A murder trial underway in Juneau came to a standstill Monday when the defense attorney informed the judge that Alaska State Troopers have destroyed most of the physical evidence in the 17-year-old case, which was “cold” for about a decade and a half before it was re-opened in 2009.
Assistant Public Defender Eric Hedland, who is representing Robert D. Kowalski, a 53-year-old Washington man accused of fatally shooting his girlfriend at a Yakutat lodge in 1996, said prosecutors never told him that the audio cassette tapes and other evidence had been destroyed. Hedland guessed troopers probably burned the items in evidence because they did not think the case would ever be brought to court. The Juneau District Attorney at the time had declined to press charges against Kowalski, who claimed the shooting of 39-year-old Sandra M. Perry was an accident.
Kowalski is now facing two counts of murder in connection to Perry’s death at Yakutat’s Glacier Bear Lodge. The state of Alaska re-opened the case after Kowalski was convicted of homicide in 2008 for killing his girlfriend in Montana in a similar manner.
Hedland said in the days leading up to trial, which began last week with jury selection, he found a piece of paper buried in one of the voluminous discovery packets that confirmed his suspicions: Troopers destroyed much of the physical evidence in April 1998. That evidence includes all of the old-fashioned mini-cassette tapes that contained multiple audio recordings of interviews Kowalski gave to law enforcement at the time of the shooting as well as recorded statements from witnesses, VHS videotape of the crime scene and items from the crime scene such as a fragment of the slug used in the shooting, Perry’s bloodied clothing and bed spread, Kowalski’s clothing, a cigarette lighter, Zoloft and a marijuana pipe.
The attorney handed the judge the document — an Alaska State Trooper evidence log of all the destroyed items — and moved to exclude any testimony and evidence about the destroyed items at trial, citing the fact that his client has no ability to confront the evidence against him.
“It’s a bit of a bombshell,” Hedland said in the courtroom during arguments held outside the presence of the jury, acknowledging that these matters are usually taken up before trial.
In response, prosecutor James Fayette denounced the defense attorney for participating in “gamesmanship and tactics” to derail the state’s case. Fayette confirmed that troopers destroyed much of the evidence in 1998 for case management, storage and archiving management purposes, but that some transcripts still exist including one of Kowalski’s interviews from the day of the shooting.
Fayette, an assistant attorney general with the Anchorage-based Office of Special Prosecutions and Appeals, accused Hedland of “twisting the facts.” He said the state did not “bury” the document but disclosed it in discovery that was given to the defense in March 2012.
“It’s not some big military secret,” he quipped.
Fayette said Hedland should have known about this since it was referenced at the grand jury proceedings in September 2011, and that he should have taken up the issue before the trial began. He said evidence rules bar Hedland from bringing the matter up during trial.
Hedland shot back that he found the evidence log document buried in the middle of black and white photographs inside a 810-page PDF document. He added that neither troopers nor prosecutors asserted or acknowledged the loss of the evidence in narrative form.
Judge Louis Menendez complained too that Hedland was “dropping” this on the court mid-trial but agreed to hear arguments about how to proceed on Tuesday morning. When the government destroys or loses evidence in its possession, state statutes allow judges to impose sanctions, which can range from giving the jury special instructions on how to view the evidence to suppressing testimony about evidence.
Menendez denied Hedland’s motion to suppress for the time being and allowed the Yakutat police sergeant who was on the stand to continue testifying. The judge did, however, issue an ad hoc advisement to the jury that they may hear more about the destroyed evidence later at trial.
• Contact reporter Emily Russo Miller at 523-2263 or email@example.com.