Today in a courtroom in Macomb County, the 5th Amendment right to due process of law prevailed. The issue was rather simple and frankly one we do not see as much in the modern era of technology. I filed a Motion to Dismiss a case on the grounds that 911 recordings were not preserve. The 911 recording would have shown that my client was the caller and the so called “victim” (I do not use that word, I use ‘complainant) was the aggressor. On the body camera, which remarkably was preserved, my client is seen telling the police that the complainant was the aggressor.
The prosecutor put the detective in charge on the stand. He agreed that preserving evidence was essential in cases and that 911 evidence is the type of evidence that must be preserved, He tried to flimsily state that the 911 recordings are destroyed unless demanded after 90 days. I said flimsily because he was not the proper witness on evidence preservation and the policies of the Macomb County Sheriff Dept on the topic. So the judge struck that line of testimony My judge was a former defense attorney and knows that evidence flows in at different times. I made sure to argue in closing that preservation of evidence does not have some magical timeline that relieves the government of its burden to preserve evidence.
The Judge was seriously troubled that the evidence, which the prosecution conceded was exculpatory, was not preserved. She agreed with my analysis that Federal Supreme Court law classifies that evidence as the type that must be preserved. She also agreed that it would be impossible for the jury to assess the credibility of the complainant without this evidence. That is one of the prongs necessary to grant a dismissal.
Bottom line the Constitution was alive and well in a Macomb County courtroom today.
