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Archive for Saturday, March 26, 2011

Kansas not among states requiring evidence retention

March 26, 2011

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— Legal experts say Kansas laws governing evidence retention don’t do enough to protect the rights of the accused.

State law requires a court order to destroy evidence, but there are no consequences for disobeying it, The Wichita Eagle reported for a story published Saturday.

Washburn Law School adjunct professor Rebecca Woodman said the lack of sanctions is one of the problems with the law.

For the past two years, her students have been studying the case of Ronnie Rhodes. The 56-year-old says he didn’t stab Cleother Burrell in Wichita in 1981 and wonders why he can’t seek legal relief. Destroyed evidence in his cases includes hairs taken from Burrell’s hands and a knife that prosecutors contended was the murder weapon.

Currently, 33 states require evidence in the most serious crimes to be maintained at least as long as a convicted person remains in prison. But Kansas is not one of them.

It wasn’t until Rhodes read a report on his case by The Eagle last month that he learned evidence in his case apparently had been destroyed without a court order, contrary to Kansas law.

Colorado had similar problems until it passed an evidence-retention law in 2008 that experts consider to be one of the strongest in the country. It requires police to keep biological evidence in violent crimes as long as a convict is alive. If evidence is destroyed, the law gives Colorado courts the discretion to reopen the case and decide whether the destruction of evidence violated a person’s due process rights.

The law was passed a year after the Denver Post reported that authorities had lost or destroyed evidence in hundreds of cases.

“It’s important laws allow the courts to provide some sort of remedy in case evidence gets destroyed,” said Rebecca Brown, senior policy advocate for state affairs for the Innocence Project in New York. “It helps close some of the loopholes in the laws.”

Since 2004, Kansas allows for the destruction of evidence in most cases after five years, said Joetta Richardson, who oversees tech services with the Wichita Police Department.

“Before that it was two years,” she said.

Since the early 1990s, she said, police have attempted to maintain evidence in homicide cases.

“We try to keep that stuff forever because of DNA and such things,” Richardson said. “But really it’s up to the detectives.

Brown, of the Innocence Project, said states need to consider the long spans it takes to discover wrongful convictions when crafting their retention policies.

She noted that although Montana has an evidence-preservation law, it allows police to destroy samples three years after a conviction.

“On average, our clients have been in prison 12 or 13 years by the time they’re exonerated,” Brown said of cases where DNA testing proved innocence.

Other states permit evidence to be destroyed when a defendant pleaded guilty.

“And we have 22 cases where people who pleaded guilty were exonerated by DNA,” Brown said.

Brown said research by the Innocence Project shows laws such as Colorado’s, and similar legislation in Alaska, work best in protecting people who may have been wrongfully convicted.

For now, there are no consequences for destroying evidence in Kansas in cases such as Rhodes’.

“It could certainly be said to violate due process in the sense that the destruction of the evidence hinders, or deprives entirely, Ronnie’s ability to prove his innocence,” Washburn’s Woodman said. “But standing alone, it doesn’t get Ronnie a new trial.”

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