Judge Dan Kellogg upheld the motion to dismiss murder charges against Dallas Cox on Friday in Buchanan County Circuit Court.

Kenneth Akin assaulted his nephew Stephen Akin last October. Stephen Akin died a week later from blunt force trauma to the head, but not before telling St. Joseph police in a written statement that Mr. Cox kicked him in the head during the assault.

Kenneth Akin pleaded guilty to voluntary manslaughter in November, testifying that Mr. Cox had no part in the assault. But based on Stephen Akin’s statement, the prosecutor’s office filed second-degree murder charges against Mr. Cox and was set for trial on Sept. 29.

The only problem was that then-detective John Garland mistakenly destroyed most of the physical evidence back in March. That included shoes police took from Mr. Cox when he was arrested, nail scrapings from the victim’s hands and hair samples from Stephen Akin’s head.

When Mr. Cox’s attorneys discovered on Sept. 9 that Mr. Garland purged the evidence, they filed a motion to dismiss the charges against their client. Defense attorneys Eric Vernon and Kevin Baldwin argued that if Mr. Cox’s shoes had no trace evidence from Stephen Akin, or if the hair from Stephen Akin’s head had no trace evidence from Mr. Cox, their client could be cleared of guilt in this case.

In his ruling, Mr. Kellogg concluded that police have an obligation to preserve evidence that could exonerate the defendant, citing a 1988 Supreme Court case. The judge relied on a “bad faith” test, meaning officers would have to have knowledge of the evidence’s value in exonerating a defendant at the time they destroyed it to violate a defendant’s constitutional rights.

While Mr. Kellogg conceded that Mr. Garland had “no direct knowledge” of the evidence’s value in the Cox case, the judge added the entire department is responsible for knowing evidence’s value. In other words, why else would officers collect and keep evidence unless it had value in determining whether or not the defendant was guilty? Therefore, on some level, Mr. Garland had to know the evidence had value to this case, Mr. Kellogg reasoned.

“While this court recognizes that the State is under no duty to conduct the examinations, there is a duty to preserve,” Mr. Kellogg wrote. “That was not done in this case.”

Mr. Vernon had no comment following the ruling.

Ron Holliday, the first assistant prosecuting attorney, said he felt sorry for the victim’s family and intended to appeal the ruling. He left further comment to the county prosecutor, Dwight Scroggins.

“The appeal of that decision, and ultimately any trial that may occur, are now going to be a year, year and half delay. That’s just really unfortunate for everyone involved,” Mr. Scroggins said. “There is no question that the destruction of the evidence was unfortunate. That certainty is a consideration, but we argued, and still believe, that if it is not done intentionally, that it’s not the basis for dismissal. That’s the issue we will place in front of the Appellate Court, and they will decide.”

R.J. Cooper can be reached

at rjcooper@npgco.com.

t was reported in Saturday’s A1 story “Murder charges dismissed” and Tuesday’s A4 editorial “Our opinion: Both sides rely on evidence” that Kenneth Akin pleaded guilty to second-degree manslaughter in November. Mr. Akin actually pleaded guilty to voluntary manslaughter.

The News-Press apologizes for the errors.