January, 2007

HEADLINE:  Mistrial viewed as accident

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FORT PIERCE -- The mishandling of evidence that caused a mistrial in a capital murder case this week may have been an accident, but that's little comfort for a family seeking closure 2 1/2 years after a loved one's death. After a hearing Thursday morning, Circuit Judge James McCann said he was convinced the Fort Pierce Police Department is taking care of problems with missing evidence, which caused him to declare a mistrial Tuesday in the murder case of 28-year-old Alwin Tumblin of Fort Pierce.

Tumblin is charged with the shooting death of auto repair shop owner Jimmy Johns during a May 2004 robbery. After one day of testimony, his trial was halted after it was discovered that Detective Joe Coleman, the lead investigator on the case, had not turned over several video and audio recordings of interviews with Tumblin and witnesses in the case.

In declaring the mistrial, an infuriated McCann ordered a thorough search of the police headquarters for any additional undisclosed evidence.  On Thursday, Assistant State Attorney Lynn Park reported that she and Capt. Frank Amandro, head of the department's investigative unit, found three more audio tapes -- recordings of 911 phone calls on the day of the shooting -- in Coleman's cubicle.  Still, McCann said he was "sure measures are being adequately taken (by the police department) to make sure this does not happen again."

He also noted that the mistrial had caused "a great expense," both in taxpayers' money and in lost time and effort.  "I'm not unmindful," he added, "of the tremendous emotional expense to the members of the (Johns) family."  Acting Police Chief Sean Baldwin attended the hearing at McCann's request but did not address the court. Afterward, he stopped to apologize to several members of Johns' family in the courtroom.

"This is a painful process for all of us, especially the victim's family," Baldwin said afterward. "(The police department) had a role in delaying this trial, and I'm truly sorry for that."

Johns' stepdaughter, Patricia Sanders of Fort Pierce, said Baldwin's apology "meant a lot to us," adding that the family agreed the mishandling of evidence was a mistake.  "Unfortunately, it happened," she said, "and unfortunately, it's caused a lot of heartache. ... We're tired; we want this over with; we want justice. We've been through 2 1/2 years of hell."  McCann scheduled a docket sounding -- a hearing to determine if a case is ready for trial -- on Feb. 21. Defense attorney Rusty Akins said he didn't expect a new trial to begin until May, which would be three years after Johns' death.

January 2, 2007 

HEADLINE: Cleaning out police evidence rooms a delicate task

If a weapon has been made, Elmer Stewart has likely seen it. Twice a year, the employee of James City Service Authority destroys an arsenal of guns, rifles and knives and a medicine chest of drugs the remnants of police evidence rooms that have served their purpose. "Contraband and items of evidence have to be destroyed," James City County property officer Mike Spearman said. "Really, what else would we do with it?" Once a crime is fully prosecuted, police can't just throw the evidence in the trash. State laws govern the storage and disposal of such items, and keeping contraband from piling up is a continuing challenge for police departments.

"We are constantly getting evidence in," said Sgt. Rick Compton, supervisor of property and evidence for the Newport News Police Department. "That can become a little bit overwhelming if you're not constantly getting rid of it." In 2005, Newport News police took in 34,927 new items including 582 guns and disposed of 19,411 items from their evidence room, Compton said. Williamsburg police Lt. Andy Barker estimated that thousands of items passed through his department's property room each year, with 1,500 to 3,000 items there at any one time. Hampton property supervisor John Harrison said his office handled about 4,000 items a year. Newport News stores evidence in the police headquarters and a warehouse. The disposal process that police department's use is regulated by law and largely the same across the state. The first step is finding out exactly what can be thrown away. Sometimes, after a case is over, a judge will issue a destruction order for the evidence involved. 

Spearman said evidence could usually be disposed of about a year after a case was tried. The exception is death penalty cases, which can go through years of appeals. Departments also typically hold on to evidence that might contain DNA, Compton said." The 'just-in-cases' are the ones that cost us space," he said. Any item under consideration for disposal must be approved by the investigating officer, the commonwealth's attorney's office and a judge. For security reasons, police departments don't disclose when they're planning to dispose of evidence, but most do it at least several times a year. 

In December, Spearman went to the James City County landfill with 80 court orders representing about 150 items. The list included thousands of dollars in marijuana, Ecstasy, mushrooms, heroin, cocaine and other drugs, which he burned in a large metal barrel along with nonmetal drug paraphernalia." Of course, you don't have anyone anywhere near it," Spearman said. "It's potent. The smoke changes from white to gray to black." Later, it was off to the service authority garage, where Stewart and his torch tackled the guns, knives, and other metal items. The destruction complete, court orders for each of the items were signed, notarized and returned to the judge. Then, Spearman headed back to the evidence room, where more items awaited processing." If you don't move it out," he said, "it gets higher and higher."

