By Mike McPhate
Falsely accused rapists Alan Newton and Scott Fappiano last week traded looks of disbelief as an NYPD chief told lawmakers that the department is doing its job handling evidence.
After police lost crime scene evidence, Fappaino and Newton spent years in prison for crimes they didn’t commit. They were both recently exonerated by DNA tests and released.
Fappiano, just four days out of prison and dressed in a new Gap shirt and white Nikes, could barely sit still. When Assistant Chief Robert Giannelli described the department’s evidence tracking system as “orderly”, Fappiano slapped his forehead in shock and whispered, “Oh, man.”
Gianelli was briefing assembly members last week investigating alleged mishandling of evidence. The cases of Newton and Fappiano had brought attention to what legal rights groups call the NYPD’s “black hole” of evidence storage.
Newton walked out of the briefing in disgust. “Police are gonna try to cover their tracks, and minimize their blame,” he told reporters in the hallway.
He has reason to distrust authorities. Newton, 46, waited more than a decade for evidence from his case to be found. Convicted on faulty eyewitness testimony of the rape and knifing of a 25-year-old woman, he first asked that his DNA be compared to a semen sample from the crime scene in 1994, around the time that the science came into wide use. After three failed requests, a Bronx prosecutor made a last ditch try on his behalf, asking for another search last year.
The evidence was found in its original bin; Newton, who all along held steadfast to his innocence, even rejecting sex offender counseling that offered a chance of early parole, was exonerated in July after 22 years behind bars.
It’s not uncommon for police to lose evidence: The legal group the Innocence Project, which has helped to exonerate 184 prisoners, said it’s closed between 30 and 35 cases in New York state simply because crime scene evidence couldn’t be unearthed from storage. The release earlier this month of 45-year-old Fappiano, who was told his evidence was lost in 2002, brought renewed attention to the injustice that can be spawned by the NYPD’s aging evidence tracking system.
Fappiano spent 21 years in prison, accused of raping a Brooklyn cop’s wife. He would likely remain in jail today if the Innocence Project, trying a long shot, hadn’t reached out to a private lab which had been contracted earlier to test samples from his case. They found a swatch of fabric from the victim’s sweatpants containing DNA that excluded him as the rapist.
In a day and age when, “they’re sending people to Jupiter,” said Fappiano, “it’s ludicrous this stuff can’t be inventoried.”
The problem is simply one of volume, police officials say. The bulk of post-conviction evidence in New York City is stored at the Pearson Place Warehouse facility in Queens. Chief Giannelli defended the department’s system of handwritten vouchers and clerical receipts, but admitted, handling evidence for a city so large, items sometimes get misplaced.
Following Newton’s release, Police Commissioner Raymond Kelly formed a working group to evaluate the department’s handling of DNA evidence. Officials plan to streamline the system and computerize its paper-based cataloguing system.
Peter Neufeld, co-director of the Innocence Project, told lawmakers last week that any overhaul of evidence tracking systems should not be handled by individual police departments, but centralized under the state’s Commission on Forensic Science. With procedures varying among departments throughout the state, a central database would allow easy access to old evidence, and create what he called “a goldmine of potential justice.”
Neufeld also called on legislators to require the preservation of old evidence. In some exoneration cases, officers have destroyed biological samples that were later sought for DNA testing.
In the pre-DNA era, custodians routinely discarded evidence after appeals were exhausted in order to save space. While many states have enacted laws that require police to save biological evidence, of which only tiny samples are needed, New York is among 21 states that have failed to follow suit, according to Cynthia Jones, a law professor at American University who performed a recent survey of evidence preservation laws.
Jones said the criminal justice system has been slow to embrace exoneration efforts because they challenge the system’s reliability and often reflect poorly on cops and prosecutors. She added, “There is a strongly held belief in the criminal justice system in the finality of judgment, that at some point it is just over. This whole innocence movement is upsetting that.”
A Right to Evidence?
Some defense advocates want legislators to allow inmates easier access to the evidence used to convict them. Currently, evidence from closed cases can only be retrieved for DNA testing with the request of a prosecutor or by judicial order.
Jones said prosecutors sometimes make an arbitrary decision not to pursue DNA testing. “What prosecutors say is, ‘You know what? This case is over. We’re not dredging this up and re-living it for the victim’,” she said.
But police and prosecutors say that frivolous requests for DNA tests could burden the system. “Evidence can’t just be handed out willy nilly,” said Michael Bongiorno, head of the New York State District Attorneys Association.
Chief Giannelli said if the NYPD responded to every letter from an inmate “that would be all that we do.” Currently the department is working on four requests for evidence, he said.
The exonerated inmate Fappiano said, by his math no effort is too large to secure the release of innocent prisoners. “If you save one person it’s worth it,” he said. “Go hire some more people.”