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A mistrial resulted because of a deadlocked jury


A man was indicted and charged with the crimes of sodomy in the first degree, robbery in the first degree, sexual abuse in the first degree and two counts of criminal possession of a weapon in the fourth degree. The said crimes were committed but the man was not arrested until more than three years later.

The man was then tried for the crimes charged. A mistrial resulted because of a deadlocked jury which was reported to have said that its final vote was 10 to 2 for acquittal. The case consisted essentially of one-witness identification by the victim of the crime. A corporeal identification of the man was first made by the witness, more than three and a half years after the crime was committed, following the photo identification.

In preparing for a re-trial, the attorney of the man, who was newly retained after the first trial, requested the prosecution to produce certain evidence. The request was based upon the official police report prepared and signed by a detective. According to the report, the complainant struggled with her assailant and, in the course of the struggle the assailant cut his hand with his own knife.

The police report also discovered that a further search of the area revealed possible blood stains on the steps and wall leading to the roof door. Stains were small but a possible sample was removed and will be sent to the police laboratory for processing. The complainant’s pants also had a small blood type stain on them.

Based on the statements in the police report, the attorney of the man requested a copy of the police laboratory report pertaining to the blood scrapings and production of the blood-stained trousers for analysis. Some months thereafter, the district attorney’s office notified the man’s attorney that it could not locate either the blood samples, trousers or a laboratory analysis report.

The man’s party then moved to dismiss the indictment on the ground that the failure to preserve the evidence violated the man’s constitutional rights to due process, as articulated in a previous case.

Subsequently, a hearing on the motion was conducted by the court, at which the city of New York were directed to explain the failure to preserve the blood scrapings and the blood-stained pants, and the man was to produce expert testimony as to the value of the evidence if it had been preserved.

At the hearing, a doctor testified on behalf of the man. The city of New York then called the detective who prepared the police report and another two detectives.

As a result of the evidence presented at the hearing, the court made a finding of fact. The detective believed that the blood stains found on the steps, wall and complainant’s pants belonged to the perpetrator and was aware that it had forensic value for he knew that results of blood tests could be used to either identify or exclude possible suspects. However, he intentionally discarded the blood scrapings he collected after someone told him they were insufficient to send for analysis, although the person was not a serology expert. The officer also did not recall that he ever vouchered the complainant’s slacks, as he had intended. He had permitted her to wear them home instead of giving her substitute clothing, but he made no effort to retrieve them at a subsequent time. The two detectives locate the slacks after it was requested but failed to do so.

From the testimony of a serology expert, the court learned that human blood is comprised of several groups of characteristics, including certain genetic factors which can be used to distinguish blood samples. One of those is blood type, known as the ABO genetic marker system. There are also many other systems which can be used, until a unique genetic profile of a blood sample is arrived at, which distinguishes it from any other. Such exclusion can be made, not only with reasonable certainty, but with absolute certainty. Moreover, simply using two systems, the ABO and GM systems, it is possible to distinguish one blood sample from another in eighty-five to ninety percent of the cases. The age of the sample does not prohibit such analysis for, if it is properly preserved, it can be tested after many years and the methods of preservation are simple. In fact, blood permitted to dry at room temperature, as on the complainant’s slacks, needed no special preservation in order to be tested, even six years later.

The court also finds that the police acted in an irresponsible and negligent manner in discarding the blood scrapings taken from the scene of the crime without any attempt at testing them and in allowing the victim to wear her bloodstained slacks home and then forgetting to voucher them. The court further finds that the evidence was material on the issue of guilt for, according to the serology expert, the blood samples could have been tested and the results utilized to completely clear the man.

After determining the significance that the unpreserved evidence bears on the question of guilt, the next question is whether the prosecution should be sanctioned for the failure of the police to preserve such material evidence. Sources revealed that aforesaid issue was confronted the court with reference to tapes of conversations between the man’s and an undercover agent, allegedly concerning the sale of a drug. As with the blood scrapings and bloodstained slacks matter, no attempt was made to preserve the tapes which were unaccountably lost.

The court also observed that the cases point up an anomaly of the criminal process, controlled by rules of law protecting adversary rights and procedures at some stages. Moreover, the process at other stages is thoroughly unstructured. Beside the carefully safeguarded fairness of the courtroom is a dark no man’s land of un-reviewed bureaucratic and discretionary decision making. Too often, what the process asserts to secure in its formal stages can be subverted or diluted in its more informal stage. Assault was not charged.

Based on records, all vigorous procedures to govern preservation of such evidence by federal investigative agencies, including the police, would be required, the court concluded that a new trial of the case would be pointless since, without the testimony of the undercover agent, there would be no case and, therefore, the choice was either dismissal of the indictment. The case was then remanded for a hearing by the district court to determine which of those would serve the ends of justice with instructions to weigh the degree of negligence or bad faith involved and the importance of the evidence lost, and the evidence of guilt was presented at trial.

Where there is no other evidence connecting a man with the commission of a crime, except eyewitness identification testimony, the court has always been concerned that the wrong man not be mistakenly accused and convicted of a crime he did not commit.

As a result, the court finds that the prosecution should be sanctioned for the failure of the police to preserve evidence which was not merely material, but invaluable, on the issue of guilt. The court further finds that the one and only appropriate sanction is the dismissal of the indictment. Consequently, the court decided to grant to man’s motion to dismiss his indictment.

If one of your family members suffered sexual violence and you want to seek justice for what happened, you can ask legal guidance from the Queens County Sex Crime Lawyer. Nevertheless, Stephen Bilkis and Associates also recommends the expertise of their Queens County Criminal Attorney for sex crime related matters.

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