July 16, 2018
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Lewiston police scolded for losing evidence again

By Christopher Williams, Sun Journal

AUBURN, Maine — Justice MaryGay Kennedy followed the hallway to the jury room. She told the 14 waiting jurors there would be no trial, then dismissed them and thanked them for their service.
In an office off the same hallway, Chris Finley sat waiting to testify in court against the man he said beat and robbed him.
He soon learned there would be no trial.
Earlier that morning, a Lewiston Police detective had told Assistant District Attorney Nicholas Worden that there was more evidence in the case that he hadn’t shared with prosecutors. Worden had told the judge and defense attorney.
Worden apologized to Finley.
At that moment, the victim of an alleged crime learned the hard lesson that justice doesn’t always prevail, at least not from where he sat. Sometimes, justice is a delicate balancing act whose scales can be tipped by a subtle detail many would deem insignificant. But not a judge.
Inside the courtroom, Frank Matott Jr., 29, of Edgewater, Fla., was seated at a table in the Androscoggin County Superior Courtroom next to his attorney. He had changed from his jail suit into street clothes. He had been charged with robbing and beating Finley. If convicted of robbery, he faced up to 10 years in prison. He had come to court ready for trial. But his attorney had just told him there wouldn’t be one.
Justice Kennedy entered the courtroom. Her eyes went to Matott. She told him the court would be dropping the felony robbery charge — with “a strong admonition to the Lewiston Police Department.”
The burden of proving guilt beyond a reasonable doubt, the threshold for a jury in a criminal case, starts with law enforcement. Lewiston police had failed to provide prosecutors with every piece of evidence against Matott so that they could, in turn, provide all of the evidence to his defense attorney, Kennedy said.
“This is not the first time this has happened in recent history — and memory — for the court,” she said.
Dismissal of the felony charge was the harshest ruling the judge could have imposed on the state for failing to turn all the evidence over to the defense. In this case, the missing evidence could have been exculpatory, meaning it might have favored the defendant by helping to cast doubt on the prosecution’s case against him.
A Lewiston police detective had said the missing evidence was a set of photographs of the crime scene, the victim’s apartment on Blake Street where Matott and his co-defendant, Lynne Montoya, beat and allegedly robbed Finley in April. The photos showed patterns of Finley’s blood. Blood spatter can tell a story, depending on its characteristics, trial attorneys say. In some cases, an expert witness for the defense can use those patterns to tell a story that differs from the sequence of events argued by the state.
Kennedy later said, in open court: “It is the only sanction the court can impose at this point because this is not the first time — it’s not only not the first time that the court has seen this, it’s not the first time this week and during this trial term.”
In fact, Lewiston police had lost evidence in two unrelated robbery cases scheduled for trial the same week in August. A robbery charge against Montoya would be dismissed, as well. She had already pleaded guilty to the robbery at the time of Matott’s scheduled trial, but later was allowed to withdraw her plea because of the missing photos.

