The Daily Record (Baltimore, MD)
BYLINE: Caryn Tamber
Douglas Scott Arey is convinced that somewhere out there, there is the forensic evidence that will set him free.
In 2007, the Court of Appeals ordered prosecutors in Arey's case to perform a thorough search for evidence connected to the 1973 murder of Arey's former boss, Samuel Shapiro.
Two-and-a-half years later, Arey and prosecutors are at an impasse. The state says it has searched valiantly for the evidence but that it can't be found. Arey and his lawyer argue that the state's search falls far short of the Court of Appeals' standard.
"They have just completely, in my opinion, stonewalled this," said Dennis Laye, who was assigned by the public defender to represent Arey.
Unless Arey gets relief from the Baltimore City Circuit Court judge handling his case, his claim seems destined to head back to the Court of Appeals.
Arey's case and others that have recently come before the top court raise questions about the storage and disposal of physical evidence in long-ago criminal matters: How far does the state have to go to look for evidence that may have long ago been relegated to an incinerator? What if the evidence room is disorganized or even flood-damaged?
And what if the sought-after forensic evidence just doesn't exist anymore?
Blood on his shirt
Arey was arrested in 1973 and charged with shooting to death Samuel Shapiro, a businessman and political gadfly, at the Belvedere Hotel.
Police arrested Arey and interrogated him, confiscating his visibly bloody T-shirt. DNA-testing technology did not yet exist, but the blood type matched Shapiro's.
In 2002, under a new law expanding DNA testing rights for those convicted of murder and rape, Arey petitioned the court for testing of the T-shirt. He contends that when police interrogated him, he had a bad case of acne. He was nervous about being questioned and began picking at his pimples, wiping the blood on his shirt.
The bacteria in his acne would have skewed the results of the blood-typing test, making it look as though the blood was Shapiro's, Arey argues. He also questions whether the lab testing was ever done in the first place.
In response to Arey's petition, the state produced an affidavit from the manager of the Baltimore Police Department's Evidence Control Unit stating that he searched for the evidence but had not found it. In 2006, the Baltimore City Circuit Court denied Arey's petition to test the T-shirt on the grounds that it no longer existed.
But in 2007, the Court of Appeals stepped in and held that the state's efforts were not enough. Police and prosecutors needed to check not only the evidence room but anywhere else the clothes could reasonably have been found, such as the trial judge's chambers and the crime lab that was being used in 1973, the judges wrote.
The case went back to Judge Kaye A. Allison in Baltimore.
At first, the state reported problems searching for the evidence because, prosecutors said, it may have been stored in an area damaged by the floods of Tropical Storm Isabel in 2003. The state eventually secured grant money to help it clean and organize the area, but it maintains that it still cannot find the evidence.
State's attorney spokesman Joseph Sviatko said the office has now conducted "an exhaustive and extensive search for evidence based on the law and court order."
Arey and his lawyers dispute that.
For one thing, said Laye, one of the men who prosecuted Arey has submitted an affidavit saying that the genetic material from Arey's T-shirt would have made it to any evidence storage facility in the form of slides, not the shirt itself.
Laye said that means that the state could have been looking for the wrong thing all along.
Laye, of Burke & Laye LLC, also cites a logbook recording evidence checked in to the Baltimore police crime laboratory. A current crime lab employee found the logbook and saw a reference to a piece of evidence in Arey's case.
The entry contains the number 10 in parentheses and gives the initials of a lab technician, clues Laye says the state has not pursued in its quest to find out what happened to the evidence.
He made that argument in a hearing before Allison last August. While the judge has not yet ruled on the larger argument, after the August hearing she ordered the state to grant Arey's investigator access to the logbook.
In October, that investigator found two other entries pertaining to Arey's case. Laye is asking what these two entries could tell the state about the evidence, and whether the state has missed anything else.
Arey's case is symptomatic of a larger problem with the state's ability to locate long-ago physical evidence, especially in Baltimore, said Michele Nethercott of Maryland's Innocence Project. Sometimes, the state has told her that it just cannot say for sure whether it still has a piece of evidence.
"I naively had this idea that the organization, classification of physical evidence would be pretty straightforward, but it doesn't appear to be," she said. "On our end of it, we're really at the mercy of how diligent the law enforcement officials are in trying to search for this stuff. The more screwed up their own internal record-keeping situation is, it requires more effort on their part."
