November 22, 2009
What's Inside:
Our opinion: Both sides rely on evidence
Tuesday, October 20, 2009
Tuesday, October 20, 2009
If justice is blind, then evidence is supposed to be neutral.
Evidence is what it is, unless for some reason it is not available to be inspected and considered by a jury or judge. And that’s exactly where matters stand in the State vs. Dallas Cox.
As recounted in the News-Press last week, Judge Dan Kellogg has upheld a motion to dismiss a second-degree murder charge against Mr. Cox because a police detective mistakenly destroyed most of the physical evidence in his case, including shoes and hair samples.
Stephen Akin died of blunt force head trauma last year, a week after sustaining his injuries. Before he died, he said in a written statement that Mr. Cox kicked him in the head during an assault. A second man, Kenneth Akin, the victim’s uncle, already has pleaded guilty to voluntary manslaughter in the case but said Mr. Cox was not involved.
Sorting out conflicting stories — one from the victim, now dead, and one from a man who already has admitted guilt — promised to be daunting enough. But now prosecutors are fighting to have the courts overlook the problem that much of the evidence is gone.
Mr. Cox’s attorneys contend that if his shoes bore no trace evidence from the victim, or if the victim’s hair samples bore no trace evidence from Mr. Cox or his shoes, then a judge or jury reasonably could clear him of the murder charge. It’s a compelling thought.
Buchanan County Prosecutor Dwight Scroggins suggests he has no other recourse than to pursue the issue on appeal, citing concern for the victim’s family. He will ask the appeals court to rule by his reading of the law — that if the destruction of the evidence was not done intentionally, then the case should not be dismissed.
Perhaps not, but any judge or jury hearing this case down the road will have to weigh this: Willful or not, the evidence is gone. And the defense must reasonably be allowed to bring that point up and be allowed to offer its theories for what the evidence might have shown.
Then someone must decide whether a murder conviction is warranted beyond the shadow of a doubt. Good luck with that.
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.
This story has 16 comments. Click here to join in on the discussion.
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Judge Kellogg was correct in his ruling. And for all of you that will follow saying "A murderer goes free", you do not know if the man is guilty or not. No one will ever know for sure now.
Dallas Cox knows......
portions of physical evidence may be gone but there is a death-bed statement. should this statement be consistent with the trauma it seems logical that a basis exists and is appropriate for further charges.
Do you understand what exculpatory evidence is?
"A second man, Kenneth Akin, the victim’s uncle, already has pleaded guilty to second-degree murder in the case but said Mr. Cox was not involved."-NP
Casenet states that Akin plead guilty to "voluntary manslaughter" and was sentenced to 15-years, not murder 2.
the statement was obtained prior to the motion to dismiss and before the decision of the judge, therefore not after the fact. an appeal could be viable arguing that facts in evidence were not sufficiently weighted. i.e. why would a mortally wounded person give false testimony about his attacker(s).
If mortally wounded a person might not be very coherent. Likewise not sure why evidence should be destroyed case open shut or otherwise. Might need it again.
directtalk ... just to clarify, the appellate courts deal with issues of law, not issues of facts.
Unfortunately, the detective did a horrendous disservice to the public. I do understand accidents happen.
I have a criminal defense atty friend that is a conservative Republican. I've asked him how could you represent criminals and his response surprised me. "If me, doing a good job forces the police and D.A. to do a better job, then I will have protected my family and community."
I am by no means a tree hugger or sentimental towards criminals, as a former police officer I am pro law enforcement 100%, however, there is a lot of inferior D.A. and law enforcement work convicting people who can't afford the appropriate defense team (attys, P.I.s, experts, etc.).
The frequent result: a lazy approach to investigations by law enforcement and the D.A. that "my word is gold" as opposed to developing factual supporting evidence. This by no means is a broad brush of all law enforcement or D.A.s.
The last thing I want to see is a guilty person run free, however, worse yet, an innocent man incarcerated. Time is one commodity that you can never get back.
There was no "death bed" confession by the victim that would be admissible. Those are for criminals.
You mean to say that he made a "dying declaration." The victim did not do that either. He made a written statement a few days before dying to the police however, it was before he knew he was dying. To be a dying declaration it must be made with knowledge that the end is here.
As such, the statement of a victim made in the investigation that is not a dying declaration is inadmissible as "hearsay" evidence b/c the defendant cannot cross examine the victim. Usually, that isn't a problem in a case where there is other AMPLE evidence of guilt, such as forensic trace evidence. Which is what the police destroyed.
Also, the Uncle did not plead guilty to murder, but to manslaughter and it appears from casenet that Cox's charges were increased after he refused to plead to the assault he was originally charged with. THAT IS CONCERNING!!!!!
What is going on with the police and DA here in St. Joe??
directtalk
I don't think you understand what you are talking about. The Court of appeals will not review the evidence of the statements made by the victim and whether or not they could carry the case. That issue was not the reason the case was dismissed.
The case was dismissed b/c the only independent evidence that was to be held by the police and used by the police OR the defense was destroyed by the police. The dead guy said Cox kicked him. That statement likely would not have come into evidence b/c of the timing of it. But the Uncle pled guilty and said in court on two occasions that Cox had nothing to do with it and was out in the car during the fight. Just like on CSI, the physical evidence could damn him or set him free. But when the cops destroy the evidence, its too bad for them, not for the person accused.
Anyway
looks like we will have to see how the appeal plays out.
If it plays out, it will play out only on the issue as to whether or not the Judge "abused his discretion" in making his ruling. That is one of the highest standards to overcome at the appellate level. The appellate court will not even look at the statement of the victim. They will only look to see if the judge abused his descretion in ruling to dismiss the case based upon the evidence presented during the hearing on the motion to dismiss as the law is applied to it.
In the end, Cox will likely win on appeal and Buchanan County will make "bad law" for all police agencies as the adverse ruling will create a stronger argument for all defense attorneys across the state, as opposed to just this one case.
ImaLawyer, is it really "bad law" to hold the police to a high standard? I assume that you use bad law in the context of making things more difficult for the police, but they really need to be careful of how they handle evidence. They have to be held to a standard that gains trust of the citizenry. Quite frankly, I personally do not have that trust at this time.
WhoisJohnGalt:
Always nice to see a fan of Atlas Shrugged! I put the term "bad law" in quotes b/c that is how law enforcement usually sees those types of decisions. My grandfather was an officer in the 60s when Miranda came out regarding having to read people their rights. In his eyes as an officer, that was "bad law."
I agree, we expect more of our law enforcement officials. Policy and procedure should be followed. The very number of people who have now been exonerated (shown innocent) by DNA and trace evidence after years in prison or on death row tells us much about the importance of evidence and the fact that just b/c someone is charged, doesn't mean they did it.
I am actually more concerned about those who can't afford the type of lawyers that Cox could afford. What about those who can't hire the high priced Kansas City talent he did? I checked their website "baldwinvernon.com" and they both are savvy experienced trial attorneys.
Do others deserve less justice than Mr. Cox got just because they can't afford these guys? The other guy in this case had a public defender and got 15 years.
I will say that many of us who practice here in St. Joseph have read the briefs and the decision of the Judge and are now questioning whether or not evidence in our criminal cases were also destroyed but we were never told because we accepted a plea deal instead of pushing for a trial like Mr. Cox did.