GUILTY NH - AH, 14, North Conway, 9 October 2013 - #14

[J Block]

The duty to preserve evidence begins once any state agency or actor has gathered and taken possession of evidence as part of a criminal investigation.

Law enforcement doesn’t need to preserve all evidence it collects. The duty to preserve extends only to evidence that might be expected to play a significant role in the suspect’s defense: “material” and “exculpatory” evidence

Per the Brady v. Maryland decision, prosecutors have a duty to disclose exculpatory evidence even if not requested to do so. Prosecution is not required to search for exculpatory evidence and must disclose only the evidence in its possession, custody, or control. The prosecution's duty is to disclose all information known to any member of its team (LE, investigators, crime lab, etc)

IMO, Kibby's defense is crying about the lack of given in the affidavit of probable cause. This may just be a simple tactic to try to obtain as much info/evidence that LE has, in order to "level the playing field".

I play for the good guys, not the bad guys. Maybe an attorney on board can explain this better.

 

[Fireweed]

A defendant has a due process right to inspect potentially exculpatory evidence. The prosecutor, therefore, must preserve potentially exculpatory evidence so that the defendant may inspect it. Therefore, your question should be as follows: "what records would [the prosecutor] have that needed preserving, that [Kibby] has not already checked out?"

Since Kibby just barely got his arrest warrant and affidavit, I have a strong feeling that Kibby has not been able to check out any of the evidence that the DA has (so far).

 

[bessie]

I think that the actual texts are only available from certain carriers, so you would need the actual phone to see them. Also, google deletes records after a certain amount of time, so maybe they want to put them on notice.

Unless the user backed up the phone's data. Then texts should be retrievable.

 

[Not Without Peril]

Since Kibby just barely got his arrest warrant and affidavit, I have a strong feeling that Kibby has not been able to check out any of the evidence that the DA has (so far).

I agree. And that is precisely why Kibby would file a motion to preserve evidence that is potentially exculpatory, e.g., Abigail's text messages. He might anticipate a third-party-culprit defense. It would be in his interest to know who Abby was corresponding with prior to her disappearance and the substance of her correspondence. In the event that the records are destroyed, Kibby's ability to raise such a defense would be compromised or foreclosed.

 

[bessie]

If I were his defense attorney, I would file every single motion I possibly could. I would get as many adverse rulings as I could. I would do everything in my power to preserve every unconstitutional ruling for appeal that I could. If this defense attorney is smart that is exactly what he will do. If he has noticed the same pattern in this case that I have, then I would say he would be foolish not to go out there and ask for every single thing he can since he knows that it will be denied.

I got my popcorn popped.

opcorn:

 

[margarita25]

As we've seen in cases involving cold cases, years ago, boxes of evidence were stored in hopes that, one day the evolving process of dna identification could help solve crimes.

Readily /easier access may also be a factor here.

 

[white rabbit]

long article...worth reading...

http://www.conwaydailysun.com/newsx/local-news

Just a few days before Nathaniel Kibby was charged with kidnapping Abby Hernandez, the Conway police chief and a reporter from the Sun were chatting with him at the police station.

(snipped)

The conversation in the police station lobby happened a few days before Kibby was charged with kidnapping. 
Kibby fretted about a bullet he thought the police might have lost. He also talked to Wagner about their mutual love of dogs. Kibby seemed to express some surprise that Wagner's dog is named Norman.

 

[white rabbit]

http://www.concordmonitor.com/home/13028970-95/defense-state-spar-over-evidence-in-girls-kidnap

In court papers filed yesterday, Nathaniel Kibby’s lawyer argues he needs to keep all the evidence preserved because he has so little information on why his client was arrested.

(snipped)

At a hearing today, the state plans to argue that it’s impossible to safeguard the trailer and storage unit without posting a 24-hour guard at the site and that by securing them offsite they will be better preserved. In court papers, state Attorney General Joe Foster said leaving the home and storage unit where they are would attract the curious and possibly vandals. The state says it will make every effort to preserve the other items listed in the defense papers.

 

[white rabbit]

http://www.courts.state.nh.us/superior/dailydocket/index.htm

can someone open and post the carroll county daily docket? my laptop won't support the pdf file. grrr. TIA...

 

[east2west]

http://www.courts.state.nh.us/superior/dailydocket/index.htm

can someone open and post the carroll county daily docket? my laptop won't support the pdf file. grrr. TIA...

3 pages, however NK not listed.

 

[2Hope4]

http://www.conwaydailysun.com/newsx...ld-take-about-a-year-for-kibby-s-day-in-court

Hoping this doesn't impact a defendants rights to a speedy trial.

 

[AnaTeresa]

LOL. Well put.



Agreed...with the celebrity stories they seem to have more the tabloid approach (probably because they are a tabloid). ;D The rules are different, and their lawyers know it. But they do seem to try to channel that comprehensive digging to help with the missing cases. That there is more error in some of what they print is probably just because they tend to get more info and write longer articles than most. And their photos are among the best.

Let's not forget that they hacked into a kidnapping victim's phone and threw off an investigation by LE, and gave her parents false hope of being alive.