Information from: Daily Press, http://www.dailypress.com

January 6, 2007 Saturday

HEADLINE: Evidence of crime is gone, so's the conviction;

Man freed in Lee deputy's shooting;

Mark Gilson is a free man today because someone in the Lee County Sheriff's Office destroyed evidence in 1997.  Gilson, 40, of Naples, was convicted that year of attempted murder for shooting sheriff's deputy Mark Cohen in the leg in 1994.

He was freed from the Lee County Jail late Thursday after spending almost 13 years in prison. Gilson had been sentenced to 40 years in prison when he was convicted.   "I am elated beyond comprehension," Gilson said Thursday from his parents' home in Naples. "I shouldn't have been locked up for one day, let alone 12 and a half years."

Cohen, who's a sergeant in the domestic violence unit, refused to comment on the court's ruling, which was signed Thursday.   Lee County sheriff's Sgt. Larry King said the situation is disappointing.  "It's not unusual for us to encounter a situation where the bad guy is back on the street earlier than expected," he said. "It comes home because it's 
one of your own."

Cohen pulled Gilson over at U.S. 41 at Island Park Road on June 20, 1994,
during a traffic stop, court records show. Cohen was shot and returned fire on the suspect, hitting him in the stomach, he testified during the trial in 1997. Gilson fled and was found hiding under a house. He was shot - once in the head and twice in the legs - when deputies trying to capture him said he made a "furtive move."

He wasn't armed under the house, police said at the time. He was left in critical condition.   In Gilson's account, he said he went to Slugger's Sports Bar and Grill, 
Now called Spectator's, with an acquaintance he only knew as "Richard."  The acquaintance needed a ride and when Cohen pulled over the car, Gilson said, his passenger started slinking in the seat and eventually opened fire on Cohen.

"The guy just starts shooting," he said. "It happened so fast, it was hectic."  Gilson was shot in the back and fled down the street and hid under the house until he was shot again and sheriff's dogs dragged him out.   The prosecution relied heavily on Cohen's account that he shot the suspect who shot him in the stomach.

Gilson said his clothing, vehicle and the bullet removed from his body could prove he was shot in the back, not in the stomach. That evidence wasn't admitted during the trial and was destroyed after the trial, despite a court order to protect it.   King said evidence is typically stored inside the sheriff's office or its impound lot until all appeals are exhausted.   Capt. Rick Joslin, in the forensics unit of the criminal investigation division, said the policy at the time would have called for the lead detective in the case to check with the state attorney's office to see whether all appeals had been exhausted. The detective then would file a letter to the evidence room calling for its destruction.

The current policy on evidence, he said, calls for more signatures and review, including from himself and the major crimes captain. Joslin said evidence in major crimes currently is not being destroyed to avoid a situation like this one.

"We're going to do everything we can to make sure nothing like this happens again," he said.   It seems, he said, the court order never made it to the sheriff's office.  "We didn't know of the court order," he said. "We would have nothing to gain by going against that court order.   Gilson filed a motion to appeal the conviction on the basis of ineffective
counsel because his attorney, Tamara Lynne Nicola, of Naples, allowed prosecutors the chance to present Gilson's confession during the trial when she questioned a detective about the interview. Gilson was medicated and wasn't read his rights, according to court records.

Court records show Gilson wanted to hire a reconstructionist to show that the bullet that hit Gilson came through his back, not through his abdomen, as Cohen testified.   "This avenue has been forever foreclosed due to the actions of the police," Gilson's motion to dismiss the charges states.   Gilson also was serving time for a 1997 conviction in Collier County for possession of a firearm by a convicted felon. He was convicted in 1990 of
burglary and grand theft.

He walked out of the Lee County Jail around 7 p.m. Thursday, he said.   His attorney, Assistant Public Defender Neil McLoughlin, said that without the destroyed evidence, Gilson had no shot at a fair trial.

"This is why a lot of people object to the death penalty. After that, there's no appeals," McLoughlin said. "This is the system working."   Assistant State Attorney Cynthia Ross, who worked on post-conviction issues regarding the case, said the state attorney's office is going to review the order to see whether there are grounds for an appeal.   Gilson said he plans to take about a month to visit with friends and family, who have begun calling and catching up with him. He was working in a tile business in Miami at the time of his arrest, he said.

