Mimesis Law
18 November 2019

A Pattern of Evidentiary Misconduct? Blame Technology

June 27, 2016 (Fault Lines) — Prosecutors in Fort Wayne, Indiana, found themselves on the receiving end of Judge Fran Gull’s wrath. With a pattern of discovery problems, Judge Gull dismissed a felony battery charge and found the Allen County prosecutor’s office acted with gross negligence.

In her handwritten order, Gull lambasted prosecutors for their conduct – and noted the presence of [Allen County Prosecutor Karen Richards] and Chief Deputy Prosecutor Michael McAlexander for the hearing.

“Court finds the state grossly negligent in the performance of its duties by way of a pattern of discovery violations and grants the motion to dismiss,” she wrote.

In the case at hand, Eddie Billingsley had gotten into a tussle with police when officers responded to a disturbance and found Billingsley obviously intoxicated. According to reports, Billingsley fought officers when they attempted to place him in the police car. He continued to struggle with police as they took him to a hospital for a blood draw to determine just how intoxicated he was.

Charged with felony battery to a police officer, the public defender’s office assigned Michelle Kraus to defend him and the case was scheduled for trial last week. On the eve of trial, the prosecutor provided a key piece of evidence.

Kraus had been asking for more than two months about a video from the in-car police camera that might have shown what happened during the arrest. After being told repeatedly there was no video, she heard different information late last week. But it wasn’t until mid-morning Monday that Kraus finally obtained a working copy of the video.

With trial scheduled to begin on Tuesday, it seems the prosecutor finally got around to looking for the requested evidence. Despite the prosecutor’s prior assertions that no video existed, apparently the real problem is technology:

Richards said in an interview Tuesday afternoon that the problem in this case was one of technology.

“We missed one,” she admitted. The problem, she said, is that there is now so much digital material compiled as part of a case, the prosecutor’s office might not even be aware of what all it has or what is available.

“I don’t think the court really understands how difficult technology has made finding things for discovery purposes,” Richards said. “I don’t think it’s anywhere close to negligence on our part.”

Technology is great, until it isn’t. Technology saves time and resources, for the most part. Yet, it would seem that technology in prosecutions has issues. With technological advances and digital evidence, it seems prosecutors have perhaps forgotten how to pull together evidence and a case file. How about a phone call to the police department? How about an email to the records custodian? A few quick checks just might reveal what evidence exists. Better yet, why not require police agencies to turn over all evidence when charges are filed?

Lest you believe this was an isolated incident and they simply “missed one,” remember Judge Gull found a pattern of discovery violations.

It was not the first time Kraus claimed difficulties in obtaining materials from the state of Indiana, via the office of Allen County Prosecutor Karen Richards.

In fact, on three prior occasions, Kraus found the prosecutor’s office was either late disclosing evidence or simply failed to provide key evidence.

The first occurred in 2011, when Andre Washington was accused of murder in the fatal robbery of pizza delivery driver Ian Crace. Not long after Washington’s trial got underway, it was revealed that two deputy prosecutors never told Kraus and her co-counsel that the time stamp on security camera footage was off by an hour.

The next day, prosecutors were accused of failing to turn over a ballistics report that eliminated a potential murder weapon.

Allen Superior Court Judge John Surbeck cautioned the prosecution, denied a request for a dismissal, and ordered a mistrial. Prosecutor Richards largely blamed a difficulty in getting timely information from police agencies about developments in the cases.

So in 2011, Richards said the problem was a difficulty in getting information from police agencies. Perhaps this was before all the technology. Maybe the phones didn’t work back then either.

In two more incidents (2012 and 2015), Richard’s office failed to turn over a sketch drawn by her client and a videotaped statement from a cooperating witness. In each instance, the Judge Surbeck denied motions to dismiss but noted:

This is the beginning, not the end, of some significant issues about discovery in this county.

Significant is that Kraus was assigned each of these cases. Significant is that she was able to establish a pattern or practice of violating discovery obligations. More significant is that Judge Gull took a stand and held the prosecutor’s feet to the fire.

It is all too common that discovery abuses occur. Most are not deliberate, yet there must be accountability for all abuses, intentional or not. Across the country, prosecutors are overworked, much like public defenders. With large dockets and new cases rolling in daily, prosecutors often triage cases. They deal first with those rapidly approaching trial.

This usually means they are working on the trial case approximately a week prior to trial. Until then, there are simply too many other trial cases in front of that one that also need attention. Unfortunately, this approach leaves major gaps in discovery until about a week, or maybe two, before trial.

But, to blame this problem on technology is missing the mark. Prosecutors decide how many and which cases they file. They decide which cases are worthy of their time, attention, and resources. They also control how and when they expect and demand evidentiary disclosures from police departments.

Undoubtedly, Kraus cannot be the only attorney to have experienced this pattern. Richards has known about these issues since at least 2011. She blames police departments and technology. Why has she waited until 2016 to start addressing this?

Responding to what he called a “mistake,” Chief Deputy Prosecutor Michael McAlexander remarked:

If the goal was to send us a message we received the message.

McAlexander said he met with police Wednesday afternoon to see if they can come up with a way to get evidence over to the Prosecutor’s Office so something like this doesn’t happen again.

Yes that explains it: they waited until 2016 for a message. Judge Gull’s message has been received. Now they can start looking for a solution.

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