Chain of Custody of a Drug Exhibit, McCracken County, Kentucky [document dump]

May 25, 2014

by Crane-Station and Frederick Leatherman

We continue our analysis of a published and affirmed Sober DUI and drug case, that is now precedent in the state of Kentucky. For the introduction, please go here.

What is a Chain of Custody?

The chain of custody is a legal term that refers to the foundational requirement that an exhibit offered into evidence at a hearing or trial is in the same condition as it was when it was seized. By foundational requirement, I mean that a party offering an exhibit into evidence (e.g., a gun) must establish that the gun being offered into evidence is the gun that was seized and it is in the same condition as it was when it was seized. The purpose of the rule is to prevent evidence tampering.

Judges and lawyers use the word “chain” because an exhibit typically passes through several hands between seizure and the courtroom. Each person who handles the exhibit is a link in the chain of custody.

In the typical drug case, for example, an officer will seize a suspected controlled substance, weigh it and seal it in a bag with her initials across the seal. She will then fill out a drug-exhibit form listing the weight and describing the suspected controlled substance. She will take the exhibit to the police department’s evidence unit where it will be logged in briefly describing it and listing the date and time she presented it as well as her name and badge number.

At some point later on, she will retrieve the exhibit from the property room, sign the log book acknowledging she received it and send it to the crime lab for testing. Cops often Fedex exhibits to the crime lab. The crime lab also maintains a log book that will record when the exhibit was received and from whom it was received. The exhibit will be placed in the safe where it will remain until it is assigned to a lab technician to test.

The tech will sign it out and take it to the bench where he will open the bag, examine and weigh the substance. He will take a small amount to test, weigh what is left of the exhibit, record the weight, replace it in the bag and reseal the bag signing and dating the bag across the seal. Then he will conduct the testing procedure, record the results, and return the exhibit to the safe. The return will be duly recorded in the log book.

At some point, the exhibit will be logged out at the crime lab and returned to the police agency where it will be logged in to the evidence unit. It will remain there until trial when it will be released to the prosecuting attorney who will take it to court and offer it into evidence.

All competent defense counsel request copies of all of the documents that make up the chain of custody to make certain that every transfer is documented, the descriptions of the exhibit match, and the weights agree. They also request the lab tech’s bench notes that detail what the lab tech did with the exhibit.

If something is missing or out of order, defense counsel will object to the exhibit being admitted into evidence on the ground that the prosecution’s foundation is insufficient.

Any defense attorney who does not do this is incompetent.

The Documents

Now to the documents. Crane-Station here, and in late 2012, after the United States Supreme Court denied cert in my case, I requested the chain of custody for the drug exhibit that a McCracken County Sheriff deputy seized on the night of my arrest, on June 28, 2006. After a two-hour search of my car and person at the roadside, that the Court of Appeals characterized as “thorough” revealed no illegal drugs, the officer arrested me and we went to the hospital for a blood draw. During the ride, my six-dollar wristwatch fell off, and slid through the crack at the back of the cruiser back seat, to the floor. I was handcuffed, and could not reach it. On arrival at the hospital, I asked the officer to move the seat and get the watch. I scooted forward on the seat, and he moved it. He then flashed something in front of my face- but then his hand was gone out of view. He nearly shouted, “Sure looks like heroin to me!!” I told him twice, politely, to field test and lab test his ‘find.’ I also pointed out that, I would not ask him to retrieve my watch, If I had somehow stashed drugs with it. I point this out now, because I was initially told that I had been charged with possession of heroin. Here is that document, from July 5, 2006, a full week after my arrest. This is not part of the chain, but it will become significant. Initially, the drug was “heroin.”

IMG_0004

Now for the McCracken County Sheriff’s Chain of Custody. The title page:

IMG_0006
One small baggie with yellow substance, suspected controlled substance.

Next page:
IMG_0007
Now the substance is yellow and now it is worth $100.00

Next page, a uniform offense report.
IMG_0009
Note that there is no DUI listed, although the arresting deputy, Eddie McGuire, describes the “Sheriff’s Department” as the “Victim” and notes that the “Victim” is “under the influence of drugs.” The DUI, in fact, was added in the next day.

