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D.C. CRIME EVIDENCE IN DOUBT JUDGE SAYS REPORTS OF IMPROPER HANDLING THREATEN CASES

By Michael Powell & Bill Miller.

Washington Post, October 15, 1997.

A D.C. Superior Court judge warned from the bench yesterday that the reported mishandling of evidence at the police department's unguarded evidence warehouse and drug lab threatens to undermine numerous criminal prosecutions. "It's such an invitation to disaster," Judge Ellen S. Huvelle said. "It's going to affect every drug case in town."

Huvelle made her comments as she postponed the felony drug trial of a District man yesterday. She said she would consider whether the police department's problems, as detailed in confidential consultants' reports, could have tainted evidence in his case.

Booz-Allen & Hamilton Inc., which prepared the confidential reports for the D.C. financial control board, disclosed terrible conditions, including boxes of drugs stored on computers in the drug lab and unsecured guns and drugs in the warehouse. Police stored DNA evidence in rape cases in 110-degree heat, destroying their "evidentiary value," according to the consulting firm.

Several defense lawyers said the reports will give rise to questions in many of the roughly 7,000 felony cases-nearly half of them involving drugs-filed each year in Superior Court. They said the reports speak to the condition of evidence, the reliability of crime laboratory findings and the credibility of D.C. police officers who handled drugs, guns and forensic materials.

"I want to know if the experts who did this report concluded that the D.C. police could not reliably produce evidence obtained during an arrest," said Josh Bowers, the defense attorney in yesterday's case, who obtained the trial postponement from Huvelle. "If their own experts said the entire process is invalid," Bowers said, referring to Booz-Allen, "then defense attorneys will start asking the courts to throw cases out."

Bowers's client, Donnell Byrd, 21, is charged with possessing cocaine with intent to sell. The judge granted Bowers's request for an order compelling city officials to give him copies of the reports. "The reports," Huvelle said, "have to be brought in here. . . . We have to know if the drugs {in Byrd's case were} in the control of officers covered by this report."

James E. McLeod, a defense lawyer who tries cases in D.C. Superior Court, said he expects many colleagues to seek copies of the Booz-Allen reports. "I certainly will include it in my discovery requests," McLeod said.

McLeod said that he has been aware of the conditions at the police evidence warehouse for years but that having a document from a neutral source such as Booz-Allen would provide a foundation for challenging the way evidence is handled.

"It's fair game for attorneys to take advantage of whatever information is coming from these studies that would help defend their clients and prevent innocent people from being falsely accused and convicted," McLeod said. "Each attorney must ask, 'Did this procedure affect my specific case? You want to point to any irregularity," McLeod said. "Even if it did not directly affect your case, it would help in cross-examining government witnesses." Yesterday, prosecutors from the offices of the U.S. attorney for the District and the D.C. corporation counsel told Huvelle that they could not produce the Booz-Allen reports, which they said are in the sole possession of the control board. But Stephen D. Harlan, the control board's vice chairman, said later that top officials in the prosecutors' offices also have copies of the reports.

"It's not up to me to say what kind of damage the alleged administrative snafus might have caused," Harlan said, referring to warehouse and drug lab problems. "The facts are the facts." The U.S. attorney's office acknowledged that sloppy storage and, in some cases, loss and destruction of evidence by D.C. police has hindered cases. The office said the loss of DNA evidence in rape cases was particularly damaging. "In certain instances, it has made our job more difficult," said Channing Phillips, a spokesman for the acting U.S. attorney, Mary Lou Leary. "When evidence is properly collected and stored, it can make a case a lock." He added that Patricia A. Riley, the head of the U.S. attorney's sex crimes section, "is not aware of any trial that was ultimately lost because of evidence being lost."

However, a prosecutor noted that Phillips's statement did not address another problem presented by the destruction of sex crimes evidence: Sloppy handling of rape evidence prevents police from obtaining arrest warrants. Several defense lawyers said they would use the Booz-Allen reports in much the same way that lawyers across the country have used a blistering federal report issued this year that raised questions about the quality of work done at the FBI's forensic laboratory. The findings about the FBI lab have been used at evidentiary hearings to challenge law enforcement procedures and in some cases have been used during trials.

The FBI lab's practices came under scrutiny this year during the Oklahoma City bombing trial of Timothy J. McVeigh. The judge gave McVeigh's attorney latitude to challenge the FBI lab work in the bombing trial, which ended in conviction, but he prevented the defense from waging a broader attack.

Colin Dunham, the head of the Independent Public Defender Bar Association in Washington, said the Booz-Allen reports will be of "inestimable value." He said he expects defendants will be less likely to agree to plea bargains and more willing to risk going to trial because of the reports.

"These Booz-Allen reports are . . . very useful for the defense," Dunham said. "It's a shame we can't rely on the integrity of the police department to weed out these problems, but apparently we can't." Staff writer Cindy Loose contributed to this report.

NFFE Local 852 U.S. Army Corps of Engineers, Louisville District, 4/29/98.

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