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Even when police destroy possible fingerprint evidence that might have helped prove a defendant innocent, the charges should not be dismissed unless the defendant can show bad faith on the part of police, a federal judge has ruled. The ruling by federal Judge Anita B. Brody of the U.S. District Court for the Eastern District of Pennsylvania in United States v. Seibart means that Michael Seibart must stand trial on charges of possessing a gun as a felon with nothing more than his own word to persuade the jury that the gun found under his car seat belonged to another man arrested the same night. But while she ruled in favor of the government, Brody also used the opinion to wag a finger at the Philadelphia Police Department for policies that, she said, were careless and unclear. “The policies for evidence gathering and preservation presently in place at the PPD seem to insure that firearms taken from all but the most sensitive crime scenes will have been handled carelessly by any number of people,” Brody wrote. For Assistant Federal Defender Edson Bostic, the ruling is both a loss for one client and a possible victory for countless others since it could lead to systemic changes. After holding extensive hearings on the issue between May 2000 and January 2001, Brody found that Seibart’s predicament is the result of several ill-conceived policies: � Street officers are not expected to disarm a recovered weapon in a manner that minimizes interference with fingerprint evidence. � Officers do not transport firearms from a crime scene in packaging that minimizes interference with surface evidence. � Unless explicitly told to guard a weapon for prints, laboratory technicians and even detectives will go about their examinations of a firearm in a manner that guarantees spoilage of evidence. Although she found that none of the policies violated Seibart’s constitutional due process rights, Brody strongly suggested that the policies should be changed and hinted that future cases like Seibart’s might not be tolerated by the courts now that the department has been warned. “I will accept the government’s contention that the Philadelphia police routinely handle firearms in ways that destroy evidence on the surfaces of firearms. That reality, however, should not absolve them of responsibility for assessing the apparent exculpatory value of what they destroy, and for putting into place guidelines that insure the preservation of evidence with potential exculpatory value,” Brody wrote. “The issuance of this opinion and its findings, however, may prompt the PPD to re-examine its policies and procedures for handling firearms. Particularly in cases adopted by the United States Attorney to take advantage of the more certain and severe sentencing scheme available through the federal system, the government must insure that adequate police work supports every indictment,” she wrote. And on the basis of testimony from a former FBI agent about that agency’s policies of protecting possible fingerprints on any gun it confiscates, Brody found that the Philadelphia police could easily improve their policies. “The FBI trains its agents to handle firearms in a way that minimizes interference with potential fingerprint evidence,” Brody wrote. “Limited resources may constrain the ability of the PPD to process every recovered firearm with such care. However, [former agent Robert] Hazen’s testimony indicated that simple measures are possible if the department chooses to issue guidelines that protect firearm evidence gathered under particularly sensitive circumstances.” But Brody found that Seibart fell short of proving that the destruction of possibly exculpatory evidence had violated his constitutional rights because of a pair of opinions from the U.S. Supreme Court in the 1980s — California v. Trombetta and Arizona v. Youngblood — that together established a heavy burden on the part of the defendant to show bad faith. “To prevail on his motion, Seibart must show that the officers actually knew, at the time the firearm was mishandled, that they were destroying potentially exculpatory evidence,” Brody wrote. To show bad faith, Brody said, Seibart would have to show that police “made a conscious effort to harm him or violate his rights.” Seibart fell “far short of making such a showing,” she found. “While the investigative procedures in this case might be described as negligent, the conduct of the officers in no way demonstrates bad faith of the kind required by Trombetta and Youngblood.” Most of Brody’s 22-page opinion is devoted to an extensive discussion of the facts of Seibart’s case and the investigative policies of the police department in handling confiscated weapons. Originally charged by the Philadelphia district attorney’s office, Seibart’s case was “adopted” by the U.S. Attorney’s Office as part of “Operation Cease Fire,” a program designed to funnel gun-carrying criminals into the federal system, where sentences are much stiffer. On May 7, 1999, police officers Brian Boos and John Erickson received a radio call reporting drug sales on a street corner by four black men in a white Ford Escort. Within minutes, the officers arrived and saw a white Ford Escort with two black males in the front seat. Seibart was in the driver’s seat and Aaron Carson was in the passenger seat. As he approached the car, Boos detected the odor of marijuana and saw a plastic bag on Seibart’s lap that appeared to be marijuana. When Boos asked for a driver’s license and vehicle registration, Seibart presented neither. And when he ordered Seibart to step from the car, the bag of marijuana fell to the ground. As Seibart was being placed under arrest, Carson got out of the car and fled, and Erickson gave chase. Seibart then told Boos: “He’s got a gun. That’s why he’s running.” But Seibart then began resisting arrest and, after a scuffle that lasted nearly five minutes, was handcuffed nearly a block away from the car. After Seibart was placed in a patrol car, Boos returned to the Ford Escort, where he found a semiautomatic pistol under the driver’s seat. For safety reasons, he unloaded 11 rounds from the gun’s chamber and magazine clip. Brody found that Boos did not wear gloves or take any special precautions while handling the gun because he had not been trained to take such precautions when recovering firearms from a crime scene. The opinion tracks how the gun was handled by the police department over the next few days, leading up to the moment when Officer Ernest Bottomer of the department’s Firearms Identification Unit washed it by holding it over a sink, spraying it with isopropyl alcohol, and rubbing the surface of the gun clean with a towel. Bottomer testified that he doesn’t have the authority to conduct a fingerprint test unless it is ordered and the gun is clearly marked as having been protected from contamination. Brody heard testimony from every one of the officers involved in handling the gun and noted in the opinion that she found each one credible. But despite believing them, Brody suggested in the final pages of her opinion that she was left with more questions than answers. “Should the PPD instruct patrol officers like Boos and Erickson to take special precautions with firearm evidence not found on the suspect’s person?” she wrote. When Boos found the gun where Seibart had been sitting just minutes earlier, she said, he “drew the reasonable conclusion that evidence on the gun would, if anything, tend to inculpate Seibart.” But Brody suggested that Boos shouldn’t have been so quick to assume that the gun was surely Seibart’s since it was “recovered from a car left open and unattended for five minutes” and Seibart had told Boos that the other man in the car was carrying a weapon. “Should such circumstances at a crime scene trigger heightened vigilance in evidence gathering? Should the department teach patrol officers to routinely handle and transport a firearm in ways that protect the integrity of possible evidence on the surface of that firearm?” Brody wrote. Continuing with more questions, Brody asked: “Should the PPD establish guidelines for the investigators who assess the potential value of evidence taken from a crime scene? … Should the PPD grant examiners in the Firearms Identification Unit some authority to order fingerprint or blood analysis, or establish examination procedures that protect the integrity of surface evidence for later analysis?” With “clearer guidelines,” Brody said, detectives “might have realized the possible value of the firearm evidence in the Seibart case and taken steps to preserve it.” The prosecutors on the case are Assistant U.S. Attorney J. Huntley Palmer and Special Assistant U.S. Attorney Carol Meehan Sweeney.

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