Evidence Preservation: Who’s Responsible and What Happens When It’s Lost or Destroyed

Episode Notes

Transcript

Michael Semanchik:

Suppose the unthinkable happens, something just awful. The kind of thing most of us can’t even imagine. Suppose you’re falsely accused, convicted and sentenced to life in prison, or worse yet, the death penalty for a murder you didn’t commit. It happens. We know it happens. It happens all the time. My life’s work is dedicated to undoing these false convictions to free the innocent, and unfortunately, our client list keeps growing with no end in sight. Innocent people never see it coming. Suddenly they’re cast into a situation out of their control without any experience on how to protect themselves. Their world gets turned upside down. Their pillars of support gradually erode. They lose their job, they lose friends. Maybe they lose their spouse, and eventually after an excruciating trial, they lose their freedom. Most people are simply in shock. When this happens, many lose hope and become despondent. Unfortunately, this can be the worst time to take your eye off the ball. The very evidence you’ll need later to prove your innocence could be in peril. If you don’t act quickly, you could be losing your last shot at freedom. I’m Michael Semanchik, executive director for the Innocence Center, and what you’re about to hear is our season finale and perhaps the most important episode yet. But fear not. Season three is already underway, and in the meantime we’ll be releasing a bunch of off-season episodes to fill the gap. And now we proudly present evidence preservation

William Michael Dillon:

♪ Spent most of my life in prison chasing our dream call justice, chasing our dream, chasing a dream. Want somebody please hear my peace. Want somebody please set me free. ♪

Michael Semanchik:

Adequate evidence that follows chain of custody is not only important to convict the bad guys, it’s also crucial to exonerating the innocent at the Innocence Center. As with other organizations like it, we can’t even begin the process of exoneration until we have trustworthy evidence. It’s not enough that we believe a person is innocent. We must also be able to prove it. As we’ve covered in previous episodes, technology advances quickly in law enforcement and oftentimes evidence gathered in the past as the key to freedom, even if not recognized at the time. DNA technology is the most prominent example of this. Real people have been convicted on circumstantial evidence and questionable eyewitness accounts, but later shown to be innocent because their DNA did not match the DNA of the real perpetrator. But what if that evidence no longer exists? Evidence can degrade or be lost over time if it’s not stored properly. Sometimes counties throw it away to save money regardless of why. If it’s not there, it can’t help people when they need it the most. Fortunately, that was not the case for Luis Vargas. You might remember him from the previous episode. He’s a man from Los Angeles who was wrongfully convicted of rape and kidnapping on December 7th, 1999, and was subsequently sentenced to 55 years in prison. All in all, he spent 16 years behind bars before his exoneration and release on November 23rd, 2015. Here’s a brief recap on his story from Luis himself.

Luis Vargas:

My name is Luis Lorenzo Vargas to my family. I’m now, I’m a loving son, I’m a responsible father now, and I’m just a provider. They love me very much. They just got through celebrating Father’s Day and just gave me a big surprise that I was not expecting.

Michael Semanchik:

What was that surprise?

Luis Vargas:

Well, it still happened to come out on La Pinon. You know the newspaper in la. It came out on, there was a reporter by the name of Jorge Macias that went ahead and did a report on us and they went ahead and put down how we celebrated Father’s Day. They went ahead and took me to this one restaurant called The Voice over here in Santa Maria, California, and we just got together. Had a great time. Had a great time.

Michael Semanchik:

That sounds awesome. Well, happy Father’s Day to you.

Luis Vargas:

Thank you. Same to you guys.

Michael Semanchik:

Thank you. So what did you do before your incarceration? What did you do for work?

Luis Vargas:

Before my incarceration, I was a manager at a Manhattan bagel shop in North Hollywood on Sunset and Martel. I was working as a manager there.

Michael Semanchik:

Tell us about the evidence that ultimately set you free.