He said during the time he spent at the Dade Correctional Institute in Florida City he could "suppress reality" to help him forget where he was. Although when his parents visited, he said, he soon would remember that he was facing decades more in prison.   "I can't even explain the despair you face at times," he said. "I can't explain it - it's just a horrible feeling."

He said he feels sorry for Cohen and doesn't hold any grudges with the sheriff's office or current prosecutors. But he felt he was wrongly convicted in 1997.   "There was so many discrepancies," he said. "I praise God for helping me."

January 8, 2007 

HEADLINE: APS Police Chief Put On Leave; Decision Related To Internal Audit

Albuquerque Public Schools police chief Gil Lovato was placed on paid administrative leave during the weekend after he asked a subordinate to retrieve office records related to evidence seizures, the Journal has learned. APS superintendent Beth Everitt took the personnel action Saturday - one day after APS launched an internal audit of the police department's books. Part of the focus relates to money tagged into evidence and where it went. The audit is also looking into whether a police supervisor improperly collected overtime pay under Lovato's watch. Lovato on Sunday declined comment when contacted by the Journal except to say, "The only thing I can accuse myself of is working hard." 

Another top APS official instructed all sworn and civilian personnel in the school district police department not to discuss the audit or reveal what was said to auditors. Everitt on Sunday said she couldn't get into the reasons behind her decision to place Lovato on leave, but said, "It's not uncommon during an investigation that someone's placed on leave so the investigation is not possibly hindered in any way." Asked why Lovato wasn't immediately placed on leave on Friday when the audit began, Everitt said, "It just depends on the circumstances. Sometimes an individual is put on leave and sometimes they're not. It's really based on individual circumstances." Everitt said Sunday she wasn't aware Lovato still had his APS take-home car and a set of master keys to the police offices. Asked why those weren't taken away when he was put on leave, Everitt said, "It really is dependent based on individuals. 

He will not be going to his work site." APS police employees told the Journal that on Saturday morning Lovato phoned a sergeant who had been in charge of the evidence room and told him to go to police offices on University SE and find certain documents for him that related to the seizure and destruction of evidence. Lovato also wanted to know what was said to Internal Auditor Allen Wesson the day before, the police employees said. Police employees notified Wesson and Lovato's immediate supervisor, deputy superintendent Tom Savage. 

Wesson went to the department on Saturday to look for more records and removed a large box of documents. The employees told the Journal the sergeant did not give Lovato the records he sought. Later Saturday, e-mail was sent reportedly at Savage's direction to all APS police employees. In addition to telling them not to discuss the audit, it said supervisors were under orders "not to discuss or ask any questions of any member of the department that could be related to this investigation." Employees confronted by Lovato or any other APS police employee about the investigation were to advise any of the three APS lieutenants or Savage, according to the e-mail. 

The Journal was also told an APS lieutenant reported receiving a phone call Saturday from one of his detectives who said Lovato was ordering the lieutenant not to remove any documents from the office. By the end of the day, Lovato was placed on leave. Everitt said now that Lovato is on leave, "he cannot work with the staff or ... issue orders to his staff."Everitt said the administration will select someone today to take charge of the department while the inquiry continues." We take any allegation seriously," she said. 

"We have a whistle-blower policy to protect our employees and we just want to make sure that anything that has been brought up as a concern is fully addressed." Lovato, who has headed the agency since 1990, supervises 40 sworn officers and 60 civilian personnel in the policing of the APS school campuses and property, according to the district's Web site.

January 09, 2007 09:29 pm 

HEADLINE: Former officer sentenced in evidence room theft

BYLINE: Michael Davis mdavis@henryherald.com

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What to know: The former McDonough Police lieutenant accused of pawning guns stolen from the department’s evidence room pleaded guilty Tuesday to all charges and was sentenced to 10 years in prison with three to serve.

A former McDonough Police lieutenant accused of pawning guns stolen from the department’s evidence room will spend three years in jail after pleading guilty Tuesday in Henry County Superior Court to 19 counts related to the thefts.

Joseph Heath Mathews, who was with the department for just over three years and was in charge of the evidence room, was indicted June 1, 2006 on 14 counts of theft by taking, four counts of making a false writing and one count of making a false statement, after authorities uncovered the scheme.

Mathews, 32, also took a utility trailer from an impound yard used by Henry County authorities and falsified tax records to obtain a tag for it, according to the indictment. He resigned from the department in March of last year, not long after the investigation began.

Mathews pleaded guilty to all counts in the indictment and was sentenced to 10 years in prison with three to serve behind bars, his attorney, Richard Schrade Jr. said Tuesday.