Next page, a narrative:
IMG_0011
You might note that the ‘asking to buy heroin’ was not related in the 911 call, or the dispatch recording, or in the caller’s written statement the next day. We will be uploading all of these documents as well as footage, in future posts. Also, I’ll upload the dash cam arrest video of the roadside stop and search, and you can decide for yourself if my pants are unbuttoned and unzipped. Notable, he says, “Officer fell in behind the vehicle and stopped it.” Remember the Court of Appeals? They concluded that I stopped the cop. That is because the deputy told a brand new and entirely different account at trial 18 months later, when his off memory had had a good deal of time to improve.

Next page, the narrative is typed:
IMG_0015
You may note that the officer alludes to the idea that I lied about my orthopedic surgery, which was the result of a 30-foot fall, just two years prior. I’ll take care of that right now. Here is the xray of internal fixation to my right calcaneus. This photo is not part of the chain of evidence, but it is significant, because at trial, the jury was told that I refused all sobriety testing, even though my blood was sent to at least two labs. Chemical tesding of the blood in Kentucky, is considered a refusal in my case, but not in the Kentucky statutes.

The x-ray:
x-ray showing internal fixation of right calcaneus fracture

Last page of the typed narrative:
IMG_0016
Couple of significant things here. Note that he makes no mention of the DUI here. Also on the vacuuming. He testified in various hearings, that he vacuumed the day before, two days before, or the week before, or at Officer Terry Long’s house, or at the car wash, depending on the day and the version. He was never confronted on these inconsistencies by my trial lawyer, Department of Public Advocacy Director for Western Kentucky Chris McNeill, the most deceitful, worst lawyer in America.

Next page in the chain, the Offense Report:
IMG_0014
Note again, no mention of a DUI. What is significant is, there is a weight, and this is the first document that lists any weight. The item weighs “1.000 Grams.” The item’s description? “Cocaine (all forms but crack).” This form was typed on the night of my arrest. However, as you saw in the document above, my charge is “possession of heroin.”

Next document, Kentucky State Police Request for Examination.
IMG_0013
You will note that there is handwritten on this page “Sent 7/24.” The item sat, for a month, before it was “sent” anywhere. Recall that 7/24 was, coincidentally, the very same day that my blood result was faxed to the Commonwealth, indicating 0.00 alcohol, in my blood. Also recall that, four days later at the Grand Jury, the Commonwealth suborned perjury, claiming that no labs were available, and that I smelled of alcohol, and was “very unsteady” on my feet. During that month, both a preliminary hearing and a Grand Jury hearing had taken place. At the Grand Jury, the deputy said, “It’s gonna be crack.” A field test had ruled out heroin. So the heroin, that turned into Cocaine (all forms but crack) is now “gonna be crack.”

The next document is a typed sheet of paper that is not signed or filled out, nor is it an official form.
IMG_0017
The Kentucky State Police lab forms are notable for their indication of the type of form, at the bottom right hand corner of the form. That is missing, from this typed sheet of paper.
What is interesting is, it appears that a deputy DW Gibson, delivered the item to the lab, two days after it was sent, on 7/24. The item arrived on 7/26. That’s two days later. The lab that the item was sent to is in Madisonville, a little over an hour from here. Where it spent the two nights is unknown. Also, when it arrived at the lab, it had changed color, from yellow to off white, and more significant- It lost 86% of its weight. It weighed 1.000 Grams in Paducah. On arrival in Madisonville, it weighed 0.144 Grams. Also, now it is a solid, but in Paducah it was powder. Plus, there is no signature whatsoever to indicate that the item was released from the lab, to return to Paducah. The typed sheet of paper is blank, for the most part.

Somehow, it made its way back to Paducah, we have no idea how, but the next document indicates that the arresting deputy checked the item out, for some unexplained reason, on January 16, 2008. That is seven days before my trial:
IMG_0012
Released for trial- one full week before the trial, that included a weekend. Where was it? How much did it weigh? We have no idea. It could have been anywhere, including the officer’s back seat, his pocket, his refrigerator…We will return to the subject of January 16, in future posts, because as it turns out, that was a busy day. A busy busy day of photo-taking, emails back and forth, and phone calls. We will get to that.

Curiously, in October of 2012, six years after my arrest, and after I had served time, the item was still available. Oddly, the field test kit that was negative for heroin was also available, in the sealed bag, so I took photos at the Sheriff’s office.
Photo one:
IMG_0018

Photo two:
IMG_0019

That is the chain of evidence, from the McCracken County Sheriff’s office, for the drug item in my case. Chris McNeill never requested the chain of evidence documents.

What do you guys think about this chain of ‘evidence?’


