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Oregon Justice Department finds missing evidence thought lost from notorious triple murder in Polk County

The Oregonian,
BYLINE: Jeff Manning, The Oregonian
Link to Article

Polk County, OR

2011-10-17_Oregon Justice Department finds missing evidence_01
Philip Scott Cannon, left, walks arm in arm with his son, Mathias, 20, after being released from the Polk County Jail, Dallas, Ore., on Friday, Dec. 18, 2009. His conviction on a triple homicide was overturned because of doubts about the validity of key forensic evidence. The Associated Press

Attorney General John Kroger has asked the Oregon State Police to investigate mishandling of evidence at the Justice Department after four boxes of believed lost evidence from a notorious 1998 triple murder were found.

Philip Scott Cannon was convicted in 1999 and sentenced to life in prison for the murder of a man and two women in rural Polk County. He spent a decade in prison before winning his release in 2009 due to the lost and discredited evidence.

The Cannon evidence was found in the offices of the Justice Department's trial division, which has separate quarters from the Attorney General, said Tony Green a Justice Department spokesman. Rather than attempt an internal probe, Kroger decided to put it in the hands of the state police.

"We found some records that were believed to be destroyed," Green said. "There will be questions as to how the records got there."

Kroger said in a statement that he's also ordered a complete review of evidence procedures at the department's trial division. "Mishandling of evidence is completely unacceptable," Kroger said. "As Attorney General, I take full responsibility."

The sudden appearance of the Cannon files marks the second embarrassing evidence foul-up at the Justice Department in five months. Kroger put Sean Riddell, former head of the department's criminal justice division, on temporary leave last spring after it was determined he deleted e-mails that related to the department's probe into the Oregon Energy Department and its contract with Cylvia Hayes.

Riddell's destruction of e-mails from the case was inadvertent, the department said. He has since returned to the Justice Department in a less senior role.

In 1998, Cannon was a plumber sent to repair a water leak at rural Polk County mobile home occupied by Jason Kinser. A neighbor later found Kinser and two others, Suzan Renee Osborne and Celesta Graves, dead or dying of bullet wounds.

Cannon maintained his innocence, claiming the three were alive when he left. Kinser was a meth dealer, Cannon claimed in court filings, who had earned plenty of enemies among competing dealers.

But Cannon was convicted and his appeals denied.

Cannon continued to fight. In 2005, he filed a petition for post-conviction relief in which he argued that he didn't get adequate legal representation. Specifically, Cannon claimed his former attorney failed to challenge the ballistics evidence provided at trial by the prosecution.

Polk County prosecutors relied heavily on a kind of ballistics evidence known as "bullet lead analysis." The FBI and other law enforcement agencies stopped relying on the technique last decade after new research showed that it was unreliable. But even during Cannon's first trial, bullet lead analysis was known to be flawed, he argued.

Cannon also alleged that both Polk County prosecutors hid and destroyed evidence and that Justice Department attorneys covered up the fact that evidence had gone missing.

In a subsequent civil lawsuit filed in 2010, Cannon claimed that state lawyers stalled the case for years trying, among other things, to convince Cannon to give up his right to seek monetary damages in the event he was released. "For the next five and one-half years, (former assistant Attorney General Susan) Gerber knowingly delayed the judicial process...engaging in delay tactics, numerous postponements, and failing to disclose the loss and/ordestruction of evidence," Cannon claimed in his lawsuit, which was later dismissed.

In 2009, the Justice Department agreed to grant Cannon a new trial. The case was returned to Polk County for possible re-prosecution, but this time without the discredited ballistics data. But there was a problem. The missing boxes of evidence.

State and county prosecutors decided jointly to drop the charges against Cannon without prejudice, meaning they can refile charges. Green said the Justice Department will defer that decision to their local counterparts. Polk County District Attorney Stan Butterfield could not be reached for comment.

In December 2009, Cannon was released from the Polk County jail after 10 years behind bars.

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