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Admissibility of Evidence Challenged in Sex Crimes Case

Francis McCann was charged with one count each of first degree sodomy, first degree robbery, first degree sexual abuse and two counts of criminal weapon possession in the fourth degree. The crimes allegedly occurred on June 13, 1976 but Mr. McCann was not indicted until January 24, 1980.

A New York Sex Crime Lawyer explained that Mr. McCann’s criminal trial for the robbery and sex crimes charges began in September 1980. The proceeding ended in a mistrial due to a hung jury. The primary piece of evidence presented by the prosecution was the victim’s identification of Mr. McCann.

At the second trial, Mr. McCann hired a new criminal defense lawyer. His attorney filed a request with the prosecution to produce certain evidence based on a police reported prepared by Detective Stanley E. Carpenter, who worked in the Queens Sex Crimes Unit at the time. According to the detective’s report, the person who committed the robbery and sex offenses cut his hand during a struggle. The report stated that there were blood stains around the area where the attack occurred as well as on the victim’s pants.

A New York Sex Crime Lawyer said that based on this report, defense counsel sought out the police lab report for the blood samples taken at the scene and from the victim’s pants. The District Attorney’s Office later notified Mr. McCann’s attorney that they could not locate the lab report, blood samples or the victim’s pants. Following this admission, defense counsel moved for a dismissal of the indictment on the grounds that Mr. McCann’s rights had been violated with regard to due process. It was his contention that the evidence would prove his client’s innocence. The prosecution argued that there was no explicit duty to preserve evidence that might exclude a potential suspect if there was no suspect or perpetrator identified at the time.

A hearing was held in the Queens County Supreme Court, Criminal Term to determine the merit of the motion. The prosecution was asked to explain how the evidence was lost and the defense also had an opportunity to prevent expert testimony regarding the value of the evidence had it not been misplaced. Dr. Robert Charles Shaler of the New York City Chief Medical Examiner’s Office testified for the defense. The prosecution called the detective who prepared the report and a representative from the District Attorney’s Office.

A Nassau County Criminal Lawyer said that based on the evidence presented at the hearing, the Supreme Court determined that the detective who prepared the report had intentionally discarded the blood samples taken from the walls and ground where the attack occurred. The detective also stated that he had allowed the victim to wear her bloodstained pants home and never made any effort to retrieve them. The District Attorney’s Office assigned two other detectives to obtain the slacks but no serious effort was effort made to do so.

Dr. Shaler testified that if a blood sample were properly preserved, its age would have no impact on one’s ability to determine who it came from. Specifically, the blood on the victim’s pants would have been usable for testing, even after the passage of six years between the attack and trial.

The Supreme Court held that the detective’s failure to preserve the evidence collected at the scene violated Mr. McCann’s rights to due process, regardless of the fact that he had not actually been named as a suspect yet. A Queens Criminal Lawyer said that the court called the police negligent and irresponsible in their actions regarding the disposal of crime scene evidence and their blatant failure to retrieve the victim’s pants. The court also argued that based on Dr. Shaler’s testimony, the blood evidence was material to establishing guilt or innocence.

After determining the value of the discarded evidence, the court also had to decide whether the prosecution should be sanctioned for the police’s failure to preserve the blood samples. The court found that the prosecution’s arguments had no grounding and that the lack of suspect was irrelevant when determining whether or not to preserve evidence. Both the prosecution and the police impeded Mr. McCann in his ability to establish an alibi or to prove his innocence based on the physical evidence.

As such, the court found that the prosecution should be sanctioned for the police’s failure to preserve evidence that was elemental to establishing Mr. McCann’s guilt or innocence. The court deemed the only appropriate sanction would be to dismiss the charges and accordingly, granted defense counsel’s motion.

While the police and prosecution committed serious errors in this case, Mr. McCann still required the assistance of an experienced attorney in protecting his rights. Had he been convicted of robbery, sodomy or the sexual abuse charges, he may have faced a lengthy prison term.

If you’ve been charged with sexual abuse, sodomy or another serious sex offense, the law firm of Stephen Bilkis and Associates is available to help with your defense. Call 1-800-NY-NY-LAW to speak with a member of our sex crimes criminal defense team. You can also stop by any of our New York area office locations to speak with one of our attorneys in person. Don’t face the judge and jury alone. Contact Stephen Bilkis and Associates today to get the expert criminal defense you need to protect your rights.

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