Kendrick Johnson and the importance of collecting and preserving evidence

November 23, 2013

Saturday, November 23, 2013

Good afternoon:

The disagreements about the videotape evidence in the Kendrick Johnson case demonstrate the importance of establishing and following procedures regarding the acquisition and preservation of evidence by law enforcement personnel.

Acquisition of Evidence

Evidence can consist of real (land) and personal (things) property. Personal property includes statements, documents and photographs as well as audio and video recordings and the hard drives of computers and cell phones.

Personal property can be acquired from a person, business or organization by abandonment, consent, plain view seizure, Terry patdown, plain feel seizure, search incident to arrest, search authorized by warrant, inventory search, subpoena duces tecum.

Abandoned property is free for the taking. Anyone can seize it without the former owner’s permission.

Property may be seized from a person, business or organization by obtaining consent freely and voluntarily given by the person or authorized representative of a business or organization.

Police may seize any property they immediately recognize as evidence of a crime without consent or a search warrant, if it is in plain view and they have a right to be where they are doing what they are doing.

Pursuant to Terry v. Ohio, police may stop and temporarily detain a person whom they reasonably suspect has committed, is committing or is about to commit a crime in order to identify the person and briefly investigate the suspicion. To protect themselves, they may also pat down the suspect’s outer clothing and seize anything that feels like a weapon or controlled substance.

Police may arrest and search a person, if they have probable cause to believe that he or she has committed a felony. This is a search incident to arrest.

Upon a showing of probable cause to believe that certain property such as a vehicle, airplane, boat, residence or business, contains evidence of a particular crime, police may obtain a search warrant from a neutral and detached magistrate or judge authorizing them to search the property and seize that evidence. The Affidavit for Search Warrant in Philip Chism’s case, which was unsealed yesterday after a grand jury indicted him, is an example of an application for a search warrant and it reveals some, but probably not all, of the information obtained by police at that point in the investigation. Affidavits for search warrants are excellent sources for discovery material and, with the exception of a client’s statements, they are the only discovery a criminal-defense lawyer gets before trial in a federal case.

A search-warrant return is an itemized list of all of the property seized during the search authorized by a search warrant. Such a search is called executing the search warrant.

Inventory searches are routine searches of property seized by police, such as a vehicle or a wallet or purse, to itemize the contents. These types of searches occasionally result in a discovery of incriminating evidence. They do not require probable cause, so long as the police lawfully acquired the property being searched and inventoried.

A subpoena duces tecum is a subpoena (i.e., order to appear and testify at a hearing or deposition) to bring specified documents or property to the hearing or deposition.

Preservation of Evidence

With the exception of wet clothing or other wet evidence, every item seized must be maintained in the condition it was in when seized. Wet items must be dried to prevent contamination and possible destruction by fungus or bacteria. Each item must be separately packaged in sealed plastic or paper bags. Clothing and bedding should always be stored in sealed paper bags. Controlled substances must be described, weighed and packaged in sealed plastic bags. All evidence seized must be assigned a number, inventoried and stored in a secure area within the police department that is conducting the investigation.

Each evidence unit must maintain a log or record listing from whom and when evidence was received or to whom it was released and for what purpose.

Chain of Custody

Every item of evidence has a history beginning with who, when and where they seized it, who packaged it, who delivered it to the evidence unit and who logged and stored it away. Every time that item was examined, who examined it and for what reason must be documented in the log. If sent out for analysis and returned, the net weight of the item after testing must equal the difference between its original weight minus the weight of the amount removed for testing.

The chain of custody is the documentation of every human contact with a particular item in evidence. Police are required to document every contact so that defendants, lawyers, judges and juries can know that a particular item in evidence is in the same condition that it was when seized with any differences documented and explained.

A material break in the chain of custody should result in the exclusion of that item of evidence at trial.

The videotapes in KJ’s case

At this point, substantial questions exist regarding the videotapes, including whether they are complete and/or have been subjected to tampering.

I am especially troubled by the remarkable “coincidence” that the only camera focused on the area where the mats are stored and Kendrick’s body was found recorded an out-of-focus or blurry video.

Coupled with other evidence we have reviewed and the failure of the Lowndes County Sheriff’s deputies to immediately seize and preserve all of the videotape evidence, I believe I have a legitimate concern that evidence of a murder may have been destroyed or subjected to tampering in order to protect the person or persons responsible for KJ’s death.

Conclusion

Something is rotten in Denmark and the FBI has a duty to KJ’s family, we the people and to itself (since two sons of a special agent are potential suspects) to figure it out.


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