Saying that police and prosecutors have no "duty" to preserve DNA evidence in criminal cases is like saying they have no duty to seek justice.
But that's what the law in Colorado allows. It holds the cops and district attorneys to no standard of biological evidence preservation and imposes no punishment for the needless or negligent destruction of information that might free the wrongly convicted or settle unsolved cases.
Reporters Miles Moffeit and Susan Greene brilliantly outlined the legal travesties bred of lost or destroyed evidence in their just-concluded series Trashing the Truth in The Denver Post. Moffeit and Greene looked at cases across the country and found 141 where they said lost or destroyed DNA evidence might have affected the outcome.
In Colorado, they focused on two cases. One was a man convicted of murdering a Ft. Collins woman years after the fact based on circumstantial evidence. The other was a Denver man convicted of rape on the basis of a dream by the victim before sophisticated forensic tests were widely applied. In both cases the destruction of evidence cost the accused a chance at freedom, although the Ft. Collins case is being reviewed.
But freeing both men is beside the point. No one wants the guilty to walk free. What they want is a system that bends over backwards to do what in theory makes the American judicial process the best in the world: Protect the innocent.
When it comes to handling evidence, Colorado lacks the safeguards to do that. So it’s the legislature’s turn to act.
"The prospects for some kind of improvement of what we're doing are good," Speaker of the House Andrew Romanoff told me Thursday morning. "I think we can work something out."
Whether that something is a proposal by Wheat Ridge Rep. Cheri Jahn to mandate the preservation of evidence in major felony cases and to punish those who don't remains to be seen, Romanoff said.
Romanoff said a cold case law passed in the General Assembly's last session contained some requirements for evidence preservation.
Jahn remains adamant about the need for a new statutory fix.
"People say you have to allow for human error," she said. "But when you're messing with someone's life, you have to preserve the evidence. Here, we have no duty to preserve. That's not human error. It's a lack of good policy."
Gov. Bill Ritter's spokesman Evan Dreyer told me his boss, an ex-prosecutor, is looking into the matter, but hasn’t decided what to do.
Jahn says the governor's people have asked to meet with her.
Dave Thomas, the former Jefferson County District Attorney who now heads the Colorado District Attorneys Council, didn't return my call. I wanted to ask him how his organization justified current practice.
"I met with their main lobbiest," Jahn said of the District Attorneys Council. "He said he would have to poll the group's members and get back to me."
That hadn't happened by late Thursday afternoon.
Denver District Attorney Mitch Morrissey declined comment on Jahn's initiative until he saw it in writing. But Morrissey expressed concern about the costs of new evidence preservation standards and the inability of jurisdictions to pay for them.
"The state needs to be careful of unfunded mandates to localities,"Morrissey told me. "The state will need to help finance property bureau expansions, especially if you're going to have criminal sanctions. Preservation of evidence doesn't come cheap."
Morrissey also warned of a reluctance by investigators to put themselves at risk.
"If their reaction is 'If I collect this and lose it, I get prosecuted,' then I'd hate to see a case where the police didn't collect the evidence at all."
We all would hate to see that. The question is whether we would hate more the prospect of innocent people in prison or unsolved crimes because evidence gets lost or destroyed.
As Jahn said, "You can't just say, 'Doggone it. Don't do that again.'" Sanctions, she explained, make evidence preservation as serious as it should be.
Politics is ever the art of compromise. What Coloradans can't afford to accept is the status quo. Preservation of evidence — especially scientific evidence that can empirically prove guilt or innocence — is not negotiable.
Reacting to the Post's series, Morrissey has posted a lengthy explanation on his website under the title "Setting the record straight." It deals with the case of Clarence Moses-EL. Moses-EL was convicted of rape in 1987 after the victim said his identity came to her in a dream. Sentenced to 48 years in prison, Moses-EL sought and got a court order for DNA analysis of evidence in 1995. But Denver police threw away the biological evidence before those tests could be performed.
Morrissey's explanation on his website is as follows:
In the Moses case, it was more than six years after he was found guilty at trial that the defendant asked the Court to allow him to perform DNA testing on evidence. When the Court approved his request and issued its order, the Denver Police Department and the Denver DA's Office complied with the order.
The evidence was retrieved from storage in a timely manner, safely packaged and left at the property management bureau at the police headquarters building so that the defendant's attorney could conveniently pick it up. The attorney was notified that the evidence was ready to be picked up as soon as he had a judge sign the stipulated order which was already signed by the DA's Office.
It wasn't picked up. First days and then weeks went by. The evidence that had been requested and made available sat there. A separate, routine discarding process resulted in the evidence being thrown out after it had sat there for about a month.
If Morrissey wants to share the blame with Moses-EL's lawyer, fine. Take the district attorney’s words at face value. That doesn't change the result. Evidence that wasn't supposed to be destroyed was thrown out. Regardless of intent, that fact alone proves the case for a law that makes prosecutors and police — as well as defense attorneys — accountable for evidence when someone's freedom is on the line or when a case remains unsolved.
Victims of crimes benefit from the enforced preservation of evidence. Trauma knows no statute of limitations, especially if a case remains unsolved. More dangerous, however, may be the sense of false security for society as well as the victim that comes from imprisoning the innocent.
You can believe that police and prosecutors try to do hard jobs well. You can believe they are honorable people. This isn’t about trust. It's about justice. And justice demands checks and balances.
Right now, when you talk about preserving critical criminal evidence in Colorado, the scales tip only one way.
"People look at this and say, 'Oh my God, how can this happen here?'" said Jahn. "People ought to be very afraid."