Luis Vargas:

I don’t remember the exact date, but I seen a Kcal nine news report. Next thing you know, out of nowhere I hear breaking news out of downtown la Serial Rapist Hunt, something like that. So since I was being accused of those type of crimes, it caught my attention. So as soon as I heard that Mr. Semantic, I went ahead and turned around, grabbed a pencil, and I started scribbling. I started scribbling on a piece of paper. Everything that was being said, it took about probably 10 minutes, a little bit over 10 minutes. When it was done, I turned around, I wrote everything legitimately on a piece of paper and I sent that letter to CIP. I found out later on that that was the letter that had them except my case.

Michael Semanchik:

So let’s fast forward to cips accepted your case. Raquel is working on the case. What sort of evidence did she come up with and how did she communicate results of what she was able to find?

Luis Vargas:

Raquel Cohen and Alissa Bjerkhoel came and visited me that one day and they showed me two papers, right? They showed me two graphs. The first graph they showed me was a very colorful one full of different numbers, different colors and all that, and they go, do you know what this is? I go, no. And they go, well, this is a DNA graph. And they said, this one belongs to the teardrop rapist. Then they went ahead and presented another one and they said, this is your DNA graph. They found out that my DNA was totally different to this man’s DNA that was in the database, which was the Teardra rapist. It was totally different.

Michael Semanchik:

Luis Vargas was very lucky that the rape kit still had viable evidence in good enough condition to free him. Countless others are not so lucky. In his case, not only was DNA from someone else found, but that DNA belonged to a repeat sex offender, someone who the police knew about but had not been able to catch. As we mentioned earlier, evidence degrades and gets lost over the years. That’s why it’s critically important to locate, locate it early and make sure it’s being taken care of properly. Without this evidence available, there is no way Luis would be free today. Raquel Barilla, formerly Cohen was staff attorney and volunteer coordinator at the California Innocence Project. She worked on the Luis Vargas case. Even with DNA evidence available, there were many things that needed to line up in order to free Luis from wrongful incarceration. Here’s Raquel and I talking about that case and how an infamous rapist and a lucky break recovering crucial evidence made all the difference.

Raquel Barilla:

Luis Vargas is actually one of the first cases I started working on when I was hired as a staff attorney at the California Innocence Project, and he was convicted of three sexual assaults in the Los Angeles area in 1999, I believe, and he went to prison for these three sexual assaults and claimed he was innocent from the day he was arrested at his sentencing and until we were able to actually prove he was innocent. So through DNA testing, we eventually got him exonerated and so he was one of my first clients and one of my first exonerations.

Michael Semanchik:

That’s awesome. How and why did the police focus on him? What was the thing that made them think he was the one that did it?

Raquel Barilla:

The victims in Luis Vargas’s case all identified at some point or another that their perpetrator had a teardrop tattoo on one of his eyes and the police started focusing on Luis because he lived in the general area of the attacks and he had a very faded light tattoo on the corner of his eye and that became the investigation to convict Louise Vargas.

Michael Semanchik:

So just based off the eyewitness accounts, the victim’s accounts that the perpetrator had this tattoo and Vargas had that a similar tattoo.

Raquel Barilla:

Right.

Michael Semanchik:

Tell us about who is the teardrop rapist?

Raquel Barilla:

The Teardrop rapist is an unidentified man living in the Los Angeles area or in the Los Angeles area between 1995 and 2012, who attacked approximately 35 to 39 women in the early morning hours. He would use a weapon, he would go up to Hispanic women between the ages of 14 and 40, ask for directions around a bus stop, and then he would relocate the women and attempt to sexually assault them. And the FBI has been looking for this man for many, many years. His last attack was in about 2012. Unfortunately, he has not been caught. He’s still on the FBI most wanted list, and he is actually responsible for the crimes for which Luis Vargas was convicted.

Michael Semanchik:

So Vargas obviously couldn’t have done all of those crimes because he was sitting in prison for the majority of those.

Raquel Barilla:

Correct.

Michael Semanchik:

How do you know that the teardrop rapist is responsible for the crimes? Vargas went to prison for,

Raquel Barilla:

There is a DNA sample for most of the teardrop rapist crimes, and when we got the case and we were able to look at the mo, it was identical to the teardrop rapist and so we were able to collect DNA evidence from Vargas’s cases and compare it to that of the teardrop rapist. And there was a match between the cases for which he committed for sure the strings that tied him and one of the three that Vargas was convicted of.

