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Evidence destruction in NC
Topic Started: Mar 7 2010, 09:09 AM (245 Views)
Quasimodo


Quote:
 
To the extent Plaintiffs raise general concerns regarding possible loss or destruction of evidence, the Court notes that Defendants have an ongoing duty to preserve potentially relevant evidence, and the Court of Appeals for the Fourth Circuit has made clear that “when a proponent’s intentional [but not necessarily bad faith] conduct contributes to the loss or destruction of evidence, the trial court has discretion to pursue a wide range of responses both for the purpose of leveling the evidentiary playing field and for the purpose of sanctioning the improper conduct. [The court may, inter alia,] permit the jury to draw unfavorable inferences against the party responsible for the loss or destruction of the original evidence.”

Thus, Defendants in this case are already under a legal duty to preserve any potentially relevant evidence, and this Court can appropriately address if necessary any potential loss or destruction of such evidence. In light of these existing duties and remedies, and in the interests of efficiency and sound judicial case management, the Court in its discretion will deny Plaintiffs’ Motion to Compel Defendants to Confer Under Rule 26(f) [Document #67] at this time, and as a result, additional discovery will proceed only after the Motions to Dismiss are resolved and Answers have been filed.


This does not seem to take into account the defendants' history of loss or destruction of evidence in this case.

And if anyone really expects that Durham will faithfully preserve what evidence still remains for another two years or so, I have a bridge in Brooklyn they may want to purchase.

In that vein, there is also this article :


http://www.denverpost.com/evidencelist/ci_7172103

Freedom not same as justice, advocates say
By Susan Greene
The Denver Post
Article Last Updated: 10/14/2007 03:43:04 PM MDT

DURHAM, N.C. — Freedom is coming after 14 years for Floyd Brown.

But justice, many in North Carolina say, has yet to be served in a case where authorities locked up the mentally disabled man without a trial since 1993 and, unaccountably, lost or destroyed key criminal evidence that years ago may have freed him.

Brown's story -- featured in the Denver Post series "Trashing the Truth" -- is one of the most alarming of 142 innocence claims the paper has identified nationwide in which biological evidence has been mishandled or destroyed.

(snip)

"Sure, after 14 years, we've finally taken a knife out of this guy's back. But this is not justice," said Tye Hunter, head of North Carolina's Indigent Defense Services.

"Floyd Brown, under another name, lives in Colorado," said Joe Cheshire, the lawyer who defended the captain of Duke's lacrosse team in North Carolina's infamous rape case.

"Justice, real justice, cannot be done until authorities stop getting away with destroying evidence."

(snip)

But the stick is gone - lost or destroyed, without explanation, in a case investigated by two Anson County sheriff's deputies who since have lost their badges after being convicted for federal racketeering in unrelated cases.

The lead investigator, Bud Hutchinson, told The Post this year that "it's nobody's business what happened" to the evidence in Brown's case.

(snip)

"A lot about the case bothers me," Durham Superior Court Judge Orlando Hudson said. Hudson dropped the charges against Brown after a three-hour hearing Monday.

(snip)

"Mr. Brown has been found free of the charges, so the system works, be it slow or whatever," Sheriff Allen said.

Hudson told The Post he would like to see a state probe into what happened to the evidence and "ramifications" for those responsible for keeping it. Even negligence in evidence handling, he said, "should have remedies."

"The prosecutors and police are not the people the public wants to see investigated. But I think with the abuses we've found with evidence, sometimes they need to be investigated," the judge said.

(snip)

The federal Innocence Protection Act of 2004 also threatens fines, imprisonment or both for "whoever knowingly and intentionally destroys, alters or tampers with biological evidence" with the intent to keep it from being DNA-tested.

Brown's is one in a string of North Carolina cases plagued by evidence problems.

The most well-known came when Durham District Attorney Michael Nifong suppressed DNA evidence suggesting the innocence of young defendants in the Duke lacrosse case, who ultimately were cleared.

Hudson -- the judge in Brown's case -- suspended Nifong from his job this summer.

[ IT WAS THE BAR WHICH TOOK AWAY HIS LICENSE TO PRACTICE. AND HUDSON WHO REFUSED TO ACT ON BREWER'S MOTION!]


"That's what has to happen to officials who withhold and lose evidence. Otherwise, we can never have faith in our justice system and, otherwise, innocent people will continue to go to prison," said Cheshire, a defense lawyer in the Duke case who also serves as president of the North Carolina Academy of Trial Lawyers.

(snip)
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