War over discovery and exculpatory evidence

 Why is it that prosecutors don't want to turn over evidence? Are they scared that if they do, they are going to lose? When I was a prosecutor, I figured that if I showed you how strong my case was, you would be more likely to take my plea offer. And, if there were weaknesses in my case, I needed to understand and acknowledge them. I had several cases I sent back to the detectives for further investigation.

In the end, the mandate of the prosecutor is to DO JUSTICE.

When I worked for the DA of New York, the mandate was taken seriously. That was a dozen years ago, and I don't know how things are today.

In Tennessee - the mandate seems to be to win at all costs. Cases are brought without sufficient evidence. I get the feeling the standard the prosecutors use for measuring a case has nothing to do with proof beyond a reasonable doubt but whether or not they have enough for the much lower probable cause to get through preliminary hearings and grand juries.

I think the problem is that most criminal cases plea out. So, the prosecutors know that if they can get it past preliminary hearings and grand jury, then the defendant is likely, probably 97 or 98 percent of the time, to plea. Those are pretty good odds for the prosecutor.

Frankly, I blame my fellow defense attorneys and myself. We need to do a better job demanding evidence and defending our cases. We need to attack the case more and be willing to take cases to trial. The more we do that, the more likely we are to accomplish a couple of things.

1. Get better results for our clients;
2. Get weak cases dismissed;
3. Win jury trials;
4. Get better plea offers for our clients;
5. Force the prosecutors to take a close look at their cases from the start (this will happen if we take away the almost guaranteed plea deal from them and make them work for their case).

A wise friend once said that the quality of the prosecution in your town or county is a direct reflection of the quality of the defense bar. (Brent Turvey, criminologist). I believe that to be a true statement.

The more we hold their feet to the fire, the more they will demand from their police officers in the field. There will be fewer weak cases - frivolous you might call them, fewer unjust pleas, the case loads will lighten up, and the real cases will go forward. We will have a more proficient defense bar that is willing to take more cases to trial.

Believe me, in many instances, you will get a better result from 12 of your neighbors in a jury trial than you will ever get from the State. And, if the prosecutor knows you are willing to go that far, he will become much more realistic, much quicker.

Results speak for themselves. Over the last year, I took four criminal cases to trial with not guilty verdicts on all of the charged crimes. Subsequently, I have answered ready on three felony cases, one a first degree murder, one a rape and one a coercion case, all of which have been dismissed by the State prior to trial.

If we do this, if we fight for discovery and exculpatory evidence. If we battle the case all the way through, the quality of our criminal justice system will improve for everyone. Trials get the citizens involved, too. The community will feel it has a stake in the system. This is a good result and empowering for all of us. Believe it or not, it is even a good policy for the prosecutors.

Never say die. Put on your best defense.

Bob V
rlvogel@robertvogellaw.com

FBI crime lab testing evidence in Ja'Naya Thompson's killing

By ROBIN FITZGERALD

rfitzgerald@sunherald.com Twitter: robincrimenewsSeptember 20, 2014 

2014-09-21T05:44:25Z

By ROBIN FITZGERALD Sun_Herald

 

FBI Lab Director Dwight Adams, right, explains trace evidence examination during a tour of the FBI's then-new crime lab in Quantico, Va., in 2003. Evidence is being analyzed there that was collected in the disappearance and killing of 5-year-old Ja'Naya Thompson.                                 

