HEADLINE: FBI probe of prostitution case continues

BYLINE: KATHY JESSUP kjessup@kalamazoogazette.com 388-8590

SECTION: GENERAL NEWS

GRAND RAPIDS -- The FBI continues to investigate the Kalamazoo Department of Public Safety's handling of a controversial 2003 prostitution sting, Acting U.S. Attorney Charles Gross said. 

The pace of the four-month-old investigation has been affected by the fact that "primarily one agent has been working on it and it's not his only case," Gross said.

"I have been getting occasional status reports," said Gross, the Western District of Michigan's top federal attorney. "The FBI has not suggested to me that they are done with whatever it is they plan to do."

John King, supervisory agent in charge of the FBI's Grand Rapids office, declined to comment.

The investigation stems from a botched 2003 undercover prostitution sting in Texas Township.

Police reports indicate that a Kalamazoo-based FBI agent, police officers and attorneys may have been among the clients of a woman at the center of the sting. However, no arrests were ever made, an officer was disciplined for receiving oral sex during the undercover operation, evidence was mishandled, and the woman apparently reinstituted her Internet business site while she was reported to be in police protective custody.

Police also had evidence alleging that the woman may have been part of a statewide Internet prostitution operation. That information and her identity were turned over to the FBI shortly after the June 2003 bust, but federal agents took no action against her.

The FBI has confirmed that an FBI agent alleged to have been involved with the woman was allowed to resign. The agent, who has not been named, had worked for the FBI for less than two years and was still on probation.

Gross authorized the federal investigation in September after Kalamazoo City Manager Kenneth Collard requested a federal probe. Collard at the time said an independent investigation was necessary to restore public trust after the officer's sexual contact was disclosed, a Kalamazoo County District Court judge threatened to sue Public Safety "for implicating him in a cover-up" and the city found "mishandled and missing evidence" in the case.

Gross said he could not comment on a timeline for concluding the probe.

So will the public know when the federal investigation ends and its conclusions?

"We'll have to decide, in talking to the FBI, what, if anything, we can say when we're done," Gross said. "That's yet to be determined."

HEADLINE: Police officer gets to keep job after taking dirt bike home

BYLINE: MARK SCOLFORO, Associated Press Writer

DATELINE: HARRISBURG Pa.

SECTION: STATE AND REGIONAL

A northeastern Pennsylvania borough lost its effort to fire a police officer who took a dirt bike from evidence storage and used it for his own enjoyment for several years. 

Commonwealth Court on Friday agreed with a labor arbitrator who had reinstated Officer John P. Broda to the Wyoming Borough Police Department. But Broda was charged in December with theft, witness intimidation, official oppression and other offenses in the case, so it is uncertain if he will ever go back on patrol.

"I don't anticipate him returning at all," borough solicitor Stephen Menn said. "I think we're going to resolve paying him and he's going to be leaving or he's going to go on disability."

The motorcycle wound up in police custody 10 years ago after being abandoned during a chase by Broda. In 2001, Broda took it home and then to his brother-in-law's garage, where it remained until the mayor started asking questions about it three years ago.

Broda's brother-in-law, James Ostrowski, testified at an arbitration hearing that Broda instructed him to lie about it. He also said Broda did not tell him the motorcycle was evidence, according to the court opinion.

Wyoming Borough Council fired Broda in February 2006 for conduct unbecoming an officer.

Arbitrator Robert L. Kyler gave him his job back but with a 10-month unpaid suspension, agreeing with the police union that the department lacked a clear policy dealing with custody of evidence and that the internal investigation "was anything but full and fair."

"Everyone in the department knew Broda had the bike and Mayor (Michael) Podwika waited for two years and eleven months to do anything," Kyler wrote.

Broda, 37, acknowledged from the onset that he took the bike, but disputes that he did anything wrong, said his lawyer, Anthony M. Caputo.

"His position all along was he had authority to take it because it was abandoned property and it was no longer evidence," Caputo said.

Broda's supervisors gave at least tacit approval, Caputo said.

"It's our opinion you can't come in and fire an officer based upon what the prior administration authorized or at least, to a certain degree, approved of," Caputo said.

A Luzerne County judge upheld Kyler's decision, and the borough appealed, saying the decision was detrimental to the public's trust in its police force.

On the Net:

Opinion: http://www.courts.state.pa.us/OpPosting/CWealth/out/1335CD07 2-8 08. pdf

HEADLINE: MISLABELED EVIDENCE PROMPTS CHANGES;

WARRICK SHERIFF ADMITS MISTAKE

The Warrick County Sheriff's Office has revamped its evidence-collecting procedures after a "clerical error."