Lost interrogation

Just days earlier, Jonathan Thibodeau, 28, of Lewiston was about to stand trial on a robbery charge when it was revealed that a videotape of his interrogation by a Lewiston police detective had been “lost,” according to court records.
Thibodeau had been indicted by a grand jury on the felony count, punishable by up to 30 years in prison, charged with attempting to rob the Big Apple store on Main Street in Lewiston. He allegedly had threatened a clerk with a knife.
According to a motion filed by Thibodeau’s defense lawyer, Jason Dionne, his client was interrogated by Lewiston police Detective Trevor Campbell on March 12, 2010. The interview was recorded on video, Dionne wrote in his motion. Campbell had reported that, during the interrogation, Thibodeau told him he had acted alone the night before and said no one else should be held responsible for his actions.
“Defendant has requested the videotape of the interrogation and been informed that the video was ‘lost’ by the officers,” Dionne wrote in his motion to disallow at trial any statement allegedly made by his client during the interview.
In a court order, signed on Aug. 15, Kennedy checked a box on a document that said, “The state’s inability to produce the videotape, which could be used to impeach an officer’s statement, violates the defendant’s right to due process under the 14th Amendment. … Accordingly, the state is hereby prohibited from introducing evidence of any admission purportedly by the defendant in the course of the interrogation.”
In a later interview with the Sun Journal, Dionne said the exchange was held shortly before Thibodeau’s trial got under way.
Both sides had met with the judge to discuss the missing recording of the interrogation, followed by a testimonial hearing at which prosecutors sought to explain their position and the Lewiston police officers involved wanted to be heard on the record.
Without the videotape for proof, it was unclear whether Thibodeau made the possibly incriminating statement before or after he was read his rights and had asked to meet with a lawyer.
After the brief hearing, Justice Kennedy ruled in favor of the defendant and ordered that there should be no reference to the interrogation during the trial.
Dionne, who had not sought a more serious sanction, was satisfied with the judge’s decision.
But the missing video wasn’t the only evidence problem to affect Thibodeau’s trial, Dionne said. The Lewiston Police Department’s evidence log that showed the chain of custody by officers who handled certain pieces of evidence in the case appeared to be incomplete.
“There seemed to be some conflicting testimony during trial as to whether or not other officers may have handled (the evidence) without signing the sheet,” Dionne said. “I think the inconsistency was that some officers indicated that they had not signed the sheet, but they were in the presence of an officer who did sign the sheet.”
The evidence in question was a backpack and clothing from which DNA was extracted, Dionne said.
Even without Thibodeau’s alleged statement of admission from the interrogation, a jury convicted him at the end of the two-day trial on a count of robbery.

‘Something has to give’

After Frank Matott pleaded guilty to a misdemeanor assault charge stemming from the alleged robbery, Justice Kennedy turned to Matott’s defense lawyer, George Hess, and apologized to him.
Hess had come to court prepared for trial and had filed all of his motions in a timely manner, having met all of his deadlines, she said. The state hadn’t done the same, she said.
“Your efforts have been undercut by the sloppiness of the Lewiston Police Department,” she said.
Shortly before Matott was given his sentence of 60 days in jail, or “time served,” plus a $300 fine for the misdemeanor, Kennedy urged the Lewiston Police Department to make some changes.
“Something has to give over there and if they have to figure out a new system … in terms of how they log in evidence, particularly photographs, tapes, etcetera; and they need to understand that that information is required to be produced to the defendant. It’s in the rule. It’s in the (U.S.) Constitution. It is imperative that they learn to do their jobs properly,” she said.
Hess said it wasn’t the first time he’d seen a judge impose such a harsh sanction. About five years ago, in Cumberland County Superior Court, a different judge had taken roughly the same action under similar circumstances.
In that case, Hess said his client had been charged with drunken driving and being a habitual offender. The morning of his trial, the prosecutor announced that the police in a different Maine city had turned over a taped interrogation of the defendant, who had made statements that were possibly exculpatory. That tape had not been shared with the defendant.
“Justice (Robert) Crowley was not very happy with that at all,” said Hess, who has been practicing law for 38 years, 18 as a defense lawyer. Instead of continuing with the trial, or delaying it, the judge allowed Hess’ client to go free with time served, roughly one-sixth of the sentence he had faced on the charges.
“He walked out that day,” Hess said. Had the judge delayed the case, Hess said his client, who had sat in jail for 14 months, could have claimed he was denied a speedy trial, a violation of his rights guaranteed under the U.S. Constitution.
In both cases, Hess said he believed the judges’ sanctions were “reasonable” and not abuse of the judges’ discretion. Not providing material evidence to the defense until the last minute is a serious violation and an impediment to getting a fair trial, he said.

Reforming protocols

Justice Kennedy’s rebuke triggered a meeting between police and prosecutors.
Androscoggin County District Attorney Norm Croteau and Assistant District Attorney Nicholas Worden (who prosecuted the Matott case) sat down with Lewiston police Chief Michael Bussiere and Lt. Michael McGonagle, who supervises criminal investigations unit for the department.
Croteau said the two recent cases sparked a discussion about electronic evidence, how it’s stored at the police station and how copies of that evidence are distributed to everyone who is entitled to get one. Talks also touched on the timeliness of delivery of the evidence and how it shouldn’t wait until a jury has been impaneled and is lined up outside the courtroom.
Croteau and Bussiere said they were working on new protocols aimed at the following:

  • Making sure multiple copies of original evidence are made available at the outset of a case;
  • Streamlining the process of police delivering requested evidence to the Androscoggin County District Attorney’s Office; and
  • Having meetings between police and prosecutors — as well as the defense and the judge — earlier and more often.

