ROCKLAND, Maine — The district attorney’s office and sheriff’s office in Knox County are at odds over why key evidence was not available for the trial of a lobsterman accused of firing a rifle at another fisherman.
The lack of that evidence played a role, although the prosecutor said it was not the only reason, in a decision to offer a deal that reduced the charges from felonies to misdemeanors.
James R. Simmons was sentenced Monday in Knox County Superior Court to 364 days in jail with all but 45 days suspended for criminal threatening and reckless conduct. He had originally been charged with more serious charges of criminal threatening with a dangerous weapon and reckless conduct with a dangerous weapon.
The victim in the case objected to the reduction although initially he had accepted that the deal should be made. But before the sentencing, the victim changed his mind and argued against the agreement because he learned it would leave Simmons without a record as a felon.
A family member of Simmons said Monday evening after the sentencing had occurred that the prosecutor said one of the reasons he was going ahead with the deal was because some key evidence had been lost, including a video from a surveillance camera at Wallace’s Lobster Wharf in Friendship where the shooting allegedly occurred on Dec. 4.
Assistant District Attorney Christopher Fernald said Thursday that the evidence was not lost but was never turned over to the district attorney’s office by the sheriff’s office. He said he made several requests — both by telephone and email — asking that both the surveillance video and a ballistics report on a shell casing found under the wharf be provided to him. The shell casing matched the rifle seized from Simmons, Fernald said.
Fernald said the case would have been stronger with the evidence.
The evidence was not presented by the time that a jury was to be selected and that is when he met with the victim and decided to offer the reduced charges.
Knox County Sheriff Donna Dennison, however, disputes Fernald’s account of what happened with the evidence.
Dennison said that she was told by her officer that the ballistics report was brought to the district attorney’s office on more than one occasion and that it apparently got lost there. She said she believes the video also was presented to the district attorney’s office.
The deputy who investigated the case could not immediately be reached for comment on Thursday.
Dennison said she would take steps to make sure that deputies note when they leave evidence and who it is left with so this type of problem does not occur again.
According to an affidavit filed by Deputy James Moore in December, the victim said he arrived at Wallace’s Lobster Wharf on Dec. 4 and saw James Simmons. The victim said Simmons ran back to his truck, came out with a rifle and fired at him. Simmons also yelled to the man that he would soon kill him, according to the affidavit.
The affidavit also described how the video from the surveillance camera at the wharf showed a vehicle arriving and then Simmons going to his vehicle and “removing what appeared to be a weapon.” He then walks in the direction where the other vehicle had arrived and several minutes later, Simmons is seen placing the weapon back into his vehicle, the document states.
The victim was not struck. The victim claimed that Simmons accused him of cutting his lobster traps, a claim the victim denied.
Fernald said that the lack of that evidence was not the only reason for the decision to reach an agreement with the defense in exchange for guilty pleas. District Attorney Geoffrey Rushlau said that there would have been evidence of bad blood between the two men.
Defense attorney Steven Peterson said at Monday’s hearing that this would definitely have been a case of self defense if the matter had gone to trial.
The district attorney said that there are issues across the state, to varying degrees, of evidence not being turned over to prosecutors by police departments. He said there is more evidence collected now than in the past with the addition of digital audio and video recordings and videos from cruisers.
“It’s a continuous process of education,” Rushlau said about getting all evidence turned over to his office.
He said while he would not classify the failure to get the evidence in the Simmons case as the worst instance, it did rank in the upper echelon of cases.
“Whenever there is a threat with a weapon, we certainly find it troubling,” Rushlau said, referring to the significance of the case.
“Assistant District Attorney Christopher Fernald said Thursday that the
evidence was not lost but was never turned over to the district
attorney’s office by the sheriff’s office.”
It never ceases to amaze me how whenever this district attorney loses evidence it is always the investigating officer or their departments fault. This is not the first time this district attorney’s office has made such a false accusation and I’m sure it won’t be the last. They have a history of not only losing items of evidence that they have been repeatedly provided but entire cases. Irregardless, any prosecutor worth their salt would make sure they had all the evidence long before a case came up for trial.
Exactly,not sit on them and not tell the victim until after the fact
Sometimes evidence conveniently disappears ………….
Sometimes evidence conveniently appears ………….
Kinda like that whole genie thing……………
Should someone investigate? Do not these items need to be signed for?
That would be up to the D.A. LOL Dont see that happening ,although that was a question asked and turned down flat ?????
“What we have here is, lack of communication.”
“…What we have here is failure to communicate….”
Lack of leadership in the sheriff leads to lack of education in the department leads to ineptness.
Another Maine shocker, lost evidence, finger pointing and light sentences. Why bother actually properly handling a case?
Relative? Friend in the right place? Wonder what is the cost of the right verdict is today?
And the sheriff strikes again, the officer screws up and dennison jumps on the DA. Is that so-called sheriff running for office anytime soon? Where may I ask has that sheriff been trained……oops, forgot, no training to be a leader, it was a popularity contest……..sorry.
Just because the Assistant DA says its the officers fault doesn’t make it so. It is the job of the prosecutor to make sure that he/she has all the evidence available in the case prior to trial. This is an example of what happens when you have a history of not reviewing your case file until the day before you have to start your trial. This DA and his office’s have a long history of blaming law enforcement for their incompetence.
