And that presents a dilemma for the criminal (in)justice system in New York. The NYPD has been looking south to New Orleans to find out how a major city police department handled its evidence problems after a massive storm. The answer is, not so well.
Seven years after Katrina damn near wiped out the city (with special thanks to the oil companies' destruction of the wetlands on the coast and the insanity that was the man-made canal to the south of the city), evidentiary problems remain.
On the one hand the state has a major problem on its hands as it can't produce the evidence in some cases because it was destroyed. Sure, there are computer generated lab reports and analysts who can testify as to what they tested in the lab - but there are no goods for the jury to see. Of course, when the court is bound and determined to deliver that conviction for the state, such niceties as the evidence itself aren't always necessary.
A defendant in Brooklyn, Manuel Castro, was one of the first people convicted of a crime based, in part, on DNA evidence destroyed during Hurricane Sandy. A jury found him guilty of robbery and attempted assault after a judge allowed testimony on evidence — a jacket and boots — that could not be produced in court because both articles had been at the Greenpoint warehouse, Mr. Banks said.
“We believe the ruling that permitted the evidence to come in was incorrect and we are appealing,” Mr. Banks said, adding that the situation was “a recipe for wrongful convictions.”
I suppose the argument could be made that the evidence was accessible to the defense while the case was pending and that if the defense chose not to retest it for tactical reasons then that's just too damn bad. But, there is something deeply troubling about allowing a witness for the state to testify about evidence that either no longer exists or that can't be located.
It might also give rise to concerns that if the police can't safeguard their own evidence, how can we trust that anything is what they say it is.
In the civil courts we have a concept known as spoliation in which if a party loses or destroys evidence that evidence may be deemed inadmissible depending on the circumstances of the destruction. In the criminal courthouse such evidence is only deemed inadmissible if the state acted in bad faith in destroying the evidence. Is negligence enough?
And what about the thousands of cases that will end in pleas? The state isn't required to produce any of its evidence until trial. When a defendant enters into a plea bargain, the state files a motion to destroy evidence - if the evidence even exists. In such cases there is no way to know whether or not the evidence was lost or destroyed as a result of the storm. What kind of justice is that? A defendant is being asked to plead guilty to a crime without being told whether or not the evidence the state needs to prove him guilty even exists. It's the perfect tool to coerce a plea.
But there is an even more troubling situation - once a defendant has been convicted of a crime, the burden of proof shifts from the state to the defendant. In order to exonerate a person convicted of a crime, that person must present evidence that provides indisputable proof of innocence. And what is one to do when that evidence no longer exists due to the inability of the state to preserve the evidence?
In the case of sexual assault and murder cases, DNA evidence may be the only evidence out there that can exonerate someone. And, if as a result of the NYPD's lack of care in storing evidence, that DNA evidence has been lost or destroyed, exoneration may very well be an impossibility.