It is common knowledge at my office that the Mississippi Highway Patrol, as well as some other agencies, is generally unresponsive to discovery requests in trial court, for whatever reason. Typically, our requests for police reports and notes, audio and video records, and other evidence are ignored; we will get to see the evidence when we show up for court. But what happens when that evidence is lost or destroyed before an appeal can be prosecuted, and before the defendant receives a copy?
This is exactly what the Mississippi Supreme Court ruled on last week. In Freeman v. State, NO. 2012-KM-00192-SCT, the defendant was stopped by a state trooper for speeding and subsequently arrested for DUI first and various traffic charges. The defendant issued a subpoena duces tecum to both the prosecutor and the trooper, but they were “inconceivably ignored.” The defendant first saw the evidence at trial, and he was found guilty. Upon conclusion of the trial, the defendant filed a notice of appeal and requested the video be preserved for the trial de novo; the county court then issued an order directing the State to preserve the video evidence for trial.
But upon filing for discovery in the trial de novo, the defendant was advised that the video had been stored on the trooper’s laptop but the files had been corrupted and lost. The county court denied the defendant’s motion to dismiss, but inferred that the video would have been helpful to the defense. Without the video, however, the defense was left to impeaching the trooper’s contradictory testimony with a transcript from the justice court. There was contradictory testimony from the trooper as to whether the video showed the defendant staggering or that he had slurred speech. But the defendant was again found guilty, and the conviction was upheld by the circuit court.
The Mississippi Supreme Court unanimously reversed the DUI conviction on May 30, 2013. The court noted that the trooper and the prosecutor “inconceivably ignored” the subpoena duces tecum regarding the video evidence, thus denying the defendant an opportunity not only to review it prior to trial, but also to make a copy of the video to aid in his defense. Moreover, the court determined that the State had no legitimate reason for its failure to preserve the video, thus violating the county court’s order. And finally, the court determined that the destruction of the video deprived the defendant of his right to a fair trial under the 14th amendment’s due process clause. The trooper’s testimony was “extremely self-contradictory,” and, without the video, the defendant’s ability to impeach the trooper’s testimony was irretrievably impaired.
So what is to be taken away from this decision? Well, hopefully the Mississippi Highway Patrol and other agencies will heed the court’s implied warning against such a lackadaisical approach to producing and preserving evidence. Nonetheless, considering the overly conservative nature of things in Mississippi, it is refreshing to see this opinion from the Mississippi Supreme Court.
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