Croteau said his office is more concerned with improving the system of preserving and distributing evidence than pinning the blame on specific officers within the department in certain cases.
Croteau and Bussiere agreed it’s rare that a critical piece of evidence goes missing, rarer still that it would affect two cases in a single week. The department processes thousands of pieces of evidence in any given year.
But if it happens just once and a case is compromised or thrown out because or it, the result is that hours of trial preparation by police, prosecutors, the defense and the court are undercut, or wasted. And it means that an alleged victim or victims likely won’t feel justice was served, Croteau said.
“I believe that we’re on the road to making some changes, perhaps in terms of how all of that evidence is logged in, how it’s tracked at the police department,” he said. “We are also making changes at the (Androscoggin County) District Attorney’s Office in conjunction with the court in trying to revamp the court’s schedule for all of these cases so that we have an opportunity at a dispositional conference as well as grand jury reviews prior to indictment.”
That means shortly after a case is handed over by police to prosecutors, the two departments would meet to review all elements of a case, including all evidence, to make sure there are no missing videotapes, photographs, pieces of clothing or test results. If there are, the elusive evidence would be noted and tracked down.
Once the grand jury were to rise and hand up an indictment and the defendant has pleaded not guilty at arraignment, another meeting would be convened, this time with defense and the presiding judge, Croteau said. At that meeting, the state and defense would review all of the evidence expected to be handed over by prosecutors during discovery. That way, any evidence the defense is expecting to get from the district attorney’s office would be gathered and passed along.

A ‘stressed’ system

While Bussiere wouldn’t discuss the details of the specific cases and the officers responsible for the missing evidence, he said he believes there is room for improvement. But Lewiston’s police chief also said the judge presiding over a case involving missing evidence could be more flexible in imposing sanctions and allow the state more time to try to locate it or, at least, continue to trial without it (as in the Thibodeau case).
“In the rare instance that something gets misplaced, put aside or extra copies don’t get made, it would be beneficial, I think, to give the state and the police department more time to gather that up and so a person can get a fair trial,” Bussiere said.
“Continuances happen all the time,” he said. “And continuances by the defense are granted all the time. Rarely does the state, the prosecutor’s office or the Lewiston Police Department ask for more time before trial. We’re ready to go. … But in those occasional instances, it would be nice to have the time to do what we need to do to provide the necessary information, rather than to punish a victim in a case by either getting a plea bargain or dismissing the case outright.”
The judicial system is stressed, Bussiere said, and so is his police department.
His detectives don’t work one case at a time, he said. The detectives assigned to investigate burglaries might have 15 or 20 open cases. They often work on three or four cases a day, juggling the files and evidence, he said. Same for the violent crime detectives, who might be working on two robberies, a rape and an aggravated assault at the same time.
“When you have that kind of stress on the system … and when you have that kind of rapidly evolving cases coming in, that’s when you sometimes, you know, things happen, things get dropped or things get missed or extra copies don’t get made,” the chief said.
If a detective has to put aside a case to take a more pressing one, mistakes can happen.
“So you take out that folder and you lock it back in your file folder and you hope you’ve got everything back in it and you go on to the next one,” Bussiere said.
Sometimes detectives are called in the middle of the night to investigate a case after getting only a couple of hours of sleep, he said.
“You start doing interviews,” he said. “You’re not as sharp at 2- or 3 o’clock in the morning. You got to do it because you’ve got to work on the case right now while it’s happening … That’s the reality of police work. And that’s the reality of what we deal with every day and what we live with every day.”
It’s OK for a judge to be frustrated when such things occur, he said, “but until you find a way to remove the human element from any type of situation, there’s going to be … occasionally, you’re going to have that kind of issue.”

(c)2011 the Sun Journal (Lewiston, Maine)
Distributed by MCT Information Services

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