I wonder if the term Chain of Custody has ever been taught to the Knox County Sheriff or the DA. This isn’t sloppy work. It’s a clear case of negligence that’s been going on for so long that it’s now an accepted practice. Sooner ot later this is going to catch up with the DA and Sheriff’s Office and someone is gonna get hauled in in front of the Chief District Judge for a VERY not nice ‘woodshedding’ session.
And as sure as God made apples and bluberries, you can bet that any local defense attorney is now going to start going after the Chain of Custody as a way to get their client off. The same can be argued for anyone that’s in Warren or Downeast. When Chain of Custody is broken the Judge has no choice but to exclude the evidence since the possibility of it’s being tampered with is now a serious issue. If the evidence in question was THE single reason for the conviction being reached by the Judge or jury, the Judge has no choice and MUST vacate the conviction. Now, just how many felon’s, drug dealer’s and child abuser’s are now gonna be let out simply because someone who should have known better decided that treating evidence was a conveinience, not a requirement that protects us all ? There is an obvious need for some re-training and re-education from those folk’s in Vassalboro, not to mention the Law School’s, in basic evidence handling and presentation. Given what’s happened here, it’s also clear that someone in the AG’s Office has been more than a little asleep at the wheel. This is what you get when press release’s and media moment’s become more important than getting the basic job done. It’s also the stuff that civil rights violations complaint’s and Bar Disiplinary Committee hearing inevitable.
Best comments so far, I remember evidence tags having to have multiple tags attached to keep a true written chain of custody. Attorneys (be they prosecutor or defense) seem to think it is below them to sign for chain of custody…….if the chain is broken the evidence could be tossed……kinda like a reverse Dirty Harry………….
As this is 2012, not to have a written chain of custody, an evidence log, and an evidence room at both the police/sheriff’s office and the DA’s office is just plain stupid and irresponsible.
In the digital age, all the Prosecutor’s office is going to get is copies of any video or paperwork, thus no “chain of custody”, and the original “copy” is going to reside at the SO. The original is only going to be presented at trial, if needed.
Relax, all we’re talking about here is missing paperwork.
No, what we are talking about is a clear violation of Chain of Custody since the evidence, not a copy of, has to be constantly accounted for and secured right up to, and including, the trial and appeals process. Not having the video tape, that’s the original that show’s all element’s of the offense, under Chain of Custody accountablity just toss’s the entire case out the door. It also shows more than a little disregard for the entire legal system since the Judge, and the jury if it ever got that far, would be asked to render a verdict based on ‘assumed’ evidence. Anyone wanna’ bet how long that’s gonna’ last in front of an Appeals Court, not to mention a civil damage’s jury for illegal incarceration and Abuse of Authority in front of a Grand Jury ? Digital is fine for keeping track of where it is, not for actually having it in hand. That’s what Chain of Custody is about.
And it’s time for the AG to ‘get off the dime’ and publicly get this ‘cluster’ corrected before anymore of this happens. The next time we might have to deal with this evidence ‘problem’ not being accounted for and under proper custody and wind up with a Jeffery Dahmer-type monster getting turned loose because someone thought is ‘too difficult or time consuming’. Anyone wanna’ play Russian Roulette with evidence custody in a sex abuse case and bet your kid’s safety on the process ?
“Assistant District Attorney Christopher Fernald said Thursday that the evidence was not lost but was never turned over to the district attorney’s office by the sheriff’s office. He said he made several requests — both by telephone and email — asking that both the surveillance video and a ballistics report on a shell casing found under the wharf be provided to him. The shell casing matched the rifle seized from Simmons, Fernald said.”
All they were asking for is a copy of the report and a copy of the video. The dispute is whether or not they got it.
No, the question that is big as LePage’s ego is where is the video tape ? The DA got the ballistics report but no where do I see where the actual rifle is in anyone’s legal custodial possession. And as far as the tape is concerned, that is still no where to be found. You don’t show assumed evidence in Court unless you enjoy the Judge cutting you off at your ‘Twinkies’ in front of the jury. That happesn and no matter how good your presentation, up to that point, and you might as well ask for a dismissal for insufficient evidence. And when a ADA tells the press that the evidence was lost, folk’s, it’s over. If I were Fernald I’d be looking to scoot real soon !
This is just another black mark on the court system here in Knox county. It’s bad enough they built a palace on the tax payer dime when all that is needed for a courthouse is bricks, bars & guards. As far as the DA’s office goes they are already under investigation at least Rushlau is. Seems he’s a bigger crook then many of those he put away.
Check it out: http://rushlau.blogspot.com/
You may recall a couple of years ago, off duty members of the Knox County Sheriff’s office literally paraded around in trucks in downtown Camden, likely drunk , yelling and causing a public disturbance because one of them was getting married[or some private citizen reason] Anyone else would have been arrested but obviously the Knox County department felt they were ‘above the law’ because they are the law.
I am going with the Assistant District Attorney Christopher Fernald version of who erred.
Gotta wonder what the going price is for making evidence ‘disappear’ in Knox county.