 

GULFPORT -- One of the largest, most comprehensive crime labs in the world is analyzing evidence collected in the disappearance and killing of 5-year-old Ja'Naya Thompson.
It's the FBI Laboratory in Quantico, Va., whose teams have recovered evidence in some of the most high-profile international disasters and performed forensic tests to identify child pornographers, kidnappers and terrorists.
Local police typically use the Mississippi Crime Laboratory or a private crime lab for forensic tests to solve a crime.
So how did the Gulfport Police Department obtain the full resources of the FBI?
Panic gripped neighbors, first responders and strangers July 16 when a search of The Palms apartment complex turned up no sign of Ja'Naya. She had been playing outside the sliding-glass doors of her family's apartment before she disappeared that night.
"All the conventional methods we were using were not finding her," Police Chief Leonard Papania said.
Asking for help
"We were getting concerned if we were moving forward properly. As we were garnering resources to search for her, I reached out to the FBI for their expertise. We were thinking it was going to go long-term."
Agents from the FBI's Gulfport office were on scene the next morning when a search-and-rescue dog, using the scent from a piece of Ja'Naya's clothing, raised suspicions outside a vacant mobile home on Whitney Drive, about 50 yards north of the apartments. A search team alerted some Gulfport firefighters. They found Ja'Naya hanging from two socks tied to a metal bar on a small window above the bathtub. It appeared she had been sexually assaulted.
The girl, who loved to dress up and wear jewelry, died of asphyxiation by strangulation. She was looking forward to starting kindergarten at the school across from her apartment on Klein Road.
Papania said the FBI offered to bring in its evidence-response team unit from the Jackson office, which oversees FBI activity in Mississippi. He accepted the offer.
More than 100 pieces of evidence were collected, according to police testimony in the recent preliminary hearing of Alberto Garcia.
Garcia's arrest
Police arrested Garcia, 29, the day after Ja'Naya's body was found. Police said they were questioning him about her disappearance when he voluntarily admitted he had broken into the mobile home days earlier, saying his fingerprints would be found there. Garcia also lived at The Palms.
Police first arrested Garcia on a burglary charge, but identified him as one of two suspects in the killing. A judge set his bond at $500,000.
A few days later, Garcia asked to speak to a detective, and reportedly gave information only police and the perpetrators would have known. He also told them a neighbor, Julian Gray, came to his apartment that night and told him he'd had an incident with a girl and needed his help, recent testimony revealed.
Police said Garcia confessed to sexually assaulting Ja'Naya and helping hang her.
Police arrested him on a capital murder charge July 23. He is being held with no bond.
Testimony at Garcia's preliminary hearing revealed his DNA and statements to police linked him to her sexual assault and hanging. The testimony offered no explanation as to who took Ja'Naya to the trailer.
Gray a person of interest
Meanwhile, the 31-year-old Gray, also a resident of The Palms, is held on unrelated charges and remains a person of interest.
Two months later, Gray has not been charged in Ja'Naya's death.
Papania said the FBI Laboratory is continuing to process evidence.
Police arrested Gray the night Ja'Naya was found dead. He is held on bonds of $500,000 on charges of rape and sexual battery. Police have said they arrested him on the complaint of a female acquaintance who claims he sexually assaulted her at his apartment.
The lack of a second arrest has drawn criticism from some in a widespread community that united in an outpouring of concern for the child and her family.
However, grand juries often decline to hand down indictments in cases in which tests on crucial evidence have not been completed.
Status of evidence
So where does the processing of evidence stand?
"As a matter of practice, the FBI Laboratory does not publicize information regarding forensic examinations conducted in support of criminal investigations that belong to our law enforcement partners," said FBI Special Agent Ann Todd of the Office of Public Affairs in Quantico.
Todd said the FBI lab "uses cutting-edge science and state-of-the-art technology" and has more than 500 scientific experts and special agents. "The men and women of the FBI Laboratory are dedicated to using the rigors of science … to assist law enforcement and national security investigations worldwide."
Papania said he has no idea how long it will take.
"We all want this to be done and over with," he said. "The quality of the process is what we need to focus on. Our job in law enforcement is to bring it to a conclusion, and when we conclude our investigation, the District Attorney's Office will take over.
"By no means has this investigation concluded."

Read more here: http://www.sunherald.com/2014/09/20/5811723/fbi-crime-lab-testing-evidence.html#storylink=cpy