By the time Samander Dabas went to trial for murder in 2007 — based in part on self-incriminating statements to police — the state Supreme Court had made clear its disapproval of interrogators destroying their notes. That led an appeals court to reverse his conviction,
But not until 2011 did the Supreme Court formally mandate that contemporaneously taken notes be retained and be made available to the defense for review.
On Monday, the Middlesex County Prosecutor’s Office asked the court to reinstate the conviction and 30-year sentence in State v. Dabas, A-109-11, saying its detective was acting in accordance with normal police practice at the time.
Dabas ran over his 20-year-old wife, Rena, on Aug. 24, 2004, three weeks after she joined him in the U.S. following an arranged marriage in their native India. He was visibly intoxicated after the incident. Detective John Dando interviewed him for about two hours before a formal interrogation on tape, during which he implicated himself.
Dando destroyed the handwritten notes from his pre-interview after he prepared his formal report and after a grand jury had indicted Dabas on a charge of knowing and purposeful murder.
At trial, Middlesex County Superior Court Judge Dennis Nieves refused defense counsel’s request for the jury to be given an adverse-inference charge based on Dando’s actions.
Reversing, Appellate Division Judges Marie Lihotz and Alexander Waugh Jr. said the requested instruction could have led the jury to accept Dabas’ assertions that he did not act knowingly or purposefully, perhaps leading to conviction on a lesser charge.
The court had addressed the destruction of notes twice before Dabas went to trial in State v. Cook, 179 N.J. 533 (2004), and State v. Branch, 182 N.J. 338 (2005). Destroying notes was a common practice, "but one that we disapprove of," the court said in Cook. In Branch, the court said: "We register our displeasure that police officers engage in the seemingly routine practice of destroying their contemporaneous notes of witness interviews after the preparation of formal reports."
But it was not until the ruling in State v. W.B., 205 N.J. 588 (2011), that the court said police officers "may not" destroy their notes. If they do destroy notes, the cure is the adverse inference ruling, the court said.
Assistant Middlesex County Prosecutor Nancy Hulett asked the court to overturn the Appellate Division ruling, saying Dando’s actions did not warrant the granting of a new trial.
"The [detective] who took the statement … destroyed his notes," said Hulett. "That was done in accordance with police practice at that time. There was no reason to give the adverse inference charge based on the law at the time."
Justice Barry Albin, who early in his career was an assistant prosecutor in Middlesex County, has been a vocal critic of the practice of destroying notes. He asked Hulett what her office did after the court’s ruling in Cook.
"The state and the police did not consider that a definitive ruling by the court" regarding the retention of notes, she said.
Then came Albin’s opinion in Branch. "What did your office do?" he asked.
"We still did not construe that to … require police to hold their notes," she said, adding that neither of those rulings amounted to a mandate to stop destroying notes.
Albin said Dando did not destroy his notes until after the indictment was returned. "Those notes were in your possession and control. You had an obligation to turn them over."
"No we did not," Hulett replied. "Our interpretation of the discovery rule at that time did not require us to retain the notes."
Justice Anne Patterson noted that the court in W.B. gave law enforcement 30 days to comply with the new rule.
"Yes, because at that time the common practice was to destroy notes," Hulett said.
Albin said the court had been arguing for years against destroying notes.
Nevertheless, W.B. imposed a new rule, Hulett said.
"The defendant could have asked for the notes to be preserved," she said. "An adverse inference charge here would be totally unfair."
Patterson asked if the general assumption was that a case would eventually come up that would mandate the retention of notes. Hulett said that was indeed the case.
"I find that position interesting," said Justice Jaynee LaVecchia.
Before W.B., "there was no ruling of the court that said we had to retain notes," Hulett said.
Dabas’ attorney, Assistant Deputy Public Defender Marcia Blum, said the Appellate Division was right to void Dabas’ conviction.
Dando’s notes, she said, should have been preserved and the fact that he destroyed them in the face of the rulings in Cook and Branch amounted to a discovery violation that warranted the adverse inference charge, Blum said.
"The defendant is prejudiced when evidence is not preserved," she said.
Chief Justice Stuart Rabner, like Patterson, pointed out that the court in W.B. gave law enforcement 30 days to comply with the new rule.
Blum said the adverse inference charge had been available before then, so long as it was requested by the defense before the jury was charged.
"What was the state of the law" before W.B., Patterson asked.
"Trial judges always have had the ability to give the appropriate charge," Blum replied. "It was an abuse of discretion not to give it."