The error was discovered during a deposition in the case against Warrick County's former chief deputy treasurer Elaine Newton. 

Newton has been charged with 14 counts of not depositing public funds and 14 counts of theft, stemming from allegations she falsified records to steal more than $40,000 between December 2003 and November 2004.

In January, Sheriff Marvin Heilman wrote to Prosecutor Todd Corne saying evidence collected in the case was labeled January 2005 instead of March 2005. Heilman said about five trash bags of papers were collected by Sgt. Greg Webb from the treasurer's office at the beginning of the investigation. After two months, Webb submitted several pieces to detective Bryan Flowers to be placed in the evidence room. But when officers labeled them, it was for when the pieces were initially collected.

Because Webb had the materials in his possession under lock and key, they felt it was the appropriate thing to do, Heilman said.

"There's nothing malicious. We're not trying to lose evidence, create evidence or change evidence," Heilman said. "It's not like drugs or DNA evidence, things that could be altered or changed or manipulated in any way. They made the clerical error E They made the wrong decision to log it in as in January instead of March. There was no criminal motive to falsify a record or no malicious intent to harm the defendant."

Neither Webb nor Flowers were reprimanded or disciplined, Heilman said.

Heilman said he felt it was important to bring the error to Corne's attention because he is prosecuting the case.

"The chain of evidence is very important to establish any criminal case," Heilman said. "If that had come up as how we handle evidence, I wanted him to know that's all there was to it. I didn't want them to think we were doing anything on purpose to wrongfully state dates when evidence was collected. I wanted to be upfront and say this is the decision that they made and they were wrong."

Corne wrote to Newton's attorney, Anthony Long, and the Warrick County Bar Association. Corne also filed a petition with the Warrick County Circuit Court for the appointment of a special prosecuting attorney to investigate the situation.

Heilman said they have reviewed the department's policies and changed some of the paperwork for better documentation.

"I have gone back to reformat some of the forms we use as far as documenting the chain of custody," he said.

Newton's trial is scheduled to begin May 13.

HEADLINE: Former judge says missing evidence key to Frye's case

BYLINE: Kevin Vaughan, Rocky Mountain News

SECTION: NEWS; Pg. 10NEWS

Fair trial 'difficult to impossible' without it, he says

Missing fingerprints, photographs, audiotapes and other lost evidence severely hamper Duane Frye's ability to defend himself against charges that he bludgeoned his wife to death in 1973, a senior appeals court judge testified at a motions hearing Monday.

Peter H. Ney, who is retired from the Colorado Court of Appeals, spent more than two hours on the witness stand, testifying on the case against Duane Frye in the June 9, 1973, murder of his wife, Betty Frye, at their home in present-day Centennial. 

On point after point, Ney, an expert witness for the defense, found problems with the loss of evidence and the death of witnesses.

For example, he pointed to two missing audiotapes - one of which included a recording of a witness named Randy Peterson, who said he saw a young man in the backyard of the Frye home around the time of the murder.

"There's no way to duplicate that," Ney said. "There's no way for the defense to show the authenticity at the time that this took place, of Mr. Peterson's observations."

Duane Frye, now 82 and in failing health, was originally indicted in his wife's death 10 days after her body was discovered in the garage of the family's home. 

Initially, investigators suspected that she had interrupted a burglar, but detectives quickly concluded that the break-in was staged and questioned Duane Frye's version of his whereabouts that morning - including a surprise visit to Boulder to watch his son's karate lesson.

But in November 1973, prosecutors abruptly dismissed the charges after a now-dead private investigator found a witness and fingerprint evidence that threw into question the case against Frye.

He was indicted a second time in 2006, after his sister came forward to report that he had confessed to their mother that he killed his wife.

His attorneys, Gary Lozow and Lara Marks, are fighting to dismiss the indictment, asserting that Frye cannot get a fair trial.

Ney testified that "it would be extremely difficult or impossible in the face of this destruction of evidence, the unavailability of statements that were available years ago, that Mr. Frye would receive a fair trail."

Prosecutors, meanwhile, chipped away at the credibility of the now-dead investigator, James W. Blake, whose discovery of fingerprints and of Peterson laid the foundation to dismiss the charges.

Prosecutors have questioned Blake's expertise at the same time Frye's attorneys have pointed out that he was a decorated former New York police officer.

Morgan Smith worked with Blake in the Adams County public defender's office in the mid-1960s - and eventually fired him after he lost "confidence" in his abilities, he told the court Monday.

"It got to the point where I was doing a lot of the investigating myself at night and on the weekends because I just didn't have any confidence in him," Smith said.

