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Sheriff’s staff gave away key evidence in drug gang murder case

Francisco “Cisco” Santos was a small-time drug dealer facing a big problem. He got on the wrong side of the wrong people – leaders of one of the most violent drug gangs in Western New York.

In October 1998, he was grabbed in Rochester, forced into a car and taken on a long, agonizing ride to Seneca Indian Nation territory near Gowanda. There, several men took him into a wooded area off Route 438, where they taunted and spat on him, told him he was about to die, and then stabbed him to death, dumping his body in a makeshift grave, according to a confession one of the killers made in court papers.

Nearly 16 years later, federal prosecutors believe they know who killed Santos and want to take the case to trial. But now, they have a problem: the Erie County Sheriff’s Office mistakenly discarded key evidence, including a knife blade that was one of the alleged murder weapons.

A former property clerk for the Sheriff’s Office recently admitted in court that, in 2002, he gave all the physical evidence from the Santos murder to an auctioneer, who either sold it off as junk or disposed of it. The former employee said he did not realize that the items in an evidence box were related to the gruesome murder case.

The loss of the evidence has become a matter of contention in the federal case against alleged members of a vicious gang police claim was headed by James “JD” Kendrick, one of four people accused of killing Santos.

The U.S. Attorney’s Office says the disappearance of the evidence should have no effect on its efforts to convict Kendrick and three other people accused in a wide-ranging drug conspiracy case that includes the murders of Santos and another man. They note that two other men already have taken guilty pleas in the case and agreed to testify about Santos’ murder.

But defense lawyers filed papers last month claiming the sloppy handling of evidence in the murder case “amounts to malfeasance” by the Sheriff’s Office. They asked a judge to dismiss all or part of the drug conspiracy case.

“To see evidence handled in this way for such an important case was very disappointing,” said defense attorney Cheryl Meyers Buth, who recently filed a legal challenge seeking dismissal of murder charges in Santos’ case. She noted that federal prosecutors at one point were considering a possible death penalty case against the defendants.

“It makes you wonder what kind of procedures are in place, not only in the Sheriff’s Department but others,” she said.

Defense attorney Daniel J. Henry, who until recently represented one of the defendants, also accused the deputies of sloppiness.

“They basically were storing things like recovered bicycles in the same room with important evidence from a murder case,” he said. “They were throwing things out in a way that was not well-organized.”

Sheriff Timothy B. Howard also was disappointed that the evidence was discarded, according to his top aide, Undersheriff Mark N. Wipperman. The department has since vastly increased the size of its evidence-storage room and computerized evidence-storage procedures, he said.

Howard, now in his third term as sheriff, was undersheriff at the time the evidence went missing. Patrick M. Gallivan, now a state senator, was sheriff at the time.

“It was an antiquated system. It needed to be replaced, and I’m proud to say that we have done that,” Wipperman said. “We went from a pen and paper system to a computerized system using bar codes, with all the evidence being scanned in and out.”

Little progress

The Santos murder involves allegations against associates of a drug gang that used extreme violence and then bragged to others that they were above the law and couldn’t be touched.

Santos was as a small-time Rochester drug dealer who was suspected of stealing drugs and money from the gang, according to authorities. Gang members tried to kill him on one earlier occasion in 1998, using a box cutter to inflict a 4-inch gash on his head, according to court papers.

When they caught up to Santos again in October 1998, they drove him to Gowanda and killed him in the woods near an old Seneca Nation lacrosse field. His body was found eight months later, when some kids playing in the woods spotted a bone sticking up out of the ground.

Police made little progress on the case for years, but in 2010, Rochester Police and the U.S. Bureau of Alcohol, Tobacco, Firearms & Explosives came up with some new information that allowed them to revive the long-cold investigation. Kendrick and his alleged associates were indicted on federal charges in 2010.

But Santos wasn’t the only one killed by the drug gang, police said. The defendants also are accused of killing Ryan Cooper, a 23-year-old Seneca who had been a close friend of Santos. Police say the killers lured Cooper to an apartment, where they whacked him over the head with a hammer and then cut up his body up in a bathtub. Police believe the body parts were disposed of in locations all over Rochester. Cooper was the father of a young child.

“We [are] notorious,” one defendant, Pablo Plaza, allegedly boasted to an informant who was wearing a listening device after the two murders. “The mob rides again…We beat every charge they ever had.”

Evidence found

Prosecutors in court papers laid out the investigation after Kendrick and his alleged crew were indicted.

On May 18, 1999, an evidence team from the Erie County Sheriff’s Office was sent out to the Senecas’ Cattaraugus Territory, after youngsters spotted what appeared to be a human bone protruding from the ground in the woods near the old Pinewoods lacrosse field.

Led by Lt. Thomas Rich, who has since retired, the evidence team dug up the site and found Santos’ badly decomposed body. They also found a non-driver’s state identification card, a liquor bottle, a Rochester transit token, broken sunglasses and a broken shovel.

Returning to the scene more than a year later, evidence technicians used a metal detector and found a broken knife blade, which police suspect was one of the murder weapons.

