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BENTON COUNTY Sloppy shelving spurs defender to review cases

Arkansas Democrat-Gazette (Little Rock)

Bentonville AR

The Benton County public defender plans to review two years' worth of cases possibly affected by the actions of a former Bentonville police officer who was fired in April for mismanaging evidence.

"This is on the lines of newly discovered evidence - evidence that should have been presented at trial," public defender Jay Saxton said.

Saxton said he and his deputies will start with open felony cases and work backward. They'll have to juggle the review with other ongoing cases.

"Current, active ones are the most important right now," Saxton said. "If [defendants have] gone to the Department of Correction or are out, yes it's very important, but it's not an emergency." Saxton decided to conduct the review after Bentonville Police Chief James Allen asked the Commission on Law Enforcement Standards and Training to decertify the former officer, Michelle Margaret Smith, at its July 10 meeting.

Allen fired Smith from her job as property control officer and evidence technician after it was discovered she had failed to log 1,300 pieces of evidence in more than 300 cases. Prosecutors contacted Smith's supervisor, Lt. Jon Simpson, in February after noticing evidence hadn't been sent to the state Crime Laboratory in Little Rock.

Smith filed an appeal to keep her law enforcement certification and will get a chance to defend herself, said Charles Ellis, a training supervisor with the Arkansas Law Enforcement Training Academy. The soonest Smith's appeal could be heard is at the commission's next meeting in October.

The Arkansas Democrat-Gazette could not locate contact information for Smith.

From January 2005 until March, Smith ran the evidence and property room. Most instances in which she didn't log evidence occurred between October 2008 and last February, according to the report Allen filed with the commission.

Simpson and other officers spent more than 300 hours sorting through items that hadn't been properly moved through the department's evidence management system. Smith placed sealed evidence bags turned in by officers in various places in the property room rather than logging them in proper bins, Simpson said.

On an average day, officers fill several lockers with bags of evidence, but a single case may produce hundreds of pieces of evidence at once, he said.

Smith fell behind in sorting evidence because of a computer software problem in October, Simpson said. She reported the initial problem but didn't tell anyone that it persisted.

Prosecutors became concerned when they weren't seeing evidence checked in with the state crime lab, Simpson said. The prosecutor's office monitors a Web site that shows the status of items at the lab.

Bentonville police now have the ability to check the same Web site as an added level of oversight, Simpson said. The department spot checks the evidence room, but it would have taken monthly audits to discover the problem, he said.

Prosecuting Attorney Van Stone said he's confident that Smith's actions didn't affect any felony cases and that he isn't afraid of any challenges by defense attorneys.

Rogers-based attorney Doug Norwood thinks it's only a matter of time before a problem with evidence that Smith handled leads to a successful appeal.

"This is not a little problem," he said.

Violation of department policy, such as not putting an item on the right shelf, isn't enough to overturn a verdict, Norwood said. Smith's actions as a whole could be used for a successful appeal, or acquittal, though Norwood doesn't expect many overturned convictions.

The U.S. Supreme Court ruled in the 1963 case Brady v. Maryland that prosecutors are required to share with defense attorneys information that may help the defendant, Norwood said. Specifically, they must share evidence that indicates innocence or impeaches the credibility of a witness, he said.

A defense attorney also could argue that the problem was known but not shared with defense attorneys, Norwood said.

Smith's actions near the end of her time with the department raise questions about her entire tenure, Norwood said. Any evidence she touched could be challenged, he said.

"If [Smith]'s not telling the truth, that goes to the absolute heart of exculpatory evidence," Norwood said, referring to evidence that can help prove the defendant innocent.

Saxton said some clients may decide to go to trial because of the evidence issues. In some cases, police will have enough other evidence, including witnesses and confessions, that a question about one piece of evidence wouldn't affect the verdict.

It ultimately would be up to a jury whether Smith's handling of evidence has bearing on someone's guilt or innocence, Saxton said. A compounding factor is that Allen said he was concerned about Smith's mental state, Saxton said.

Allen had said his decision to seek decertification was based on a concern for Smith's psychological well-being.

Saxton said Stone should have taken steps to notify defense attorneys as soon as evidence issues came to light. He said he only learned of the situation after being contacted by the news media.

"Prosecutors don't have to say, `Hey we're going to roll over and die,' but they do have to put the defense on notice. That's playing fair," Saxton said.

Stone said he would have notified Saxton if Smith's actions contaminated any evidence.

"We have a duty under Brady v. Maryland. We abide by that," Stone said. "I don't have a duty to tell them when Bentonville has a personnel issue." Had evidence crucial to a case been compromised, Stone would have dismissed charges, he said.

Stone doesn't expect Saxton's review to find anything substantive.

"I'm going to be surprised if something does [get overturned] because of what I know about what happened," Stone said. "It's a matter of storage, not a matter of tampering or commingling."

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