- The Washington Times - Friday, August 3, 2007

ANNAPOLIS (AP) — Police and prosecutors must conduct thorough searches before declaring trial evidence to be permanently missing, Maryland’s highest court has ruled on a case in Baltimore, where the police department has had problems with storing crime evidence.

Authorities must scour storage rooms and even judges’ chambers to make sure that the evidence isn’t just sitting around somewhere they haven’t looked, the Court of Appeals said.

The court’s ruling involved a request for DNA testing of bloody clothing from a man convicted 33 years ago of killing his former boss in Baltimore.

A city Circuit Court judge had dismissed the request after a city police sergeant submitted an affidavit saying he had checked the department evidence records and found no mention of the old clothing.

“The Circuit Court erred in dismissing his petition for testing based on [the police sergeant’s] representation that because he checked the [Evidence Control Unit’s] database and forms on file, it was reasonable to conclude that the evidence no longer exists. Searching the ECU alone was insufficient,” Judge Irma S. Raker wrote in the unanimous ruling issued Wednesday.

“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 Raker concluded.

A prosecutor in the Baltimore State’s Attorney’s Office will now be responsible for ensuring that all possible storage locations are searched in the case and for all future requests for post-conviction DNA testing, a spokeswoman for the state’s attorney’s office said.

Douglas Scott Arey, who is now 58, was convicted 33 years ago in the murder of his former boss, Samuel Shapiro. A test of blood on Arey’s clothing matched it to Mr. Shapiro’s blood type. Arey disputed the test’s accuracy but was told that there was not enough blood left on the clothes for an independent analysis. He was sentenced to life in prison.

After the General Assembly passed legislation in 2001 that enables convicted felons to have evidence retested with newer DNA technology, Arey filed a petition. With new developments in technology, he reasoned that he could have even a tiny spot of blood reanalyzed, his attorney said.

Although the court ruling doesn’t guarantee that the evidence from the 1974 trial will be found, attorney John Kopolow said he was pleased with the decision on behalf of his client.

“It may be surprising that the evidence was kept there, and it’s a long time after that, but I think definitely the search has to be made,” he told the Baltimore Sun. “I think it will help the state to recognize that these petitions have to be taken seriously and that a serious search must be done for the evidence before they can conclude that the evidence does not exist.”

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