A judge has faulted prosecutors for failing to secure evidence after two dogs that were seized more than a year ago from the home of a Buffalo police cellblock attendant accused of promoting dogfighting were lost at the Buffalo Animal Shelter.
“Notwithstanding the people’s contention that the dogs in question are different than an inanimate object which can be stored in evidence … it remains incumbent upon the people to properly secure and preserve all evidence in any criminal proceeding,” State Supreme Court Justice Christopher J. Burns said.
“In this case, there was a lack of care taken to properly secure the animals that resulted in the loss of evidence,” he added in a decision issued last week.
The judge said the appropriate remedy for the failure to secure the evidence is to bar prosecutors “from offering the testimony of any expert who physically examined either animal or any reports based upon that physical examination” or any expert “who has reviewed a report that was prepared after a physical examination of either animal.”
He added that the prosecution and the defense can ask other experts to review photographs of the two dogs, taken after they were seized and before they were lost, and elicit their opinions at trial.
The two scarred dogs were removed Dec. 7, 2013, from the home of Shannon Richardson on Erb Street, along with items allegedly used to train dogs for fighting. Two puppies also were seized, but there was no indication they were involved in dogfighting, prosecutors said.
Richardson, 35, was charged with three felony counts of promoting animal fighting, two misdemeanor counts of animal cruelty and one misdemeanor count of prohibition of animal fighting. He pleaded not guilty, contending that he raises dogs for show. He has been suspended from his cellblock attendant job.
One dog, Rochelle, went missing from the shelter on Jan. 6, 2014, and has not been located, the judge said. “In addition, it was recently learned by the court that a second dog, Tiki, was euthanized on or about Sept. 30, 2014, after biting a shelter employee in July of 2014,” Burns said.
The judge issued his decision after Richardson’s lawyers asked him to prevent prosecutors from using any evidence regarding Rochelle and Tiki. “Specifically, the defense contends that the people’s failure to secure these dogs exhibits negligence on the part of the people in preserving evidence,” Burns said.
Prosecutors contend that the defense did not seek to examine the dogs before Rochelle went missing and Tiki was destroyed, that any wounds on the dogs would have healed by the time the defense examined them and that the defense has access to photos showing the dogs’ condition when they were seized.
While the judge acknowledged that the photos document the dogs’ appearance at the time, “they do not replace the physical evidence of the dog,” he said.
“The people were responsible for securing the evidence and were negligent in failing to do so,” Burns said. “… With regard to Tiki, at a minimum, the people should have provided notice, to the defense and the court, of the impending euthanasia between the time of the bite in July and the euthanasia in September.”