Archives | Buy Photos | Subscriptions | Submissions | Advertise | Contact

Wednesday, June 19, 2013

By Steve Myrick
Published: February 26, 2009

An attorney for Michael Ellis has asked that robbery and assault charges against his client be dismissed, because Edgartown police inadvertently destroyed a video recording in which, police say, Mr. Ellis confessed to stealing a night deposit bag containing more than $400 from 79-year old George Buckley, the well known ticket taker for the Capawock Theater. Mr. Buckley was robbed as he carried the bag to a bank night deposit drop on Main Street in Tisbury. Also arrested was Brett Geddis, age 18. Mr. Ellis was 20 years old at the time of his arrest last October.

Cornelius J. Moriarty 2nd, Associate Justice of the Edgartown Superior Court, took the request to dismiss charges under advisement. He is expected to rule before April 6, when the defendants are scheduled to return to court for a status hearing.

In an evidentiary hearing Tuesday, Cape and Island assistant district attorney Laura Marshard explained what went wrong. On October 7, Edgartown police were interviewing Mr. Ellis about an unrelated investigation, in an interrogation room at the police station. Police intended to record both a video and audio during the interrogation on a digital video recording system used routinely for all interrogations. Later, Tisbury police detective Mark Santon and officer Dan Hanavan, based on their own investigation, entered the interrogation room to ask Mr. Ellis about the Capawock robbery. As nearly as police can determine, the audio portion of the recording, which is activated through an on-screen computer interface, was never made. Later, the video portion of the recording was accidently erased, when Edgartown police recorded another interrogation over it.

Rob Hoffman, the attorney representing Mr. Ellis, stipulated that the destruction of evidence was not an act of bad faith by police. But, he argued that without the recording, Mr. Ellis is deprived of evidence that might exonerate him, or might indicate he is guilty of a lesser crime than those with which he is charged.

"He is being deprived of his right to a fair trail, to cross examine witnesses," said Mr. Hoffman. "There can be no more important evidence in this case than this recording. The only remedy is to dismiss."

While conceding that statements of Mr. Ellis are the principle evidence in the case, Ms. Marshard argued that dismissing the charges would be an extreme remedy, because there is other evidence implicating him, including a confession hand written and signed by Mr. Ellis. She noted the police officers that conducted the interrogation wrote reports based on written notes they took during the interview. She also told the court that at various times, as many as five other police officers were watching the interview on a computer screen outside the interrogation room, and they could testify at a trial.

The testimony of two police officers during the hearing highlighted how the loss of the evidence could make it more difficult for Ms. Marshard to satisfy the Commonwealth's burden of proof.

In the courtroom Tuesday, Tisbury detective Mark Santon answered questions from Ms. Marshard about his memory of the interrogation, which took place more than four months ago. Detective Santon testified that at one point in his interview, Mr. Ellis threw up his hands and said, "I did it. I'm your guy." In further questioning, Mr. Santon had difficulty remembering the exact phrasing Mr. Ellis used during other parts of the interrogation, until he referred to the police report he wrote based on his notes. He also said he could not recall from memory another statement made by Mr. Ellis, which the defense attorney said was included in Det. Santon's report.

During cross-examination Mr. Hoffman challenged the accuracy of both Det. Santon's memory, and the reports he filed.

"His memory is full of holes," said Mr. Hoffman. He told the judge that without the audio and video recording, "Mr. Ellis and I are in no position to challenge that testimony."

Judge Moriarty said he is required to weigh whether the loss of the evidence outweighs the right to a fair trail. "The Commonwealth's actions, however inadvertent they may be, may have deprived Mr. Ellis of evidence," said Judge Moriarty.

"I'm not confident that his memory is completely accurate," said the judge, referring to Det. Stanton's testimony. "Which is understandable. This is not the fault of the police officer."

A range of sanctions is available to Judge Moriarty, from taking no action, to dismissing the charges against Mr. Ellis. Within that range of sanctions is an instruction to a jury that in the absence of a recording, other evidence of a confession, including the testimony of police, must be weighed "with great caution and care."

That sanction, known as a DiGiambattista instruction, stems from the 2004 Supreme Judicial Court ruling Commonwealth v. DiGiambattista, in which the court said it strongly preferred that police record interrogations.

According to police, a new, simpler to use video recording system is now in use at the Edgartown Police station. That system automatically records video and audio directly to a CD, so there is a physical copy of the interrogation available immediately.