Monday, October 26, 2015


I got a call the other day from a reporter who had some concerns about a retrial in a murder case where the evidence had been destroyed by the police. At first blush, it sounded terrible, but I knew there had to be more to the story than met the eye. If the case had already been tried, the police didn't have the evidence to destroy. It was all in the custody of the clerk, having been placed into evidence at the first trial. The first part of the interview consisted of me asking more questions of the reporter than the reporter asked of me. I found out that the defendant had been convicted several years ago of robbery and murder, and that the appellate court had reversed the murder conviction, but not the robbery conviction, because of a problem with the jury instructions. The clerk still had the evidence that had been entered at the first trial, and the police had only destroyed the evidence that had NOT been entered at the first trial.

The defense was now complaining that the destroyed evidence may have had something in it that would have proved the defendant innocent, and therefore he should be set free. I opined that if there was anything in the destroyed evidence that would have proved the defendant innocent, the defense attorney would have used it at the first trial, and it would be safe and secure in the clerk's custody and available for the second trial. Apparently the judge agreed with me, because the trial went forward despite the loss of the evidence. You can read about it here: "Retrial to Start Without Destroyed Evidence". (The reporter slightly muffed my quote. What I originally said didn't sound quite that dumb).

The police made an honest, if not-too-bright, mistake, and the defense couldn't prove that any harm was done. The situation is controlled by a line of cases which holds that if potentially useful evidence is inadvertently destroyed by officers acting in good faith, there is no problem. See, e.g., Arizona v. Youngblood, 488 U.S. 51 (1988). The key is whether the police were acting in good faith, and it takes more than mere negligence to negate good faith.