MANHATTAN (CN) — Coincidentally timed with Hurricane Irma’s onslaught of the Caribbean, New York’s highest court focused Thursday on how the wheels of justice wade through increasingly common weather phenomena.
“We are talking about an act of God,” Bronx Assistant District Attorney Matthew White told the seven-judge panel in Albany this afternoon. “We are talking about a once-in-a-lifetime event.”
Superstorm Sandy is the freak meteorological event at the heart of ADA White’s argument. When the storm laid waste to the Eastern Seaboard in fall 2012, a flooded police warehouse marked a small piece of the disaster’s aftermath.
For convicted burglar Peter Austin, however, the warehouse’s ruined contents landed him behind bars.
Even though Superstorm Sandy rendered the DNA evidence against Austin worthless before trial, the court presiding over Austin’s case allowed prosecutors to submit testimony about blood that supposedly linked him to two 2009 Bronx break-ins.
Judge Eugene Fahey predicted that courts and citizens will encounter more cases like Austin’s in the coming years.
“Is this an act of God?” he asked today. “It seems like we’re going to have more hurricanes. This is something we’re going to have to deal with more, all of us.”
Nostradamus is hardly needed for such a prediction. As the court heard arguments in Austin’s case Thursday, America is bracing for its second 500-year storm this week.
Indeed Hurricane Harvey’s record flooding had hardly subsided in Houston, Texas, when Irma landed like a "bomb" on Barbuda, in the words of the country's prime minister, leveling more than 90 percent of the island nation's structures and vehicles. Vulnerable U.S. territories like Puerto Rico and the Virgin Islands have reported blackouts and declared states of emergency.
Miami residents are now scrambling to comply with mandatory evacuation orders with storm watchers predicting Irma’s descent on Florida this weekend.
So far, New York’s judiciaries have cut police departments slack for losing evidence in record-breaking storms.
The presiding judge in Austin’s case refused a defense request to instruct the jury that the contaminated blood samples would not have helped the prosecution’s case.
“Blame the police department for not having foreseen the unprecedented and therefore move materials?” the judge replied in late 2012. “I’m not giving that charge.”
Austin’s appellate attorney Mark Zeno argued that prosecutors should have faced some penalty for dragging their feet on producing evidence that they had been ordered to give the defense.
“It still hadn’t been dealt with when Hurricane Sandy made landfall,” he said today.
That argument failed by a 3-1 margin during Austin’s intermediate appeal before New York’s Appellate Division, First Department.
While today’s seven-judge panel also appeared skeptical, the prosecution faced strident questioning about their obligations from Judge Leslie Stein.
“They did delay for a very long period of time, and as a result of that, the evidence is no longer there,” she said. “Someone is going to have to bear the brunt of that.”
White, the Bronx prosecutor, denied having any order to turn in the blood samples.
“There’s no evidence in the record to support that,” he said.
The judges reserved decision on Austin’s case, which has several parallels to a federal case that concluded earlier this year.
In June, U.S. District Judge Kevin Castel refused to punish the New York City Police Department for losing evidence related to the officers fatally shooting Guinean immigrant Mohamed Bah.
Police fired 10 shots at Bah on Sept. 25, 2012, weeks before Sandy made landfall.
The NYPD claims that Bah lunged at the officers with a knife, but the slain 28-year-old’s family denies that.
Because police stored the evidence in a waterside warehouse, however, forensic testing for fingerprints is impossible. Along with Bah’s alleged knife, the warehouse lost roughly 1,100 barrels of biological evidence due to flooding from Sandy.
Judge Castel nevertheless found no sign of police negligence or misconduct.
“So, we are where we are,” he said, refusing to hold the evidence destruction against police at their upcoming civil trial on Nov. 1. “Facts are stubborn things.”
Federal prosecutors declined last month to prosecute any officers for Bah’s death, citing the lack of forensic evidence as a factor.
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