Michael Semanchik:

Let’s talk about the evidence in the Vargas cases. So he’s convicted of three separate sexual assaults. Was there evidence in all three?

Raquel Barilla:

Unfortunately, no. In the three cases he, the teardrop rapist only left DNA behind in one of Vargas’s cases. One other really important factor about the teardrop rapist that they’ve gathered over the years is that he’s easily scared off. And in two of the three cases against Vargas, the victims were smart in saying that. One of them said, oh, I see somebody coming. And then there was a loud bang in another, and so the perpetrator ran off before they actually were fully sexually assaulted. They were just relocated. And then the teardrop rapist got scared off and ran away. But unfortunately in one of the cases, the victim was actually sexually assaulted and so the teardrop rapist left DNA samples behind on the clothing.

Michael Semanchik:

And so it wasn’t that the evidence was destroyed in those two cases. It’s such that he didn’t leave any DNA behind that we know of.

Raquel Barilla:

Correct. And so nothing was collected interesting enough. The clothes that were collected from the victim who was sexually assaulted, she went home and showered and threw her clothes in the garbage, and the police actually collected those clothes from the garbage. And so we got lucky in so many ways that they did collect it, and then they did preserve it.

Michael Semanchik:

And even though the evidence was thrown into the garbage, you were still labeled to do some testing?

Raquel Barilla:

Yeah, the statute here in California says if their favorable results would make a difference, then we’re entitled to testing. And so because we had a known perpetrator and a profile available, we were able to do the testing to see if it would match. Now, had it not matched or been consistent with the teardrop rapist then I don’t know that we would be sitting here today talking about his exoneration.

Michael Semanchik:

Where was the evidence located when you went searching for it?

Raquel Barilla:

I’m pretty sure it was the police department. They were the ones who collected it and preserved it.

Michael Semanchik:

What would’ve happened if the evidence was gone? If they had thrown it out,

Raquel Barilla:

He would still be in prison and serving his term,

Michael Semanchik:

It’s a difficult thing to comprehend, let alone say, but it should be mentioned here, despite being misidentified accused and convicted for a crime he did not commit in the end, Luis Vargas was very lucky. First investigators had the wherewithal to collect the evidence discarded by the victim into the trash. That evidence was maintained and still available for Luis when he fought his conviction. Secondly, in two of the three sexual assault cases where he was falsely accused, there was no DNA evidence left behind. But in a third one, there was unfortunately that meant a victim had to suffer in a fateful ledger that’s impossible to balance. Her traumatic experience would help set Luis free. But as tragic as it sounds, the evidence left at that sexual assault would not be enough by itself. The resulting DNA would need to point to someone who would truly get law enforcement’s attention. Had it led to a random suspect, it may not have been enough to overturn Luis’s case, and that’s because of the eyewitness identifications. All three victims misidentified Luis Vargas as their attacker, and so it was going to take something incredible to sway the post-conviction courts.

Raquel Barilla:

This was such a heavy eyewitness identification case, and you have three victims eventually identifying Luis Vargas at trial, and at the time there wasn’t a conviction review unit. Now today, perhaps we could bring it to their attention, but I know even after we got the DNA in Luis’s case, they still were a little apprehensive for agreeing to the exoneration. It took a little bit of time even after having them saying, well, he’s maybe innocent of one, but what about the two others? So I would like to believe that today and given the new setup of the Conviction Integrity Unit in Los Angeles, we could have a discussion about it, but I don’t think it’s very promising. I think he would still be serving his sentence.

Michael Semanchik:

You brought up an interesting point. So this case, you didn’t have to go to the court in order to get the conviction reversed. Well, you did have to go to the court, but you went with cooperation from the District Attorney’s office.

Raquel Barilla:

That’s correct. They actually cooperated at the DNA stage. Also, they agreed, let’s just do the testing. We got the results, and then they wanted to do more testing, and those results were consistent with the original results. And then I had drafted a habeas petition and sent it to them and said, Hey, this is what I’m going to be filing unless you guys want to agree. And they at first said, let us think about it. We need to talk to the victims. They postured as if they were ready to go to court. And then one day I was in the office early morning, I think you were there with me, Mike and I got a call from the Los Angeles District Attorney’s office saying that they believed in his innocence and they were filing a concession letter. And we did that and a few, I think weeks later, we walked him out.

