Judge won't allow testimony from destroyed recording in dogfighting case
Judge Melinda Morris ruled to not allow witness testimony describing the contents of a destroyed recording in the case of an Ypsilanti Township man accused of selling ‘dogfighting’ puppies.
The judge did not, however, grant the defense’s motion to dismiss the case at a hearing in the Washtenaw County Trial Court Monday. The case will return to court next week to give the prosecution time to determine the impact of the ruling.
The recording in question, an alleged conversation between undercover officers and Gayland Tomlin, 28, was accidentally thrown away back in February, but prosecutors didn’t learn of it until July.
Tomlin is accused of trying to sell a ‘dogfighting’ pit bull puppy to undercover officers with the Humane Society of Huron Valley and the Washtenaw County Sheriff’s Office last winter. The destroyed recording was of that transaction, prosecutors said. When the Humane Society officer wanted to boost the sound quality, the recording was given to someone at her agency as opposed to the sheriff’s office.
An information technology specialist at the Humane Society couldn’t find the sound file on the disc and threw it out.
“There was nothing accidental,” said Tomlin’s public defender, Steven Adams. “An employee in the agency in charge of this case intentionally destroyed (this recording).”
Assistant Washtenaw County Prosecutor Paul Barnett argued the recording wasn’t destroyed because of its contents or how it might effect a trial. The person who threw it out inadvertently did so.
“It was an accident,” he said. “It’s regrettable, but accidental.”
Due to the ruling, the officers who were wired with recording equipment to tape the conversation with Tomlin will not be able to testify about what was on the recording if the case goes to trial.
The next hearing is set for Aug. 27.
John Counts covers cops and courts for AnnArbor.com. He can be reached at johncounts@annarbor.com or you can follow him on Twitter.
Comments
jns131
Fri, Aug 24, 2012 : 5:46 p.m.
Dogs 0. Criminals 1.
Elaine F. Owsley
Thu, Aug 23, 2012 : 11:47 a.m.
Judge Morris strikes again. I bet culprits pray to get into her court.
WalkingJoe
Wed, Aug 22, 2012 : 7:44 p.m.
That's John for clearing that up for now. I thought she wasn't going to let the officers testify at all. Hopefully at the next hearing that will be totally cleared up.
jcj
Wed, Aug 22, 2012 : 8:39 p.m.
I thought I cleared that up in my reply to your 1st comment.
John Counts
Wed, Aug 22, 2012 : 6:28 p.m.
There seems to be some confusion here. What was said in court implies the officers who were taping the conversation won't be able to testify as to what was on the recording. The judge did not go into detail whether or not this means the officers will be able to testify about the conversation they had with Tomlin. I'm guessing since the prosecution asked for a week adjournment, he too needs time to determine exactly what it means. It should be made more clear at the next hearing.
Goodphotographer
Wed, Aug 22, 2012 : 6:18 p.m.
something is missing from all the stories
SEC Fan
Wed, Aug 22, 2012 : 4:17 p.m.
Something seems to be missing from the story. you don't need a recording for evidence. Eyewitness testimony is also quite acceptable. They couldn't testify as to "what was on the recording", but they could testify as to what they witnessed/heard during the conversation that was recorded. Is there a problem with the witnesses? Will they not be allowed to testify?
Goodphotographer
Wed, Aug 22, 2012 : 4:12 p.m.
I see some feel it's Damned if you do ...follow the law...Damned if you don't. You can't under our laws admit recordings into evidence that you don't have or that do not exist. Even last dying words/utterances 'he said she said; is shaky ground when memories fade or emotional embellishment comes in play. In this high technology age is it just for private citizens to backs up sensitive data? Someone should have had a 'master' plan. Even this judge can get it right (IMO) more often than not. Sad thing is that when she gets it wrong, it's very wrong. Was it a weak case to begin with? Well it would seem to be weaker without the tape, Stuff happens. Now can we see a photo of the puppy?
ordmad
Wed, Aug 22, 2012 : 2:53 p.m.
Like it or not, like the judge or not, she followed the law. The police screwed up and it isn't a technicality: this rule of evidence finds its roots in the Constitution, you know, that pesky little document upon which this nation was built.
Smiley
Wed, Aug 22, 2012 : 2:23 p.m.
