Exculpatory Evidence

For Todd's family and friends, the hearing of oral arguments was a stressful occasion. Our attorney had but 15 minutes to address the court. Most of that time was taken up with questions from the three-judge panel.

The questions centered upon an evidence issue: the loss of deposits on what prosecutors alleged to be the knife used to kill Anthony Madrill.

Previous posts (Altered Evidence and Altered Evidence: How the State Explains the alteration of evidence in its possession) have touched on this evidence issue.

Intuition tells most of us that relying upon evidence that has been altered is a bad idea--especially when the claims derived from the altered evidence are at odds with all other physical evidence.

Legal consideration of this point, however, is more complex.

The alteration of the knife in this case involved the loss of a deposit on the knife widely accepted to have been tire debris.

To determine if that loss unfairly prejudiced Todd's defense, the court uses a three-part test:

1. Was the state responsible for the loss?


2. Did the lost or destroyed evidence have an exculpatory value that was apparent at the time of its loss?


3. Is comparable evidence unavailable to the defendant?

Questions from the judges at the oral argument focused on the second part of that test: did the material have an exculpatory value that was apparent at the time of its loss?

The judgment of the police regarding the knife's exculpatory value can be seen by examining their statements and actions in light of the context they understood at the time the evidence was received by them.

Getting to the context is simplified because it was very early in the investigation—their data-field was pretty limited. A look at the early timeline reveals a context where the deposit on the knife was especially significant.

The knife was retrieved from Todd on the afternoon of November 20, 2004. The investigating officers' question at that time had to be if the knife was the murder weapon. Earlier that morning Det Frady had interviewed Charles Schwartz, an interview that clearly points to Brad Orgill as the person who fought with Anthony Madril. Schwartz tells them:

• The only people physically fighting are Madril and the person later identified to be Orgill. The person later identified as Todd is not seen around Madril. Schwartz explains that Todd was on the passenger side of the vehicle while Madril and Orgill were on the other side and about 20 feet up the road.


• The fight between Orgill and Madril looked pretty even to Schwartz. Todd is the person who punctured the right-rear tire on his truck; Orgill is the person Anthony is enthusiastically fighting in front of and to the left of his truck.


• He (Schwartz) agrees with Frady’s hypothesis that “there were two knives”—one used to puncture the tire, the other used to stab Madril.

Frady conducted a second interview with Schwartz on the morning of 22 November. It’s clear from the 22 November interview with Schwartz that Frady is testing the two-knife hypothesis when he asks Schwartz repeatedly and in detail to go over the sequencing of the fight between Orgill and Madril and the timing of the puncturing of the tire.

• Schwartz confirms what he’d reported in his first interview.


• Schwartz explains very clearly and under detailed questioning that Madril fought hard with Orgill at the same time that the tire was punctured.

Frady’s 22 November interview with Schwartz occurred at 1030 a.m. An hour and half later, Det Vanderpool goes to the evidence room and inspects the pockets of the leather jacket Todd had worn. Specifically, he is looking for anything that “appeared to be blood.” The reason for this inspection is clear: blood stains in the pocket, where the knife had been stored, would connect the knife to the stabbing. However, the pockets did not have any blood stains.

Against this background Richer and Nohr discussed the best way of preserving the black deposit on the knife.

What we see within the context of these actions by the police is an attempt either to rule the knife in or to rule it out as the murder weapon. The investigation of transfer between objects at a crime scene is an important part of every detective’s training. All investigative officers (and even lay observers in this case) would recognize the importance of the deposits on what is purported to be the murder weapon. Anyone would recognize that in considering the “two-knife” hypothesis, where one knife is used to stab a person and another used to puncture a tire, that investigation of deposits of blood and “black debris” would be central to determining how a particular knife had been used. Clearly, deposits of blood would have been inculpatory while deposits of tire material would have been exculpatory.

Actually, any deposits would be exculpatory because they would indicate that the knife had not been scrubbed by Todd—guilty behavior that the prosecutor and state’s witnesses suggested at least three times during the trial.