BYLINE: Alan Gustafson
Polk County, OR
A man convicted of a Polk County triple murder won his freedom following a futile four-month search to find missing evidence that had been used during his prosecution in 2000, a report released Monday shows.
The evidence against Philip Scott Cannon likely was lost or destroyed, according to the Dec. 18 report written by Dennis Carson, a special agent with the state Department of Justice.
Without the evidence, prosecutors conceded they couldn't retry Cannon. He was freed from the Polk County jail on the same day Carson issued his report.
Cannon, 43, steadfastly maintained during almost 10 years in prison that he did not murder Jason Kinser, Suzan Osborne and Celesta Garves. Each was shot once in the head at a mobile home in a rural area west of Salem in November 1998.
Earlier this year, the state agreed to Cannon's request for a new trial, after he claimed that key forensic evidence used at his trial was flawed. The technique used to analyze bullets at the murder scene has been discredited by the National Academy of Sciences, and the FBI stopped using it in 2005.
Plans to retry Cannon recently collapsed after Carson reported that he was "unable to locate any of the evidence that was used as prosecution trial exhibits."
Trial exhibits often include photos, affidavits, reports outlining forensic evidence and other materials.
Carson's five-page report describes his attempts to track down the exhibits, recounting his interviews with various Polk County and state DOJ officials, all to no avail.
Carson reported that he began looking for the evidence Sept. 11, at the behest of Darin Tweedt, a state assistant attorney general working with the Polk County District Attorney's Office on the case.
In his report, Carson said he interviewed former Polk County District Attorney John Fisher, who successfully prosecuted Cannon in 2000.
Cannon was accused of killing Kinser and his girlfriend, Osborne, along with Graves, all in their 20s, after visiting the mobile home to check on plumbing problems.
No murder weapon was found, and there were no witnesses to the killings.
Fisher never produced a motive but he theorized the slayings resulted from a drug deal gone bad.
The former DA recently told Carson that he probably signed an order in June 2005 to have the trial exhibits purged, but he had no idea where the materials ended up.
Polk County Circuit Court Clerk Cindy Beachell told Carson the exhibits were preserved, despite Fisher's purge order. She told the investigator that she personally delivered the exhibits to the district attorney's office around July 2005.
"Beachell told me although the paperwork Fisher signed states the exhibits are to be destroyed, that does not reflect what they would do with the exhibits," the report states. "She explained the exhibit purge form is automatically generated to ensure the exhibits are returned to the Polk County District Attorney's Office."
Beachell said she turned over the exhibits to Renee Hammell, then office manager in the district attorney's office.
Hammell, who left the DA's office in January 2009, initially told Carson that she had kept a box of Cannon case evidence stored in her office and that it was picked up by a person from the state Department of Justice. However, Hammell later changed her story, telling Carson "she did not believe it was the Cannon case she had spoken to me about. She would have looked in the box if it was a homicide case."
Hammell also told Carson that she believed that a Polk County detective, Burney Krauger, kept a box containing evidence from the Cannon case in a hallway of the DA's office, "but never brought it into the office."
Carson reported that he met with Krauger and evidence technician Ailsa Gray at the Polk County Sheriff's Office.
"We went through the evidence for this case, but did not locate any evidence that was used as exhibits in the trial," he wrote.
Additional futile searches for the missing evidence were conducted at the county's evidence storage facility, as well as possible storage rooms around the DA's office, the report says.
Julie Lichtenberger, current office manager in the DA's office, told Carson the county used interns to purge evidence during the rearranging of the evidence facility but that "she did not have any documentation reflecting the disposition of the prosecution trial exhibits in this case."
In conclusion, Carson stated that he found "no documentation or recollection" to show that the exhibits were turned over to anyone at the Department of Justice after the trial.
"The Polk County District Attorney's Office and evidence storage facility have undergone construction and renovation during this period, and the prosecution trial exhibits could have been lost in the move," he wrote. "Finally, with the unavailable documentation regarding purging of some evidence from the Polk County Storage Facility it is likely the prosecution trial exhibits have been destroyed."
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