Mathews was also fined $1,000 and ordered to pay more than $2,400 in restitution, Schrade said.

According to the indictment, Mathews stole 13 rifles and pistols over a period from 2002 to 2006. In one instance, he ordered another officer to falsify an evidence room document by writing “Destroyed per DA letter” on it, knowing it had not been destroyed.

McDonough Police Chief Preston Dorsey said in June that another officer brought irregularities in the evidence room to his attention, and after a preliminary investigation, the district attorney and Georgia Bureau of Investigation were involved.

Henry County District Attorney Tommy Floyd said his office maintained copies of the original records of the guns’ seizure that were checked against McDonough’s records and found discrepancies in those maintained by Mathews.

Guns that matched those seized by the department later turned up in pawn shop records as having been sold or pawned by Mathews, authorities said at the time the indictment was handed down.

“These people cleaned their own house. They brought it to us,” Floyd said of the McDonough police. “We felt that there ought to be some time in prison involved and the court agreed,” he said.

“It was a very thorough investigation and it was turned over to the court system and the court system saw fit to do what needed to be done,” Dorsey said.

January 11, 2007 Thursday

HEADLINE: Former police officer sentenced for stealing from evidence room

McDONOUGH - A former police officer has been sentenced to 10 years in prison with three to serve after pleading guilty to pawning guns stolen from the police evidence room. Joseph Heath Mathews pleaded guilty Tuesday in Henry County Superior Court to 19 counts related to the thefts.

Mathews, who was in charge of the McDonough Police Department's evidence room, was indicted last June on 14 counts of theft by taking, four counts of making a false writing and one count of making a false statement.

Mathews, 32, stole 13 rifles and pistols from 2002 to 2006, according to the indictment. He also took a utility trailer from an impound yard used by authorities and falsified tax records to get a tag for it.

In addition to the time behind bars, Mathews was fined $1,000 and ordered to pay more than $2,400 in restitution, his attorney Richard Schrade Jr. said.

The investigation that led to charges against Mathews began when another officer noticed irregularities in the evidence room, McDonough Police Chief Preston Dorsey said.

January 18, 2007 Thursday

HEADLINE: Probe: Chief violated no law;

Ruling labels former leader incompetent

A former Jonesboro police chief was incompetent but not criminal in a case that led him to resign, the Clayton County district attorney's office has concluded. Chief Jim Roberts and police evidence custodian Sgt. Brian Fornal resigned in October when the Georgia Bureau of Investigation started examining documents related to the disposal of a moped from the evidence room. Clayton chief assistant District Attorney Todd Naugle said the results of that query show the men did not violate the law. "Neither one [signed] documents the way they should have and the circumstances were suspicious, but they didn't violate any laws," Naugle said. "We can't prove anyone did anything illegal." Roberts tried to get his job back, but the Jonesboro City Council filled that position permanently with interim Chief Wayne Rowland.According to the GBI report, agents found that Fornal backdated documents in connection with a moped from the evidence room.  Fornal gave the moped to Sgt. Chuck Kimbell, who tried to sell it, according to an account from Kimbell in the district attorney's report.Fornal showed an investigating GBI agent a document dated Oct. 19, 2005, that purported to show that he had authority to dispose of the moped. Under questioning, however, Fornal admitted that he created the document a year later and backdated it to make it look legitimate.  Fornal insisted he did that because the original was lost --- not because he was trying to cover up any fraud or wrongdoing, a district attorney's report says.  “The state cannot offer any evidence to refute Fornal's claims," Naugle said. Roberts then signed the new documents although they were backdated.  Naugle said Roberts told agents either he signed without reading the paper, without considering its merit or without the basic understanding of how it should have been executed. "No matter how unflattering this defense may be to Roberts' reputation for competence as a police chief, the state cannot prove he has violated the law regarding the documents he signed," Naugle said.

January 25, 2007 Thursday

HEADLINE: Guardians of evidence

Detective Dave Benko believes in the adage "a place for everything and everything in its place."   Benko, an evidence custodian at the Shaler police department for 22 years, Runs a tight ship. He has an intricate logging and record-keeping system for the guns, narcotics and bags of evidence collected at crime scenes and seized from suspects over the years.

He knows his job is important, as a guardian of items that could make or break a court case, and he doesn't take the responsibility lightly.   "I have never lost or misplaced any evidence in all the years I've been doing this," Benko said. "It's very time-consuming to keep track of all of this, but you have to do it.