Michael Semanchik:

The Luis Vargas case was very challenging and not many attorneys could have accomplished what Raquel did. Her dedication to client and personal discipline certainly brought the matter over the finish line for his part. Luis was very smart to report the Teardrop Rapist’s MO to our offices. Not only did that catch our attention, but it would also cause the district attorneys to take a second look. The DNA profile from the victim’s clothes matched the teardrop rapist, and the MO was the same too. Everyone knew Luis and the teardrop rapist could not be the same person because while Luis was in prison, the rapist was active on the streets. And as Raquel mentioned earlier, had that DNA been from someone unknown, it is not likely that the DA’s office would’ve budged on the other two convictions. Ironically, even though the teardrop rapist’s crimes ensnared the innocent Luis Vargas, they also acted to free him post-conviction. It’s strange and tragic how the world works. Sometimes

When an innocent person is convicted and facing a long prison sentence about the last thing on their mind is evidence retention. But in reality, the quicker someone acts to preserve their evidence, the better. As we’ve witnessed with DNA evidence during the last 40 years, sometimes the technology just needs to catch up before you can take a second look at a case for an innocent person. It’s best to preserve every scrap of evidence from the crime scene. You never know what could be useful later. Although prisoners can do this from the inside, it’s always helpful to have family and friends assist on the outside. Alyssa Biko was the litigation coordinator for the California Innocence Project and also instrumental in the Louise Vargas case. She made some recommendations when I asked about those early steps to preserve the evidence.

Alissa L. Bjerkhoel:

What I would do is if I were a family member of somebody wrongfully convicted, is make sure that evidence doesn’t get destroyed. And how do you do that? You got to send letters, document it in writing, send letters to the exhibits room at the courthouse not to destroy it, send letters to the police department that invested the case not to destroy any evidence. That’s about all you can do as far as preserving the evidence until you are at a point in time, you’re able to get it tested.

Michael Semanchik:

So if you’re a family member, what sort of conditions would you hope for? Would you encourage law enforcement in the courts to employ when they’re saving DNA evidence?

Alissa L. Bjerkhoel:

I mean, obviously you want it to be stored properly, and that goes all the way from the packaging to the location that you’re putting it at. For example, a lot of biological evidence should be stored in paper packaging instead of plastic because the plastic can actually encourage mold growth and that can inhibit your ability to actually DA results later. So just having it stored in the appropriate packaging and then having it stored in conditions that are not too extreme because we know the extreme conditions are what can move the process of DNA degradation along faster like heat, for example, heat loves to destroy DNA. So make sure that this evidence is not stored in, say for example, a trailer in the deserts that’s out in the heat all day, that would not be a conducive environment for future DNA testing.

Michael Semanchik:

If you listen to true crime podcasts, one of the things you probably hear is how different states, counties, and cities can be when it comes to law enforcement procedures. Not every place has the same philosophy, budget or know-how that is why the crime occurs and where you’re arrested matter. In fact, it matters a lot. The evidence retention process can be drastically different depending on the zip code. Over the years, our organization has seen these differences play out in severe ways for our clients, and that greatly impacts what we can do for them. Alex Simpson was the associate director and resident expert for evidence preservation at the California Innocence Project. He has firsthand knowledge about evidence retention policies. He worked with C’S associate director of development and policy, Jasmine Harris to help craft better ways to preserve evidence in LA County. In addition, he was part of a movement to save archived evidence in San Diego when the city built a new criminal courthouse. Alex has a lot to say about this. We sat down and talked about the evolution of evidence preservation and where things stand today.

Alex Simpson:

So the typical evidence retention policies that you see across the country are really no evidence retention policies. There aren’t really any standardized lengths of time that people would need to retain evidence that investigating agencies or court systems would need to hold on to evidence after the person has been convicted. And the reason for that is that traditionally evidence retention was really only important to law enforcement, to prosecutors and to the court system to make sure that the evidence was still available for trial after the person’s been convicted. There wasn’t a concept that evidence needed to be retained past that mostly because the person had been convicted and it was time to move on to the next case.

