Attorneys brace for problems caused by Sandy’s destruction of evidence

January 2, 2013 By Charisma L. Miller, Esq. Brooklyn Daily Eagle

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Brooklyn’s 2013 Criminal Term may face several hurdles in the new year due to the damage caused by Hurricane Sandy to evidence stored in warehouses.

The auto pound and evidence warehouses where the NYPD store hundreds of seized cars, thousands of guns and 9,846 barrels of evidence containing sensitive DNA material suffered tremendous damage during the October storm.

As the wind and storm waters surged, the doors to these warehouses, located in the waterfront neighborhoods of Red Hook and Greenpoint, were breached. Much of the evidence housed inside suffered water damage, or worse yet, was washed away.

During the superstorm, the Brooklyn courts went above and beyond to ensure that access to justice was not severely hindered. Court personnel opened as many parts as possible while they ensured the safety of employees and visitors. They also worked around the clock to accommodate delays to cases due to attorneys being unable to attend trial dates.

In recent criminal cases, the loss of evidence has played a major role. Paul J. Browne, the chief spokesman for the Police Department, said that in at least six criminal trials in recent weeks, a police official has had to testify that evidence was inaccessible, even though it still physically exists.

Despite the aforementioned cases, however, prosecutors and defense attorneys alike do not predict too many problems.

“My courtroom has not been impacted by the loss or destruction of evidence stored in the NYPD warehouses,” said Brooklyn Supreme Court (Criminal Term) Justice Alan D. Marrus. “There is nothing new about lost or compromised evidence. We just have to learn how to work around it.”

“Frankly, I do not see this having too much of an impact on how defense attorneys dispose cases,” added noted Brooklyn criminal defense attorney George Farkas. “We, as defense attorneys, do not rush into the disposition of cases. If it so happens that for some unknown reason [natural disaster or negligence] that evidence gets lost, so be it. That is the nature of criminal trials.”

The rules of evidence governing criminal trials require prosecutors to divulge evidence against defendants. If the evidence is such that it can lead to the exoneration of a defendant, then such evidence must be given to the defense promptly. On the other hand, non-exculpatory evidence is often not known to the defense until it is presented at trial.

As a result, in cases where evidence has been compromised by Hurricane Sandy, plea bargaining may serve as a useful tool for prosecutors.

“Many questions arise from this situation,” said Justice Barry Kamins, administrative judge of the Criminal Court of the City of New York. “One is whether must tell the defense whether evidence has been destroyed when they are in the midst of plea bargaining.”

Steven Banks, chief lawyer for the Legal Aid Society, told the New York Times that “The government may well be fashioning plea deals based upon the lack of underlying evidence. We can ask if it’s there, but they don’t have to tell.”

Marty Needleman, chief counsel for Brooklyn Legal Services Corporation A, notes that aside from legal concerns, the prosecution may have “moral obligations to dismiss a case or drop charges even where they believe a defendant to be guilty” where the physical evidence is no longer available.

Some defense attorneys view this as a possible silver lining. “If, for example, it is a drug case, and the drugs have not yet been tested and have been destroyed by the storm, then there is no plea bargaining. The prosecution has no case,” said Farkas. In his opinion, “If evidence is missing, then that [fact] in and of itself is exculpatory and must be handed over to the defense.”

Brooklyn prosecutors are doing the best they can to provide fair and unbiased justice. “We will continue to notify defense attorneys as soon as we learn that vouchered evidence has been stored in one of the two damaged facilities, and will continue to examine the issue on a case by case basis,” noted Jerry Schmetterer, director of public information for the Brooklyn District Attorney’s Office.

While there are practical concerns about damaged evidence and how it will effect pending trials and plea bargains, questions about the future also arise. Just as many homeowners are weighing whether to rebuild their houses near the waterfront, the NYPD will have to reevaluate where and how evidence is stored in the future.