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Weak evidence laws abetted Mason's thefts

Idaho Falls Post Register (Idaho), Main Edition

Idaho Falls, ID

In most states, only the police are allowed to dispose of guns and other evidence in property rooms.

Not in Idaho.

When guns are taken from evidence lockers and destroyed, there usually has to be a witness to swear he saw the weapons melted or cut up.

Not a requirement in Idaho.

Some police agencies seek public trust by writing up a report every year that tells what evidence was left over in their lockers and what they did with it.

Not required in Idaho.

So when City Prosecutor Kimball Mason flashed a legal-looking order and walked away with guns from the Idaho Falls Police Department's evidence room, he didn't break any laws.

It wasn't until he gave them to friends or stashed them in his home and private office that he committed any crimes.

Reviewing the law in Idaho's border states and in states cited as models by evidence experts, it's clear that Idaho law is unusually vague when it comes to disposing of forfeited guns.

In Washington, for example, only police can destroy guns from evidence.

Idaho Code merely says a "public agency" must adopt procedures and maintain records but does not say who should melt, cut up or crush forfeited guns.

As a result, each city and county sets up its own system and there's no state-mandated uniform public reporting of what police do with the evidence they seize from the communities they serve.

Idaho's vague law enabled Mason when he started stealing from the evidence locker. He was caught in December and is now serving at least a six-month sentence.

The Mason case highlighted the flaws in Idaho's law.

The Mason scam

Mason, who prosecuted misdemeanors in Idaho Falls for 12 years, did not have an agreement with the city or the police department to sell or forfeit guns on their behalf. Nor was it stipulated in the contract he drafted for the city when he was hired in 1993.

Yet, since at least 2001, he presented roughly 30 orders - some bogus, some legit by the court's standards - to the police department's evidence custodians requiring them to fork over guns for him to dispose of.

Investigators believe he obtained 51 guns from 2001 through 2005.

Some of them he traded, sold or gave to local attorneys. Mason, who turned 52 Saturday, claims he trashed the remainder of them at the county dump.

But some turned up at Mason's house during a police raid June 2 - three days after he was sentenced for grand theft and falsifying a public document. That incident launched a new investigation, which Steve Bywater, the attorney general's criminal division chief, said is ongoing.

Even if it was legal for a prosecutor to have been destroying guns unsupervised, was it normal?

An evidence expert says no.

"I've never seen a prosecutor do that," said Joseph Latta, executive director of the International Association for Property and Evidence and a former police lieutenant. "That's really unusual."

But Latta, who has instructed 15,000-plus students in evidence and property management, also understands why an evidence custodian wouldn't question or refuse a prosecutor armed with a court order.

If there were questions, he said, a superior officer overseeing the evidence department should have become involved.

Idaho Falls Police Chief J. Kent Livsey maintains his evidence custodians did what they were supposed to. They were presented with signed orders from judges and they turned the guns over to Mason.

Officers, he said, thought Mason had followed the law.

"I don't know how a police department should be put in the position that we're ... going to ask a judge 'Did you really mean that?'" he said. "If a judge orders it, it's done."

Comparing us to others

While Latta said it is unusual for a prosecutor to get guns and convince people it was his job to destroy them, it technically is allowed under Idaho law.

Mason's position could be viewed as "a public agency" since he was a city prosecutor whose contract was paid by taxpayer money.

The Idaho Falls evidence room rules track state law. In the department's firearm disposition section of its evidence manual, it simply says that officers need to follow the section permitting "a public agency" to oversee forfeiture and destruction.

Most neighboring states devote an entire detailed chapter to rules for getting rid of confiscated and forfeited evidence.

Idaho gives it one line in the abandoned property chapter. There is, however, a detailed plan for disposal of property, including guns, seized in drug cases.

Wyoming's Division of Criminal Investigation destroys its guns confiscated and forfeited by local law-enforcement agencies, said David Delicath, a deputy attorney general there.

The state keeps some guns for research and comparison, he said, but none of them are used by officers or auctioned off to the public.

In Montana, evidence, including guns, may be destroyed by a law-enforcement agency or put to use by police, but not without a prosecutor's petition to the court.

In those cases, Montana makes the prosecutor "describe how destruction is to be accomplished or how the contraband has training or law enforcement value and its contemplated use by a law enforcement agency."

Washington, on the other hand, requires law-enforcement agencies to destroy illegal firearms.

It allows police to keep no more than 10 percent of legally forfeited firearms for agency use and requires them to trade or auction off the rest.

Shannon Inglis, a Washington deputy attorney general, said the Washington State Patrol destroys guns it seizes, but other Washington departments have their own policies.

While nonprofit groups such as the Brady Campaign to Prevent Gun Violence have reams of data regarding individual states' gun ownership laws, little is known about which states keep the closest tabs on forfeited firearms.

A spokeswoman for the federal Bureau of Alcohol, Tobacco, Firearms and Explosives said coming up with such a rating would be subjective.

Searching the Internet, it appears Minnesota's are among the more stringent requirements.

The gopher state requires every law-enforcement agency to report to the Legislature each year the number of persons arrested, charged, convicted and sentenced for violations of each state law affecting the use or possession of firearms. The report must include complete statistics, including the make, model and serial number of each firearm involved. Minnesota also requires a report to the State Auditor's Office in which law-enforcement agencies must state the reason behind a gun's forfeiture and its final disposition. Idaho does not require any such reports.

As far as changing Idaho's law goes, the head of the Attorney General's criminal division said some sections of the state's forfeiture law stand out as examples of "bad legislation."

It has been reported elsewhere in the media that the Idaho Prosecuting Attorneys Association has discussed proposals to rewrite the law to prevent another Kimball Mason-style fiasco.

Efforts to confirm that with association officers were unsuccessful.

Evidence procedures

Even if Mason were the right person to be disposing of evidence, his method of destroying guns was at best unconventional, if not dangerous.

According to the International Association for Property and Evidence, firearms should be destroyed by saw-cutting, torching, smelting or crushing.

Dumping firearms in a landfill is not recommended. And the association recommends that independent witnesses verify the serial numbers and destruction of weapons.

Professional standards such as that would have made it much harder for Mason to swipe guns he swore he was destroying.

Idaho Falls appears to be ready to review how it handles evidence.

Livsey said the department will spend $7,000 later this month to bring in an evidence auditor from California - one of Latta's protégés - to take a look at procedures in Idaho Falls.

Livsey predicts the auditor will find few problems, especially in regards to the guns checked out by Mason, since Idaho's law leaves the door open for prosecutors to hold on to guns, provided it's for a public purpose.

But Bywater, the deputy attorney general, views this narrowly.

"I can't think of too many reasons why a prosecutor would have a public purpose to have a gun," he said.
Cops and Courts reporter Phil Davidson can be reached at 542-6750.

The recommended way versus Idaho's way

International Association for Property and Evidence recommendations:

* Law-enforcement evidence policies should define when audits are to be conducted, by whom and the scope of the audit.

* Agencies should conduct ongoing audits, including unannounced inspections at the discretion of the agency's chief executive officer.

* Destruction of firearms should be accomplished by saw-cutting, torching, smelting or crushing. An independent witness should verify the serial numbers and destruction of these weapons.

Idaho Falls Police Department's evidence policy:

* No mention of audits

* Unknown whether internal audits are conducted

* States that firearms will be disposed of in accordance with Idaho Code 55-403A, which doesn't specify who should destroy the guns or under what supervision


* International Association for Property and Evidence

* Idaho Falls Police Department evidence manual

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