Michael Semanchik:

So is it safe to assume that beyond conviction in the eighties and nineties, evidence was just tossed out

Alex Simpson:

In the 1980s and the 1990s, we started to see some shift of thinking with regards to evidence retention, mostly as a result of the changes to DNA technology and testing. But before that period of time in the seventies, eighties, nineties, most of the time the evidence was focused and remained focused on can we retain the evidence for the purposes of trial for prosecution conviction once the person was convicted. The reason for holding onto the evidence the system, the quote unquote system, didn’t really see much of a point to it because the reason why we had the evidence had now been completed and there wasn’t really much of a point to retaining it after that.

Michael Semanchik:

Historically speaking, the emphasis on evidence being available for trial as opposed to appeals and innocence cases made sense. Back in those days, innocence projects were non-existent and no one could have imagined the long-term value of DNA evidence. It was simply incomprehensible that someday microscopic evidence left behind at crime scenes would be able to identify a perpetrator decades later. Of course, everyone knows about DNA’s ability today, but sadly, that might be too late for innocent people whose evidence was lost, destroyed, or discarded. That is why many are pushing for change to make sure evidence used to convict remains. Here’s more from Alex.

Alex Simpson:

What we are increasingly seeing more and more with regards to the approach that we have to evidence retention in the criminal legal system is that we recognize that there are developments changes in the science developments in DNA testing, for example, that have now made previously untestable pieces of evidence testable, where you can find 10, 15, 20 years down the road somebody who had previously been convicted, they can now use some of these new techniques to show either that they are innocent of the crime or prosecutors now use those types of evidence testing that is previously unavailable to confirm that the person was guilty of the crime. And that is as a result of what we see with regards to evidence retention. You can’t test the evidence 20 years later if the evidence has been destroyed. And so that’s why it’s very important that we have robust evidence, retention practices, policies and laws to ensure that the evidence is held on as long as possible.

Michael Semanchik:

Is there an endpoint at which point we can get rid of evidence or is it just keep it as long as it’s forever? When do we call it quits and decide we can get rid of it if ever?

Alex Simpson:

The question is if we’re not going to destroy the evidence immediately after trial, when is it appropriate for us to destroy the evidence in a case? I think a good rule of thumb is, and one that we at the California Innocence Project have been trying to get California to adopt, is at least as long as the individual is in custody, the evidence in their case should be preserved. And that is for the simple reason that for as long as they’re in custody, there is a chance that the evidence that the technology could develop in a way that they could test that evidence and get their conviction reversed and revisited. I think it makes sense for us to hold onto the evidence at least as long as the person is in prison.

Michael Semanchik:

And then as far as how we’re keeping it, how is it best preserved? Are there ways, methods in which DNA stays on evidence that we should be employing?

Alex Simpson:

There are a number of pieces of evidence that are subject to degradation. There are a number of pieces of evidence that can be unfortunately unusable if they’re not preserved properly. And there have been tremendous strides in the retention and preservation of evidence that have allowed people to test pieces of evidence gears sometimes decades after the crime occurred. But what we really need to do is make sure that the evidence retention policies of law enforcement, of prosecutorial agencies and of courts is standardized and is ensured that the best possible chance for the evidence to be testable later on, that we have that best possible chance depending on what the research and the latest scientific developments allow us to do.

Michael Semanchik:

So one of the big arguments against preserving evidence is always the cost. If we keep everything and we keep it as long as everyone’s in prison, if we have to start keeping everything in refrigerators and refrigeration costs a lot of money, how do we make that call? How much should we be investing in evidence retention and how much should a government invest in keeping all of this?

Alex Simpson:

Yeah, so the question is when we’re trying to make an assessment about how much we should invest in evidence retention, we have to offset it with the likelihood that a person will be able to get their conviction reversed and that it’s a meaningful reversal of their conviction. Because every person who is able to test evidence 20 years down the line and is able to get their conviction reversed, that means that we have saved, the state of California has saved a considerable amount of money in the wrongful incarceration of this individual. So it’s around a hundred thousand dollars a year to house an individual in California. And if you have a person who is wrongfully convicted and is not able to test the evidence and spends another 20 years in prison for a crime that they didn’t commit, that’s $2 million just in that one case. So the cost to the state can be fairly small when compared to how much money the state saves in securing a reversal of somebody’s conviction.

