Destroyed evidence might not halt drug trial

Pittsburgh Post-Gazette, post-gazette.com
By Rich Lord, Pittsburgh Post-Gazette
Link to Article

Allegheny County, PA

The hard evidence against Tiona L. Jones went up in smoke, but the prosecution's case that she was a major heroin dealer may get off with a slight scalding.

Today U.S. District Judge Gustave Diamond heard evidence on a motion in the case, in which Assistant Public Defender Marketa Sims argued that the incineration of drugs and a change purse should weigh in the defendant's favor. Pittsburgh Police had the Allegheny County District Attorney's Office burned the items as part of an effort to clear a fume-plagued evidence room, witnesses testified.

"The question is whether or not you have been deprived of your due process rights" to use the evidence at trial, Judge Diamond told Ms. Sims. "You certainly haven't established a due process violation," which would require some indication of bad faith, rather than mere negligence.

Ms. Jones, 32, was initially charged in state court after her 2008 arrest on drug possession charges. A Pittsburgh police officer has testified that he saw heroin in her open change purse, which justified searches of her car and house that found more heroin.

The District Attorney's office turned the case over to the U.S. Attorney's Office, which charged Ms. Jones with possession with intent to distribute heroin and making false statements in the purchase of a firearm. As a result of the transfer to federal court, the state case was closed in September 2009.

Around that time, city police Sgt. Lynn DeVault was having respiratory problems related to the stench of the drug room she oversees, she testified. She and another officer compiled a list of large pieces of evidence from cases that appeared to be closed, and on June 2 she emailed Assistant District Attorney Angela Kelley to ask her whether her office objected to their destruction.

Ms. Kelley testified that she checked the online docket to verify that the cases were closed, but did not pull files, ask her co-workers, or contact the U.S. Attorney's Office to see if any of the cases had been steered to the federal court. On June 4, she approved of the evidence incineration, which happened on June 12.

"The D.A.'s office, you could make an argument that they didn't perform at the top of excellence," Judge Diamond said, but he saw no bad faith in their actions.

Though the incineration was supposed to involve only drugs and drug paraphernalia, a change purse taken from Ms. Jones was apparently also burned. Ms. Sims said that purse is part of the defense case.

She said she wants to show the jury that the purse had a zipper, which a reasonable person would close. Discount the officer's testimony that he saw heroin, and it could undermine the legality of the subsequent searches, she said.

She likened the U.S. Attorney's Office's decision to leave evidence with the Pittsburgh police to "leaving your purse on a park bench."

Judge Diamond said he will consider the argument, but added, "I am not overwhelmed by it."

Rich Lord: or 412-263-1542

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