INFOBOX

Case file

The crime: Betty Frye beaten to death June 9, 1973

The suspect: Duane Frye, Betty's husband

The history: Duane Frye was charged with murder in 1973, but the case was dropped after a private investigator found a conflicting witness. In 2006, a grand jury issued a new indictment, based in part on testimony from Frye's sister about an alleged confession to their mother and statements of other witnesses.

The problems: Numerous witnesses have died, others have memories that are not as clear as they once were, and the location of some pieces of evidence are not known.

The issue: Judge Valeria N. Spencer is considering whether to grant motions by Duane Frye's attorneys to dismiss the case based on the contention that he cannot get a fair trial, that no new evidence exists and that grand jurors were misled.

HEADLINE: Spotty records thwart probe 

BYLINE: Maria Cramer Globe Staff

SECTION: METRO; Pg. B1

Only 17 cases ID'd as tied to missing drugs

Law enforcement agencies investigating the widespread theft of drugs from a Boston police depository in Hyde Park have been hampered by a lack of accurate record-keeping in their probe of which criminal cases may have been compromised because of the missing evidence, officials said yesterday.

Prosecutors acknowledged the problem as defense lawyers prepared to send a letter to police and Suffolk District Attorney Daniel F. Conley requesting a list of the cases in which drugs cited as evidence went missing. The defense lawyers said they are concerned that some criminal convictions could be overturned if the drugs went missing or were tampered with around the time defendants were convicted. 

Boston police officials released an audit in January that found that hundreds of bags of cocaine, heroin, marijuana, and pills were missing from the depository. But the report does not cite which cases may have been affected, giving defense lawyers little information about whether their clients could have been wrongfully convicted, said Anne C. Goldbach, director of forensic services at the Committee for Public Counsel Services, which employs about 200 public defenders.

"We will make that request for the list of cases, because it seems to be the only way we can determine if any of the convictions are vulnerable or whether any injustice was done," Goldbach said. "People could have been convicted in situations where there were no drugs anymore."

Police said there are nearly 1,000 cases in which drugs cited as evidence went missing or were tampered with. But prosecutors have been able to identify only 17, said Conley's spokeswoman, Erika Gully-Santiago. Defense lawyers have contacted Conley's office about another case, which is under review.

The bulk of the cases that police identified lacked court docket numbers and defendants' birth dates, which prosecutors needed to track down the cases, she said.

"One of the root issues here was poor record-keeping in the drug depository, so the original list we received lacked crucial identifying information," Gully-Santiago said, adding that prosecutors expect police to turn over those details "within days."

"Once we have that information, District Attorney Conley intends to make this information available to any individuals affected to ensure that their cases are handled as justice and the law dictate," Gully-Santiago said. Police are aware of the lack of information, said Elaine Driscoll, spokeswoman for the Boston Police Department. "We're working really, really hard to get them what they need."

In January, Commissioner Edward F. Davis said that he would work with Conley to inform defense lawyers about the audit's results, which showed that many of the stolen drugs were replaced with other substances. Defense lawyers said that the tampering might have increased the weight of the substances that were introduced into court as evidence and might have led to a longer prison term for a defendant.

Yesterday, police estimated that it would be another six months until they can release details of the investigation into how the drugs went missing.

"Obviously, the police commissioner has a desire to get to the bottom of this case as quickly as possible," Driscoll said. "This is a very big case, and there is a significant amount of evidence to process."

Police, who have acknowledged they do not know when the drugs were removed, have said that none of the drug cases in which evidence was missing are open and that none of the defendants who were imprisoned remain incarcerated.

They say the drugs cited as evidence disappeared over a period of 16 years, ending in 2006.

Randy Chapman, president of the Massachusetts Association of Criminal Defense Lawyers, said the loss of evidence is disturbing, because it compromises the whole criminal case.

"It has perverted the entire process," he said. In a criminal case, he said, "part of what has to happen is the government has a responsibility to show that these were the drugs that were taken and accounted for every step of the way. If somewhere along the line, the chain of custody was compromised, it affects the quality of the cases."

If someone were convicted in a drug case that was later overturned because of evidence that was missing, Chapman said, it could help clear the person's record and make getting a job or a student loan much easier.

John Salsberg, cochairman of the board of directors for Suffolk Lawyers for Justice, said the audit should serve as a wake-up call for defense lawyers, who rarely analyze drug evidence confiscated by police when their client is pleading guilty. "I think it means that in every case it's incumbent upon the lawyer to physically examine the drugs and not just accept what's in a police report or a drug certification," Salsberg said.

"It really is up to the lawyer to be inquisitive. Defendants ... rarely know what to do. They take the advice of their attorney."

Maria Cramer can be reached at mcramer@globe.com