Michael Semanchik:

One of the really discouraging things in our line of work is when evidence custodians falsely report that evidence is missing when it’s not. This happens with enough frequency that we always request a physical search as opposed to just a record search. It is both amazing and frightening how often those records are simply wrong. Alex worked on this as part of his policy objectives that were submitted to various authorities. He was trying to improve the criminal justice system from the inside with new ideas designed to protect innocent people from being ensnared by its blind spots and cracks.

Alex Simpson:

What we saw over the last 20 years of working at the California Innocence Project is that there are two ways to search for evidence that law enforcement participates in. The first way is to look at their records, whatever system they use, they do a search in the computer and the search says the evidence has been destroyed or the case doesn’t exist in their system. So that’s one way to do the search. And the problem with that obviously is it’s the old adage of garbage in garbage out. If the police agency is not making sure that the data that they put into their system is correct, then they could get a situation where they’re not actually sure what evidence they have available. The second way, and probably the better way to do it, is to require that if some evidence has been documented to be in the system, either in a law enforcement organization or prosecutor’s office or a court, that you have somebody physically look for the evidence. And I say that not because hypothetically that might result in evidence being discovered. That happens, and that has happened in our cases on a number of different occasions

Michael Semanchik:

Where they’ve noted that the evidence was destroyed and then a physical search revealed the evidence had not actually been destroyed.

Alex Simpson:

Yes, we have a number of cases where we have been told by law enforcement agency, for example, oh no, I see in the system the quote unquote system that the evidence has been destroyed. And then when a court orders the law enforcement agency to conduct a physical search, all of a sudden there’s a lot of evidence that’s discovered and there’s a question as to whether or not the law enforcement agency actually did look even through their system. There’s a question as to whether or not they just said, yes, I’ve looked through the system and the evidence has been destroyed. It may have been that they get a request to look for the evidence and they look around their immediate vicinity and they say, ah, I don’t see anything. I’m just going to tell them that the evidence has been destroyed. So there’s no real incentive for law enforcement, for prosecutors, for even courts personnel to conduct a physical search. That’s why you really do need to have a policy, some law in place that requires a physical search, otherwise people just don’t do it.

Michael Semanchik:

How scary is that? It’s tragic enough when evidence is lost or destroyed, but when someone’s life hangs in the balance, some departments and their personnel won’t do a thorough physical check to make sure the evidence is really gone unless you push the courts to mandate it and even then you’re not sure they actually did it. This sort of thing impacted one of our cases in a very direct way. There’s a case that you worked on the Michael Handline case. He was convicted back in, I believe, 1978, or at least the crime happened in and around there. Can you give us a quick summary of that case?

Alex Simpson:

I will try to give an elevator pitch summary of that case. Michael Handline was convicted of the murder of an individual named JT McGarry in 1978. He spent 36 years in prison for that crime. The evidence that we were able to discover, and this was a joint investigation from the District attorney’s office in our office, we were able to uncover DNA evidence that had for some unbelievable stroke of luck, had still been preserved and was in a testable condition. Somebody just put all of the evidence of the case in a box and threw it in the back of the store room and forgot about it. And so 30 years later, we were able to test that evidence and show that Michael Handline was not responsible.

Michael Semanchik:

What type of evidence was it? What materials were you able to actually test some three decades later?

