Evidence, Lost

When fire broke out in the police evidence warehouse in Red Hook, Brooklyn, my initial reaction was that a lot of defendants were going to walk when the prosecution was unable to introduce evidence at trial. But the Legal Aid Society has raised a very different question about lost evidence.

A week after a three-alarm fire destroyed a Red Hook New York City Police Department warehouse that contained decades’ worth of evidence, the Legal Aid Society said the blaze will have “far-reaching consequences” for ongoing court cases and called for the city to conduct a thorough investigation of what was lost in the fire and contact defendants whose cases have been impacted.

“We recognize that this is an evolving situation, and we expect there will be an investigation in the coming weeks about precisely what evidence was lost and what cases the fire impacted,” wrote David Loftis, head of Legal Aid’s Post Conviction & Forensic Litigation department, in a Dec. 19 letter to Mayor Eric Adams, Police Commissioner Keechant Sewell, and each of the city’s five district attorneys.

The warehouse contained decades worth of old evidence, which included biological evidence that would contain DNA that could prove a defendant guilty or not.

When that investigation is complete, Loftis asked that the city produce a full list of evidence that was impacted by the fire, plus the names of the affected cases; to immediately share that information with the defendants whose cases may be affected and their lawyers; and to make data about the impacted cases available to the public.

To inventory what evidence was there, what cases and defendants it related to, and whether it was salvaged (and in what state) or lost, seems like the absolute minimum duty for the NYPD as stewards of evidence. While DNA doesn’t come into play in the vast majority of cases, it does in many, ranging from murder to burglary. Fortunately, no rape kits were stored at the warehouse, which held hundreds of e-bikes, “notorious for causing damaging fires.”

And while DNA won’t necessarily exonerate any particular defendant, it never hurts to try since a convicted defendant can’t be convicted again if the evidence confirms identity. There’s always a chance that it won’t, it’s been corrupted or DNA from others has found its way into the evidence to create sufficient confusion to form the basis for a new trial or exoneration.

Was there no precautions taken to safeguard against the loss of evidence?

In newer cases, DNA evidence would be cataloged in electronic databases maintained by the NYPD and the Office of the Medical Examiner, he said, but in older cases where the evidence was never catalogued in electronic databases, the original samples stored at the warehouse are often the only place where the genetic evidence exists.

Of course, catalogued new evidence doesn’t help defendants in older cases. Nor does it do much to help defendants who challenge the DNA evidence in new cases. You can’t test a picture, or description or database for DNA. But how much of a problem is this really?

Oren Yaniv, a spokesperson for the Brooklyn district attorney’s office, said even in cases of exonerations, relatively few cases rely on old DNA evidence. In Brooklyn, he said one case in two dozen has relied on old DNA evidence since the DA’s office revamped its Conviction Review Unit in 2014.

While this may be true, it doesn’t confront those defendants who have been fighting to get access to DNA testing in the face of prosecutorial resistance. If the district attorneys were not so bent on denying DNA tests in older cases, would the number of DNA exonerations rise? And if you happen to be that one defendant for whom DNA evidence is exonerative, does the number matter when it’s your innocent life on the line?

It’s not as if the NYPD had no clue that the evidence was at risk. This warehouse was battered by Hurricane Sandy and significant biological evidence was lost.

When Hurricane Sandy hit New York a decade ago, the issue was thrust to the fore when the Red Hook warehouse where the fire occurred this week and a second storage facility flooded, damaging thousands of barrels containing DNA evidence. The flood affected numerous criminal cases after the storm.

The question remains who will bear the burden of this “act of god,” the prosecution or the defense. The argument that the NYPD as custodian of evidence couldn’t anticipate a hurricane that would cause enormous damage carries less weight the second time around, when a fire breaks out. While the cause may be different, the vulnerability of their evidence warehouse was known and could have been addressed.

“It’s at all related to poor conditions in those facilities. Poor supervision, poor monitoring, poor upkeep,” said civil rights attorney Debra Cohen, who added that civil cases also rely on the NYPD’s storage of evidence. Even without an event like a fire or a flood, Cohen said attorneys often raise red flags about individual cases in which DNA evidence has degraded because it wasn’t properly stored.

It may be true that the lost evidence would not, had there been no fire, affected a great many defendants, but it may well have altered the convictions of a few, and those few innocents are entitled to rely upon the custodian of evidence to preserve it without any excuses or oopsies. This is a mess.

That it may be a mess for the prosecution, not to mention the public, if the evidence needed to prosecute defendants was lost and cases are dismissed for the inability to produce physical evidence is a burden that the NYPD could have shouldered had it taken actions necessary to protect the evidence better. As for the defendants seeking exoneration, there was nothing they could do to safeguard proof of their innocence. Should they be denied the opportunity to prove their innocence because the police failed to safeguard the evidence?