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.


Federal investigation of George Zimmerman continues despite shutdown

October 7, 2013

Monday, October 7, 2013

Good morning:

Attorney General Eric Holder has announced that the federal investigation of George Zimmerman will continue despite the government shutdown. The Department of Justice and the FBI are investigating Zimmerman to decide whether to seek an indictment by a grand jury in the middle district of Florida charging Zimmerman with committing a hate crime when he shot Trayvon Martin to death on February 26, 2012.

The United States District Court for the Middle District of Florida is located in Orlando. To find out more information about the court, please check the website.

I do not know why the investigation is taking so long. Seems pretty clear to me that despite the not guilty verdict, Zimmerman profiled Trayvon Martin because he was a young black male and decided to hunt him down and restrain him until police arrived. When Martin resisted, instead of quietly and passively submitting to his authority, Zimmerman shot him in the heart at point blank range killing him.

Martin was walking home in the rain after purchasing a can of iced tea and skittles at a 711. He was having a conversation via cell phone with Rachel Jenteal, a friend in Miami, when Zimmerman started following him. Martin was unarmed.

I believe Zimmerman targeted and killed Martin because he was a black kid and that is a hate crime. I do not believe there is any doubt that Zimmerman called Martin a “fucking coon” during his call to the Sanford Police Department that night. State prosecutors appeared to bend over backwards to assure the jury and the public that the killing was not racially motivated when they changed fucking coons to fucking punks. Because of that mischaracterization of important evidence of Zimmerman’s state of mind and intent as well as many other questionable decisions, I have concluded that Angela Corey’s prosecution team threw the case allowing the defense to win.

Why would they do that?

I believe they did it for political reasons. They wanted to create the appearance of a prosecution rather than a real prosecution in order to appease black voters angered by the murder and reassure white voters angered by the decision to prosecute Zimmerman. They wanted the jury to acquit Zimmerman after putting on a dog and pony show so that the governor could say “the jury has spoken, let’s move on.”

The strategy did not work for me. Instead, it convinced me that institutional racism is responsible for the verdict.

I will never forget that the prosecution permitted the defense to improperly elicit opinion evidence from Chris Serino and Doris Singleton, the two Sanford Police officers who interrogated Zimmerman, that he told the truth when he claimed that he shot Martin in self-defense.

That was clear and convincing evidence of racial prejudice, in my opinion.

The Justice Department and the FBI have much to consider in this politically explosive case and that may be why they are taking so much time to decide what to do.

The answer is simple. Seeking justice for Trayvon is the right thing to do. Pray they have the stones to do it.

______________________________________________________________________________________________________

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