Alex Simpson:

So the prosecution’s case turned on a theory that Michael Hanlon and his co-defendant had kidnapped the victim, tied him up with a piece of rope and shot him, and then transported the body to a second location and then dumped the body. The body had been discovered a couple of days after the murder by law enforcement, and the victim still had his hands tied behind his back with this rope. The rope was still in evidence 30 years later. And the beauty of the Handline case is that because the crime occurred in 1978, there was no concept of DNA being left by perpetrators. So when somebody will commit a crime, they wouldn’t bother with some of the stuff that they do now with gloves, for example, or with concerning that you’re going to wipe things down to erase your presence there. So the perpetrators in this case tied this person up without wearing gloves, and a lot of their DNA was still on the rope even 30 years later

Michael Semanchik:

Without that DNA evidence, do you think you would’ve ever won the Handline case

Alex Simpson:

Without the DNA evidence? The District Attorney’s office told us categorically that they would not agree to any reversal of the conviction. We found other evidence that showed other people confessing to the crime, admitting to being the participants and perpetrators of the crime. But the case turned on the DNA. The District attorney’s office specifically told me that unless the DNA came back and showed that other people were their perpetrators in the crime, they would vehemently fight any challenge to the conviction.

Michael Semanchik:

The moral of the story is that not only do we need to preserve the evidence, we must be able to locate all of it when it’s needed. As we learned here, records are not enough. At some point, we must physically verify whether evidence exists or not. Every piece is critical for someone’s fight for freedom. It is easy to be a critic. All one has to do is rail against something that they probably didn’t create in the first place. It’s quite another thing to build or repair something. Criminal justice is a rough business despite the most noble intentions. There will always be flaws in any enterprise that involves human beings, but that fact doesn’t get us out of our responsibility to try. Through our years practicing in this area of law, we have learned many things about evidence and evidence retention. We’d all like to see more ideal conditions for everyone involved. But what does that look like? Alex had some thoughts about the perfect world for evidence preservation.

Alex Simpson:

I think the easiest way to look at evidence preservation is to recognize that there are a number of cases that would not have been reversed, but for the fact that we had held onto the evidence for an extended period of time. We don’t know what types of developments we will see in DNA testing and fingerprinting analysis in other types of forensic science analysis, but we do know that those developments will likely be employed in the future. So I think at the very least, we should have policies that evidence be retained for the entirety of the person’s time while they’re in custody, while they’re in prison. And certainly for cases which are the serious cases, cases where the person has been sentenced to a sentence of 15 years or more, or even 10 years or more. Obviously, I don’t think anybody would agree to do a life sentence and then be told, oh, hey, there’s a new piece of DNA testing that could have been helpful to show that you’re innocent. It’s just that your evidence was destroyed 10 years ago. I’m really sorry to hear that. Good luck. Good luck with the rest of your incarceration. So at the very least, I think we need to have robust evidence retention policies that require law enforcement, prosecutors, court systems to hold onto evidence, at least for the life of the person’s time in prison, and especially for those cases where the sentence is 15 years or

Michael Semanchik:

Longer. So what should we take away from all of this? Well, for starters, false convictions are real. They happen all the time. Despite our best efforts, the innocent are still getting ensnared by our criminal justice system. We must continue our fight for freedom. The best tool we have for that is evidence. It is critical that we preserve it for future efforts. If you a loved one or someone gets incarcerated for a crime they didn’t commit, you must move fast to preserve the evidence. Send letters to the courthouse, send letters to the police department and request that they not destroy the evidence. Reach out to your local Innocence organization and ask them for help how evidence is stored matters. Follow up with the authorities to make sure that your evidence is being stored in the most ideal conditions. Check in periodically to make sure the evidence is still there when and where possible.

Ask for a physical search. And lastly, and most importantly, don’t give up on your innocence. Just because your evidence isn’t your key to freedom today does not mean it won’t be valuable later. Technology is constantly evolving. We have no idea what is in store for the criminal justice system in the future. I’m Michael Semanchik, and you’ve been listening to For The Innocent here on Legal Talk Network. We now conclude season two, but stay tuned. We will be releasing periodic episodes and updates while we finish season three. Until next time, it’s been a privilege to be here with you. Thank you for spending your time with us and welcoming this podcast into your world. We know there are a lot of shows out there, and we really appreciate that you’ve tuned into ours. If you’d like to learn more about the cases we work on or know someone who needs our help, you can find us at theinnocencecenter.org. Until next time, I humbly leave you with this. Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality tied in a single garment of destiny. Whatever affects one directly affects all indirectly. Dr. Martin Luther King, his letter from the Birmingham, Alabama Jail, April 16th, 1963.

Continue Reading