Maryland court says prosecutors must widen search for evidence

In a unanimous ruling this month, Maryland’s Court of Appeals said prosecutors must conduct a thorough search for evidence before telling a defendant on appeal that they can’t find it.

The ruling came in the case of Douglas Scott Arey, who was convicted 33 years ago of killing his ex-boss. After Maryland passed a statute in 2001 allowing inmates to seek DNA testing on appeal, Arey filed a motion, only to be told his evidence could not be found in the Baltimore Police Department’s evidence storage unit. Arey’s attorneys appealed this decision, saying police and prosecutors hadn’t searched enough.The appeals court agreed with Arey.

"Because the State was the custodian of the evidence, the State needs to check any place the evidence could reasonably be found, unless there is a written record that the evidence had been destroyed in accordance with then existing protocol," Judge Irma S. Raker wrote on behalf of the court.

The state will now be required to regularly check police departments, prosecutor’s offices, hospitals and labs, the court said. Both defense attorneys and prosecutors said the ruling was reasonable. Maryland is one of

42 states

with a statute allowing defendants to seek DNA testing on post-conviction appeal, but standards vary widely across the country in the requirements on prosecutors to search for evidence. Now, in Maryland, the standard is clear.

"Sometimes in an older case, evidence does get moved," said Gary Bair, a criminal defense attorney and former head of criminal appeals for the state attorney general. "Because the defendant really has no control over that, it seems like the court is acknowledging that. It puts the initial burden on the prosecution for at least five or six steps."

The Baltimore City State's Attorney's Office will follow the court's ruling, said Margaret T. Burns, a spokeswoman for the office. Sharon R. Holback, appointed in June to direct the forensic sciences investigations unit, will head the search.

"It's certainly reasonable and understandable, given the new technology," said Burns. "If there's a need for additional staff, we are confident we can meet those challenges due to this new ruling."

Read the full story here

. (Baltimore Daily Record, 8/2/07)

More coverage –

Baltimore Sun: Detailed evidence search is called for

(8/2/07)

Complete text of the court’s opinion

.

Read about the case of

Alan Newton

in New York, who was told for ten years that his evidence could not be located until it was finally found – in the exact location it should have been all along.