Lessons Not Learned - The Innocence Project

Court’s Mid-trial Loss of Evidence
RePoRT on ConVICTIon oF JeFFReY DesKoVIC
OTHER ERRORS
Shortly before summations, the parties realized that four prosecution exhibits, Ex. 37,
Correa’s shoes; Ex. 35, her jeans, Ex. 36, a paper bag containing her underwear and Ex. 31, her
white bra, had been lost. 119 The prosecutor, who made the relevant record, explained that, during
the trial, the exhibits were stored in the courtroom in a black plastic garbage bag either near the
bench, the stenographer’s chair or the witness box. 120 At some point during the Thanksgiving
recess, the garbage bag, as well as the exhibits it contained, was inadvertently discarded by a
substitute cleaning crew. 121 Counsel moved for a mistrial, for preclusion of all evidence relating
to the lost exhibits or for an adverse inference charge. 122 The court denied those applications. 123
At the outset, it is important to emphasize that there is no evidence of bad faith on
anyone’s part in connection with the loss of these exhibits. For that reason, the court appeared
on solid legal ground when it denied counsel’s motion for a mistrial and other relief. That said,
there was absolutely no excuse for the negligent failure to safeguard the evidence in this case.
Surely, court personnel should have anticipated the risk that the cleaning crew would throw out
a black garbage bag left unsecured in the courtroom. That the courtroom doors were themselves
locked to the public and other intruders is thus simply beside the point. If trial evidence is to be
stored in the courtroom, it must be stored in a secure place – either in a locked drawer or cabinet.
That plainly was not done here. Lax procedures such as these would have been unacceptable in a
misdemeanor trial. In a case of this magnitude, they were beyond the pale.
Thankfully, the lost evidence did not include the DNA samples taken from Correa’s body.
Had that evidence disappeared, the tragedy of this case would have been made incalculably
worse. Even as it was, however, Deskovic was potentially prejudiced. In his January 25 th
statement, Deskovic had purportedly asserted that he ripped off Correa’s bra during the attack. 124
Before the loss of the evidence, defense counsel had planned to argue that the nature of the bra –
a pullover, with no snaps or clips – made this claim unlikely, thus casting doubt on the veracity
of the entire confession. 125 Without the physical exhibit available to illustrate his claim, counsel
119 See Colloquy, Trial Tr. at 1341-61.
120 See Colloquy, Trial Tr. at 1342, 1344.
121 See Colloquy, Trial Tr. at 1407-08.
122 See Colloquy, Trial Tr. at 1359-61, 1393-94.
123 See Colloquy, Trial Tr. at 1393-94.
124 See Testimony of Det. McIntyre, Trial Tr. at 1185.
125 See Colloquy, Trial Tr. at 1398-1403.
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