Whether she got this one right or wrong, Judge Melinda Morris generally LACKS the key characteristic needed to be a good judge...sound judgment.
nickcarraweigh
Wed, Aug 22, 2012 : 2:23 p.m.
Where is written that the rules of evidence apply to police and prosecutors, for Pete's sake?
justcurious
Wed, Aug 22, 2012 : 2:12 p.m.
Too bad we don't get to edit our comments on here...
justcurious
Wed, Aug 22, 2012 : 2:11 p.m.
How long Lord, how long..rulings?.must we endure this woman's
mermaid72
Wed, Aug 22, 2012 : 1:19 p.m.
Another animal abuser will walk because of a technicality, and he will be free and most certainly continue to raise & sell animals to those cruel dog fighters who can't understand right and wrong. No wonder people take the law into their own hands.
mermaid72
Thu, Aug 23, 2012 : 12:04 p.m.
Thanks, Ferdcom, Then you can become my sheriff! At least I have a sense of what's right & what is inherently morally wrong in a world where people who commit horrendous crimes can get off scott free because of some legal mishap or technicality. What happened to the "intent" of the law or crime?
ferdcom
Wed, Aug 22, 2012 : 6:58 p.m.
@mermaid You're the person we need. We can save millions of dollars spent on the legal systems. County prosecutors will provide you with a 500 word summary of any alleged crime (no input from the defense) and you can decide guilt and set the punishment.
jcj
Wed, Aug 22, 2012 : 1:25 p.m.
I would normally agree. BUT those technicalities are what makes us different from some places on earth.
xmo
Wed, Aug 22, 2012 : 12:48 p.m.
Sounds like somebody didn't follow procedure. Another person added to the rolls of the un-employed!
Eep
Wed, Aug 22, 2012 : 7:47 p.m.
From SonnyDog09: "This is a government job. Nobody gets fired for screwing up. You must be new here." Let's see - the article says that the undercover officers involved worked for the Humane Society of Huron Valley, and that the technician who destroyed the recording worked for the Humane Society of Huron Valley. The Humane Society is a completely private organization - they provide animal control services and investigate animal cruelty under a contract with the county. So what's really happening here is that the county government outsourced a public law enforcement function to a private organization - and this was the result.
SonnyDog09
Wed, Aug 22, 2012 : 3:17 p.m.
This is a government job. Nobody gets fired for screwing up. You must be new here. I've asked this before: Why isn't the person who destroyed the evidence in jail?
arborani
Wed, Aug 22, 2012 : 1:40 p.m.
If I had to guess, I'd surmise that employee is still in place.
jcj
Wed, Aug 22, 2012 : 1:13 p.m.
I just checked and surprisingly there are quite a few "information technology specialist" jobs available. Now a problem might arise when at the interview they ask why you left your last job!
WalkingJoe
Wed, Aug 22, 2012 : 12:32 p.m.
That's right Judge Morris, let's protect the criminals all we can so that they keep on breaking the law. Did she say why the officers can't testify about what transpired? Does she think they weren't there?
Jon Wax
Wed, Aug 22, 2012 : 4:13 p.m.
because, and im no lawyer so this is an "educated" guess, without verifiable tangible evidence to back up those claims, then the evidence becomes "hearsay" that is inadmissible in court. this would be needed to prevent your neighbor from accusing you of "insert random crime" and when you get to court and the prosecutor has no evidence, your neighbor won't be able to claim "well i heard him say he was going to" or "someone told me that that guy did such and such". claims such as those would be considered "hearsay" and because there is nothing to back em up, they can't be used in court. which is a good thing. we stopped burning witches a few years back. in re: dog dealer Karma is a female dog with a bad attitude and a sharp set of teeth. good luck with that. Peace
jcj
Wed, Aug 22, 2012 : 1:10 p.m.
I find myself in the unique position of (it chokes me to say this) defending Judge Morris. But I don't know that she said those present at the alleged meeting can't testify. They just can't describe the contents of a tape that does not exist.
jcj
Wed, Aug 22, 2012 : 12:29 p.m.
While I have absolutely NO sympathy for someone who would sell puppies for fighting. I also have NO sympathy for a supposed "information technology specialist" that would throw away something so important to the case. Judge Morris did the right thing in this case.