to conduct an investigation and prepare its case. After all, at that point the state has pretty much wrapped up its investigation, but the defendant’s is only beginning — and that is a long process of finding witnesses, consulting with experts, and running lab tests, all of which starts with the state’s materials. The prosecutor even signs an agreement specifying a disclosure-deadline date. But the disorder in the BPD homicide unit has made a mockery of that requirement. Consider:
• In March, Cordell Jones was tried for the 2002 murder of Sydney Pope. The day before the trial began, an officer’s notes surfaced from a witness interview that was conducted just after the murder — and that corroborated Jones’s version of events and contradicted the prosecution’s.
• Just before the March trial of Kenji Drayton and Levino Williams for the 2001 murder of Michael Green, police disclosed crime-scene fingerprint evidence that helped convict Drayton. Shortly before that, they turned over the photos they showed to the key witness in the case more than three years earlier — and which the defense had specifically asked for as early as October 2002, in hopes of challenging the witness’s identification of the defendant.
• Days before Daniel Tran’s scheduled trial last month for the 2001 murder of Vincent Ngo, defense attorney Eileen Agnes was given, for the first time, a police report written the morning after the murder, when Tran reported the altercation with Ngo.
• In the two weeks leading up to the February 7 murder trial of Isaac Wallace, prosecutors came forward three separate times with material that had been in police possession for more than two years, but that was never disclosed by Sergeant Detective Daniel Downey: police notes from a photo-array identification and interview with the key witness; ballistics reports; and a document from the state crime laboratory.
• With Shaun Jenkins’s murder trial scheduled to begin on Monday, April 11, defense attorney Steve Weymouth received "a package of reports" from the DA’s Office on Saturday, April 9.
• More than a year and a half after Recardo Robinson’s death, Detective James Wyse found and turned over a tape of a 911 call in which a witness to the shooting gave a description of the perpetrator that did not match defendant Leon Robinson, who was tried for the murder last month.
• Last October, during the trial of Aderito Barbosa and John Monteiro for the 2001 murder of Geoffrey Douglas on a T platform, Detective Harris came forward with MBTA surveillance video purportedly showing the two suspects leaving the shooting area, an important source of investigative leads.
"This is a statewide problem," says Andrew Good, a veteran defense attorney with Good & Cormier, in Boston. "Document control in the context of multiple investigations going on is a very difficult task. It’s apparent that police departments across the state don’t have the problem solved."
The problem may be statewide, but it carries special weight for Boston’s homicide unit, which handles a third of the state’s murder investigations.
Trial by ambush
Consider the last example above, of the surprise T-station surveillance tape. Lawyers for Barbosa and Monteiro argued self-defense in that case, so they were eager to identify, track down, and interview anyone who might have witnessed how the altercation began. They would have had more than two years to do that if the tape had been turned over by the disclosure deadline. Instead, the attorneys barely had time to watch the tape before the jury did.
These 11th-hour revelations infuriate defense attorneys — "trial by ambush," as one calls it. But it frustrates prosecutors as well, and should infuriate anyone who wants the bad guys locked up. Last October, days before Timothy Deal went on trial for murdering William Woods, Suffolk County ADA Tim Bradl stumbled upon a blockbuster: a BPD crime-lab report from three years earlier that identified blood on a pair of Deal’s Adidas sneakers. For three years, Bradl and the detectives were unaware that this piece of paper, in the BPD’s offices, indicated blood had been found on Deal’s shoes. Had they known, they would have sent the blood for DNA testing. By the time Bradl saw the report it was too late, and he ended up not using the sneakers as evidence in the trial.
Of course, if Bradl had kept closer track of the case himself, he might have seen the report much earlier. As recently as the 1990s, Suffolk County homicide prosecutors worked alongside BPD detectives from day one of a case. An assistant district attorney would get roused from bed, join the detective at the crime scene, and stick with that case in a close advisory role as part of the investigative team. Today, with their workloads ballooning — Suffolk County district attorney Daniel F. Conley, in a letter printed in the Phoenix last fall, described the caseloads of his 15 homicide prosecutors as "ridiculously high" and "overwhelming" — prosecutors can’t be as involved. These days, Suffolk County prosecutors sit down with BPD detectives just before trial to make sure they’ve seen all the relevant material — and time after time, they come across something new.
That’s exactly what happened in the Deveiga case, when ADA Haggan met with Detectives Dennis Harris and Daniel Keeler in early May, in the BPD’s homicide unit on the second floor of One Schroeder Plaza. According to an affidavit that Harris submitted to Judge Margaret Hinkle, this was the first time that the detectives met with Haggan to review documents related to the Deveiga trial, which was due to start later that month. According to Harris, at that meeting he and Keeler showed Haggan two accordion files — one of which, it turned out, was filled with material Haggan had never seen, including three surveillance videotapes from local businesses that might show the crime scene, or at least people coming and going from the scene, and handwritten notes mentioning the tapes.
Harris claims that he personally collected the tapes, one from a gas station and two from a Pine Street Inn facility, the day after Deveiga’s death, on April 29, 2003. "I have no idea why the tapes were not turned over" for the next two years, Harris wrote.page 1 page 2
Issue Date: June 24 - 30, 2005
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