 

[AnaTeresa]

If I were his defense attorney, I would file every single motion I possibly could. I would get as many adverse rulings as I could. I would do everything in my power to preserve every unconstitutional ruling for appeal that I could. If this defense attorney is smart that is exactly what he will do. If he has noticed the same pattern in this case that I have, then I would say he would be foolish not to go out there and ask for every single thing he can since he knows that it will be denied.

I got my popcorn popped.

That's basically what you do. As a defense attorney, if you don't do certain things like file motions to preserve some constitutional rights, the ability to appeal on the issue is lost. And, you can open yourself up to an ineffective assistance of counsel claim by the defendant if you do not vigorously attack the issue. So, from a procedural standpoint, you do file a lot of "kitchen sink" type motions.

For example, in a DUI case where there is blood drawn, the defense attorney will automatically file a motion that has about ten or so points, alleging the blood wasn't drawn properly, it wasn't stored properly, etc. etc. At that point in the case, the attorney has no idea whether this is true or not. But there are deadlines for certain motions to be filed, and once past those dates, you lose your ability to address the issue. So a lot of procedural allegations are made by defense attorneys that can seem ridiculous or overbroad, but it's really run of the mill stuff.

Regarding the defense motion to secure all evidence - it's a smart move. There are some items that LE might not currently have in their possession that could, down the road, be considered evidence. This prevents tampering or destruction by Abby or her family (note - I am not saying they would!). In addition, some tests can completely destroy an evidence sample, thus making it impossible for a defendant to have independent testing done; this motion would prevent that. Additionally, some items that are collected can be returned or discarded by LE if they are determined not to be evidence; this motion prevents that.

As for the state wanting to move the home and storage unit, I don't find it all that shocking. Given the sheer amount of evidence I've seen seized in other cases, and the nature of this crime, I think it's natural to seize the storage unit. I know that seizing the home seems excessive, but it is far easier to prevent break ins/tampering/etc. to the mobile home if it is at an LE storage center than left where it is - it would cost a lot of money over time to continually guard and preserve the mobile home where it is for at least a year. This case is going to be a while; it probably won't go to trial for at least a year, but probably closer to two, if there are more charges forthcoming. So seizing the mobile home makes sense.

 

[SStarr33]

Let's not forget that they hacked into a kidnapping victim's phone and threw off an investigation by LE, and gave her parents false hope of being alive.

Huh????

 

[white rabbit]

thanks, east2west. bummer. I thought we could find it. am I not looking in the right place? the court is in ossipee?

 

[SStarr33]

That's basically what you do. As a defense attorney, if you don't do certain things like file motions to preserve some constitutional rights, the ability to appeal on the issue is lost. And, you can open yourself up to an ineffective assistance of counsel claim by the defendant if you do not vigorously attack the issue. So, from a procedural standpoint, you do file a lot of "kitchen sink" type motions.

For example, in a DUI case where there is blood drawn, the defense attorney will automatically file a motion that has about ten or so points, alleging the blood wasn't drawn properly, it wasn't stored properly, etc. etc. At that point in the case, the attorney has no idea whether this is true or not. But there are deadlines for certain motions to be filed, and once past those dates, you lose your ability to address the issue. So a lot of procedural allegations are made by defense attorneys that can seem ridiculous or overbroad, but it's really run of the mill stuff.

Regarding the defense motion to secure all evidence - it's a smart move. There are some items that LE might not currently have in their possession that could, down the road, be considered evidence. This prevents tampering or destruction by Abby or her family (note - I am not saying they would!). In addition, some tests can completely destroy an evidence sample, thus making it impossible for a defendant to have independent testing done; this motion would prevent that. Additionally, some items that are collected can be returned or discarded by LE if they are determined not to be evidence; this motion prevents that.

As for the state wanting to move the home and storage unit, I don't find it all that shocking. Given the sheer amount of evidence I've seen seized in other cases, and the nature of this crime, I think it's natural to seize the storage unit. I know that seizing the home seems excessive, but it is far easier to prevent break ins/tampering/etc. to the mobile home if it is at an LE storage center than left where it is - it would cost a lot of money over time to continually guard and preserve the mobile home where it is for at least a year. This case is going to be a while; it probably won't go to trial for at least a year, but probably closer to two, if there are more charges forthcoming. So seizing the mobile home makes sense.

I don't think I have ever followed a kidnapping case before. Do they always station a police officer at the home where the victim was held until the case goes to trial?

 

[PoirotryInMotion]

Let's not forget that they hacked into a kidnapping victim's phone and threw off an investigation by LE, and gave her parents false hope of being alive.

That's not good. What case was that? (I only follow a handful on here.)

 

[PoirotryInMotion]

3 pages, however NK not listed.

Printed Tuesday at 12:38 PM. This emergency hearing was decided after that (wasn't it?). Hopefully Twitterfeed will let us know.

 

[white rabbit]

thanks poirotry. I vaguely remember a 10:00am mention...but I don't always recall correctly.

 

[PoirotryInMotion]

thanks poirotry. I vaguely remember a 10:00am mention...but I don't always recall correctly.

Well, you may be right, rabbit! I didn't read about the emergency hearing until late afternoon in here and on Twitter--just assumed that's when it was decided. But I'll keep checking Twitter and let you know when I see anything.