Calling for an investigation

Yesterday we filed an allegation of negligence/misconduct concerning the handling of crucial physical evidence from Todd’s case. The technical name for “intentional or negligent withholding, hiding, alteration or destruction of evidence relevant to a legal proceeding” is spoliation. And spoliation is exactly what happened to the knife that prosecutors alleged to have been the murder weapon. Lead prosecutor Jeff Lindsey said the knife was “crucial evidence in the People’s case.” The spoliation concerned deposits that had been noted on the knife, when it was originally examined, but which later disappeared.

The integrity of this “crucial evidence” has been cast into doubt both by the presiding trial judge Gil Martinez and by Patricia Van Horn, a deputy Attorney General for Colorado. After viewing photos showing the changed condition of the knife, Martinez said, “somebody did something wrong, Counsel, because this knife should have been taken down to the CBI in the same condition as this photograph and apparently it wasn't, so somebody somewhere dropped the ball.” Initially, Van Horn denied any responsibility by the state, but during oral arguments in the case, she conceded of the evidence that the state was not going to argue “that this wasn’t destroyed by state action….we know it was in the state’s custody….”

The evidence was crucial because it was the only physical evidence connecting Todd to the victim Anthony Madril. None of the six witnesses had seen Newmiller confronting Madril, but all had seen Madril in a fierce fight with another man, prosecution witness Brad Orgill. Entering the fight with Orgill enthusiastically, Madril shouted, “It’s on. Let’s go.” Madril emerged from the fight bleeding from his chest and saying, “I just got stabbed.” Orgill’s clothing contained significant quantities of blood found to belong the victim. Todd’s clothing had no blood from the victim.

The prosecution’s theory of the crime was that Todd, unseen by any of six witnesses, stabbed Madril in the chest, breaching both ventricles, and then went on to have a non-violent confrontation with one of the victim’s friends. Meanwhile, according to the prosecution’s theory, Madril, his heart now slashed, went on to fight with Orgill. Todd says that he was angry after being punched by Madril’s friend Chisum Lopez and in retaliation used the knife (an aging folding knife he’d used early in the day to open boxes at work) to puncture the right rear tire of the pickup truck Lopez had ridden.

It’s undisputed that the puncturing of the tire occurred after Madril was engaged in the fight with Orgill. Debris noted on the knife and described by Detectives Don Richer and Jeff Nohr was consistent with what one would expect to have come from the punctured tire. What was in dispute was how a small quantity of the victim’s blood—not noted until the knife arrived at the CBI lab—came to be on the knife. The defense argued that the blood had to have been deposited sometime after Madril’s confrontation with Orgill. Other physical evidence supporting that position includes the absence of Madril’s blood on Todd’s clothing, the absence of blood spatters on the ground in the area where Todd was known to be standing, and the absence of blood in the puncture of the tire. Further, there were a number of opportunities for blood transfer to the knife after the confrontation, including the possibility of cross-contamination after the evidence was received. Had the knife been preserved in its original condition, it could have been subjected to a more comprehensive and credible analysis.

Early in the investigation of the stabbing, two members of the El Paso County Sheriff’s office, Detectives Don Richer and Jeffrey Nohr examined the knife closely. Both detectives noted that the knife contained various forms of debris and material. Neither detective noted the presence of any blood on the knife. Detective Richer testified that when he examined evidence, if he observed anything that looked like blood, he would so note it.

After the knife had been delivered into the possession of the CBI, Agent Rebecca Strub examined it and has since testified that the knife did not contain any debris or material as Richer and Nohr had reported. She did, however, note a minute amount of blood on the handle of the knife and around the logo on the blade of the knife. Photographs of the knife taken shortly after it was received by the El Paso County Sheriff’s Office, and reviewed by Judge Martinez, show the debris on the knife but do not reveal the existence of any blood on the knife. Testimony by a prosecution witness, Brad Orgill, who viewed the knife prior to its being received into evidence by the El Paso County Sheriff’s Office, corroborates the existence of debris and the absence of blood on the knife.

So far, no one has explained the spoliation that occurred. But that may change as the result of the allegation that we sent to the Colorado Attorney, the local District Attorney, and Internal Affairs at the Colorado Springs Police Department. These agencies are identified as having oversight of the facility where the knife had been stored and of the Colorado Bureau of Investigation’s crime lab where the knife had been sent for testing. Because these forensic facilities received federal funding under the Paul Coverdell Forensic Science Improvement Grant Program, federal law requires an investigation.

The mishandling of crucial evidence in Todd’s case is not an isolated example of problems in the application of forensic science. The Innocence Project, which provided advice in drafting the allegation we’ve filed, reports that in “more than 50% of DNA exonerations, unvalidated or improper forensic science contributed to the wrongful conviction.” It’s not like CSI. A recent report by the National Academy of Science calls for a major overhaul of forensic science in America, to include “removing all public forensic laboratories and facilities from the administrative control of law enforcement agencies or prosecutors’ offices.” We wonder if the condition of the knife used as evidence against Todd would have changed had it been in possession of a neutral agency charged with finding the truth rather than simply building a case for conviction.

The full Coverdell allegation, which includes additional details about the mishandling of the knife, including its being “lost” for three months in the evidence room, is available online at http://bearingfalsewitness.com/CoverdellAllegation.pdf.

A video about the evidence in question is available at http://www.youtube.com/watch?v=59F9dLWnlxo. It includes scenes from oral arguments in our appeal to include Van Horn’s admission of the state’s failure to preserve the evidence in its original condition.