The Denver Post, denverpost.com
BYLINE: Felisa Cardona The Denver Post
Link to Article
Brian Hicks, from a February file photo.
(John Prieto, The Denver Post)
Four kilograms of cocaine were mistakenly destroyed by a Denver police property sergeant before the case against a notorious gang kingpin could go to trial.
Now Brian Kenneth Hicks is asking a federal judge to toss out his crack-cocaine-trafficking case or issue sanctions against prosecutors for mishandling evidence.
The Denver Police Department launched an internal investigation into the destruction of the cocaine, said Lt. Matt Murray.
Denver's CBS4 first reported Hicks was moving to have his case dismissed because of the destroyed cocaine.
In November 2006, Hicks was arrested after, police say, he tossed the kilos out a window of a black Lexus sport utility vehicle during a chase.
Denver police kept the drugs at the property bureau, even though the case transferred to federal court when evidence of a wider conspiracy emerged.
The kilos were destroyed on May 11 while Sgt. John Zak? was purging old property.
Documents show Zak reviewed paperwork that said the state court case had been closed and did not make further inquiry as to whether a federal court case existed. Zak also did not check an electronic database that showed Denver district attorney investigator Robert Fuller? had placed a hold on the evidence.
Fuller investigated the incident and wrote in his report: "Sgt. Zak told this writer that the personnel, including him, do not take the time to contact assigned detectives because the detectives often fail to respond to their inquiries regarding the destruction of evidence. Sgt. Zak told this writer that the system of contacting the assigned detectives is a waste of time."
Murray declined to comment specifically on Zak's statements to Fuller or the circumstances surrounding the destruction of the kilos. He said that the department stores more than half a million items in its property bureau and audits have shown mistakes are extremely rare.
Prosecutors have photographs of the cocaine and had it analyzed by a lab and could use that evidence at trial.
Hicks' attorney, Martha Eskesen, wrote that she wasn't notified by prosecutors until Aug. 18, during a passing conversation at the federal courthouse. A formal notification wasn't made until Sept. 9.
Jeff Dorschner, spokesman for the Colorado U.S. Attorney, declined to comment. Prosecutors will file a response to the motion Oct. 24.
Judge Wiley Daniel set a hearing on Dec. 18.
Hicks, 32, was convicted of murder earlier this year for ordering his gang associates to kill Kalonniann Clark, a state witness who was going to testify against him in a 2005 attempted-murder case.
He is serving life plus 120 years in state prison.
The gang leader also is known as the owner of the Chevrolet Tahoe? used in the 2007 fatal drive-by shooting of Denver Bronco Darrent Williams. Hicks was never implicated in Williams' death because he was in jail on the drug case at the time.
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