While Arey is sure the evidence that will exonerate him is out there somewhere, Laye is less certain.
"We don't know that it exists or it doesn't exist," Laye said.
But, he said, the state needs to make a good-faith effort to find out. He likened the state's search so far to his children telling him they have looked "everywhere" for their shoes but still can't find them. The shoes are often in their bedrooms, he said.
"It doesn't seem like it's malicious," Laye said. "It's just laziness."
"I don't think any sort of impartial person would say this was enough," he added.
Laye has suggested in his filings before Allison that, if the state is not motivated enough to do a thorough search for the evidence, perhaps a new-trial grant will provide the necessary incentive. He's not optimistic about the chances for that motion, he said.
Laye has no further hearings scheduled before Allison on the DNA issue and is awaiting her decision the motions he has already presented, he said. If Allison again rules that the evidence cannot be tested because it no longer exists, Laye said he will file an appeal.
Another case, that of George Blake, has been consolidated with Arey's for the purpose of the DNA-related motions. Blake was convicted of rape in 1982. In 2004, he petitioned the court for DNA testing, but, like Arey's, Blake's petition was thrown out on the grounds that the evidence no longer existed. In 2006, the Court of Appeals ordered the state to look harder.
Blake's lawyer alleges that the state still has not complied with the top court's mandate because it has not searched stored evidence that was not labeled with property numbers and has not supplied information on how evidence was handled and disposed of at the time Blake was convicted.
Blake's lawyer also argues that the state's search has been cursory, pointing out that its hunt for evidence in the Sex Offense Unit took only 20 minutes. Often, drawers and boxes were left unopened and files unsearched.
Efforts to reach Blake's lawyer, Kerry B. Verdi of Howrey LLP in Washington, D.C., were unsuccessful.
The Court of Appeals has recently weighed in again on how far the state must go to find evidence in long-ago cases. In the latest opinion, Horton v. State, released in December, the court held that a judge was wrong to dismiss Tyrone Horton's petition for DNA testing in his rape case on the grounds that the evidence no longer existed.
The circuit court judge based that ruling on an affidavit from the hospital that treated the victim, in which it said it would not have saved her rape kit for this long, and documents indicating that the evidence was ready to be destroyed.
But that was not sufficient to show the evidence was gone, the majority held.
A fixed list?
The dissenters in Horton said the state had done enough and worried about the majority's focus on a list of possible locations to look for evidence: police evidence rooms, the prosecutor's office, crime labs, hospitals, offices of defense counsel or investigators, courthouse property rooms, independent crime labs, and offices of clerks and court reporters.
John McCarthy, Montgomery County state's attorney and president of the Maryland State's Attorneys Association, said no prosecutor wants an innocent person to sit in prison, but the courts have focused too much on dictating a fixed list of places the state must look for evidence.
For example, courts have noted that convicts seeking DNA evidence have suggested that the state check in the chambers of the trial judge, McCarthy said. That suggestion is clearly a result of the case of Kirk Bloodsworth, a Maryland inmate exonerated of the rape and murder of a 9-year-old girl after DNA was located in the judge's chambers.
"I think that is almost a unique situation that occurred in that case, and obviously it has become celebrated because it became very important for exonerating Mr. Bloodsworth, but again, that's not a practice of many judges," McCarthy said. "I don't know that you should necessarily be guided by the extraordinary result you got in a case resulting from the extraordinary practice [of one judge]. That is not a place I would have ever thought to look for evidence. "
McCarthy said that if the state cannot find the evidence, the court must ask whether the defendant has satisfied his burden for a new trial. The court should investigate whether the evidence was destroyed to obstruct justice or as a matter of course in the days before DNA testing was available.
The defendant does not get the benefit of the doubt, he said.
"There are going to be cases where the evidence, not because of any subterfuge or deception, simply because of the passage of time, is not available," McCarthy said. "I don't think it means you overturn the conviction, I don't think it means you free the defendant, I don't think it means he gets a new trial."
There comes a point at which the defendant may have to give up on his claims that DNA evidence will exonerate him, Nethercott said.
"Most of the time, it's been destroyed or it hasn't been preserved properly," Nethercott said." Most of the time, that's the end of it. The defendant is just out of luck.
"That's one reason DNA isn't this magic bullet. "
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