"I want to do things right, because if I get a piece of evidence, and a case goes to court, I will be able to say where that evidence has been every step of the way. There is no room for error."   It's a vow taken by evidence custodians in police departments everywhere, no matter their size.  The 30-by-20-foot evidence room at the Shaler police department is filled with shelves; each dedicated to items including firearms and seized U.S.currency. Benko typically holds evidence for 10 years, unless he's instructed by the Allegheny County District Attorney to destroy it. When that directive comes, guns and drugs usually are burned or crushed.

The shelves are marked according to the year the evidence was recovered.  Benko is going through items he stored in 1996 to see what can be purged.  He keeps photographs of crime scenes and evidence in two filing cabinets, and the contents date to the 1960s.  In Monroeville, the security procedures surrounding the police department's evidence room are so strict that even police Chief George Polnar and Assistant Chief Doug Cole need a secret code to get in. The code can be accessed only by the two evidence custodians or by ripping into an envelope sealed with evidence
tape that is kept in a locked safe.

"We've come a long way from the old days where officers would keep evidence in their lockers until a case went to court," Polnar said. "We take the entire process quite seriously."   Monroeville's evidence room is about 10 feet by 30 feet, and houses firearms and items recovered from burglaries and other crime scenes. A 1,000-pound safe holds money and narcotics, and a refrigerator houses samples of blood, semen and other body fluids collected at homicide and sex assault scenes, Polnar said.

Detective Rick Byers, the other evidence custodian for the Shaler police department, said marijuana is one of the more difficult pieces of evidence to preserve for years. As it ages, it deteriorates and can turn into a carcinogen, he said. When that happens, Benko and Byers make sure the marijuana is weighed, photographed and properly documented before it is destroyed.

"I try to hold onto even the marijuana as long as I can, because if there's any chance for a court appeal down the road and the court wants to see the physical evidence, it's best to have it," Benko said.  Polnar said the evidence custodians and Cole conduct a yearly audit of Monroeville's evidence room and purge items the department no longer needs.

Both Cole and Benko said evidence from serious felonies, including homicides and sexual assaults, is kept for up to 75 years. It might be needed if a case is overturned on appeal or an arrest is made in a long-unsolved case.   The evidence rooms in Shaler and Monroeville are monitored by wall-mounted security cameras that track the movements and activities of anyone entering.

Polnar said the effort to maintain and safeguard evidence is one of the most Important endeavors of any police department -- a point that was underscored by a January 1996 flood that destroyed and contaminated thousands of pieces of evidence from 20 years of rapes, homicides and drug seizures that was housed in the Allegheny County Police storage room on Wood Street, Downtown.   Criminal cases were imperiled by the lost evidence, and some unsolved cases might never be closed.

The county police evidence room now is located in the agency's headquarters in North Point Breeze.   "It can be tedious to track and safeguard all of these things, but if you don't have the evidence, you don't have a criminal case," Polnar said. "It's that simple."

January 31, 2007 Wednesday

HEADLINE: 3 plead guilty in Henry sheriff's case

Jan. 31--ROANOKE -- Three more people pleaded guilty today to their roles in a conspiracy in which members of the Henry County Sheriff's Department resold drugs they had seized.

Nine of the 20 indicted by a federal grand jury in October have now pleaded guilty in U.S. District Court in Roanoke. A 10th, a former captain in the sheriff's department, is scheduled to plead guilty later today.

Meanwhile, former sheriff H. Franklin Cassell, who retired after being indicted, is asking a federal judge to move his trial out of Roanoke. He faces five charges, including money laundering and obstructing justice. He has pleaded not guilty to all the charges against him. His trial has been scheduled for June 5.

Federal prosecutors allege that members of Cassell's department resold drugs they had seized from dealers, trafficked in steroids and prescription pills and pilfered firearms from the evidence room. When federal investigators learned of the illegal activity, the officers lied to agents to cover up their scheme, according to the federal indictment.

Of the 20 people indicted, 12 were current or former members of the sheriff's department.

Those pleading guilty today were: former vice officer Travis Wilkins, 33, of Collinsville, who admitted possessing a firearm with an obliterated serial number; Ronald Trantham, 46, of Fieldale, who pleaded guilty to lying to a federal agent and conspiring to commit racketeering after admitting he bought cocaine from one of the crooked officers; and Kandy Deshazo, 33, of Ridgeway, a former post office worker who helped one of the conspirators obtain a post office box under a false name.

They are to be sentenced at a later date. Wilkins faces up to five years in prison, Trantham 25, and Deshazo five.

A hearing on Cassell's motion for a change of venue is scheduled for later today.