All of Santos’ clothing was thrown away because police and medical examiners felt it was too badly damaged by the deterioration of his body to be of much value as evidence. No extensive DNA testing was conducted on the knife blade, the clothes or any of the other recovered items. But the other evidence was placed in the Sheriff’s Office storage room.

The evidence stayed in that room for years, as police looked into the slaying. Investigators made little progress until 2010.

But after indicting Kendrick, Pablo Plaza and others, authorities went looking for the physical evidence and made a disturbing discovery. It had been disposed of by the Sheriff’s Office eight years earlier.

Why would police get rid of evidence from such a grisly crime?

It was a mistake, retired Sheriff’s Deputy Douglas Burke, a former property room clerk, admitted during a federal court hearing in April of this year.

Burke, who took full responsibility for the error, said he disposed of a box containing evidence from the Santos murder because he was running out of shelf space in the department’s small, cluttered property room, located in a bunker building at Chestnut Ridge Park in Orchard Park.

He said he routinely cleared out space by giving old evidence to an auctioneer, who either sold it or threw it away.

Burke said he was careful not to get rid of evidence for a homicide or some other major case.

“Normally, I would look at the cases and see what they were,” Burke testified. “On this one, because it’s a murder, I never should have given it away. … It was a mistake.”

Why throw away evidence from a file marked “homicide?” Magistrate Judge Jonathan Feldman asked Burke at the hearing.

Testifying 12 years after the disposal of the evidence, Burke said he just couldn’t remember.

“I don’t know why,” he said. “I sent it away and it was my error.”

He said he may have misread a file number.

Dismissal sought

In court papers filed late last month, defense attorney Buth and co-counsel Bobbi C. Sternheim asked that all or part of the indictment in the case be dismissed because it is based on faulty evidence.

Since the evidence was disposed of 12 years ago, Buth said, “all kinds of technological advancements” have been made in the field of DNA.

“We don’t know what could have been found on this knife or any of these other items,” she said.

Sternheim represents Kendrick, the alleged ringleader, and Buth represents Janine Plaza-Pierce, Kendrick’s mother.

“The situation at the Erie County Sheriff’s Office amounts to malfeasance,” the two attorneys said in court papers.

Assistant U.S. Attorney Everardo “Andy” Rodriguez said the Santos murder charges are only one part of a wide-ranging conspiracy that also involves the murder of Ryan Cooper, numerous drug crimes and firearms crimes. He also said he does not consider the missing evidence to be a fatal blow to his case. Two defendants already pleaded guilty and agreed to testify about the Santos murder, he added.

“We believe that the items discarded were not significant, and the defendants have not been prejudiced by their loss,” Rodriguez said.

Pablo Plaza, 38, pleaded guilty in May to crimes of drug-dealing and violence, including an admission that he “intentionally killed, caused the intentional killing or aided and abetted in the killing” of Santos. He is the same Pablo Plaza who allegedly bragged years ago that he and his gang were “notorious” and beyond the reach of police.

According to Plaza’s plea agreement, Santos was driven from Rochester to a relative of Plaza’s home on the Seneca reservation, and then taken to a location “down a dirt path behind some trees.” That is where Plaza, Kendrick and a third man repeatedly stabbed Santos until he was dead, the statement said.

“Santos was placed in a hole” and Kendrick then “covered him with dirt,” according to the plea papers.

The loss of a murder weapon and other physical evidence is a rare occurrence, and is not good news for prosecutors, said two local legal experts, former Erie County District Attorney Frank J. Clark and Lancaster defense attorney Joseph Terranova. Both men have taken part in many homicide trials.

“Witness testimony is always good to have, but physical evidence is wonderful because there are no biases associated with it. It is what it is,” said Clark, a longtime federal and Erie County prosecutor who retired at the end of 2008. “Losing physical evidence could hurt your case. It depends on how much other evidence you have.”

Clark recalled the still-unsolved murder of Frank D’Angelo, a burglar and gambler who was gunned down as he walked out of the old Mulligan’s restaurant on Hertel Avenue in North Buffalo in 1974.

“Years later, we were taking a second look at all the old mob hits, trying to use DNA evidence to solve them,” Clark said. “We could never do anything on the D’Angelo case because the gun used to kill him had mysteriously vanished from Police Headquarters.”

Another possible problem was brought up by Paul J. Cates, communications director for the Innocence Project in New York City. He said the loss of evidence could harm any chances that the defendants’ could someday appeal their convictions, based on DNA evidence.

“Since 1989, there have been at least 317 people exonerated from crimes by DNA evidence. We’ve been involved with 173 of those cases. Most were sexual assault cases, but some were murders,” Cates said. “Without physical evidence, it can be much harder to prove that someone is innocent.”

So far, no trial date has been set for the defendants in the drug conspiracy case. The defendants in the case who are accused of taking part in the Santos murder are Kendrick, Plaza-Pierce, Angelo Cruz and Pablo “Paul” Plaza, 41. All have pleaded not guilty.

The Pablo Plaza who took the guilty plea in May is a brother of Kendrick and Pablo “Paul” Plaza, police said.