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Lawyers complain about police tape; 10 minutes of sound said lost in drug case evidence

By John Stevenson
The Durham Herald Sun

DURHAM, N.C. — Two defense lawyers complained Thursday that police deliberately and unconstitutionally erased part of a tape recording needed as evidence in a high-dollar drug case, but a pair of prosecutors insisted it wasn't so.

Lawyers Bob Brown and Jerry Clayton said the alleged tampering reminded them of the Duke lacrosse scandal, which also involved the withholding of prosecution evidence, and which brought down the career of former District Attorney Mike Nifong last year.

Brown and Clayton argued successfully that Durham's top judge, Orlando F. Hudson, should personally take over the cocaine case to help protect the constitutional rights of all arrestees in the Bull City.

Otherwise, public confidence in the local judicial system could be undermined, just as it was in the lacrosse proceedings, according to Brown and Clayton.

Hudson agreed to oversee the drug matter for the time being.

The defendant is Kenneth Perry, who was charged with trafficking cocaine after his vehicle was stopped on Interstate 85 during May 2007.

Assistant District Attorney Jim Dornfried revealed in court Thursday that five kilograms -- approximately 11 pounds -- of the illegal drug are at issue, a large stash for a local bust and one that reportedly would bring a hefty six-figure sum in street sales.

A police dashboard camera recorded 40 minutes of video during and after the stop of Perry's vehicle, but the audio portion of the tape was only 30 minutes long, Brown and Clayton noted Thursday.

They said it was apparent the Police Department "intentionally tampered" with the audio.

According to Brown, the lost 10 minutes of sound could reflect on whether police had "reasonable suspicion" -- or so-called probable cause -- to pull Perry over in the first place.

If they didn't, the case would have to be thrown out.

"Please forgive me, I just don't trust the Police Department," said Brown. "I'm the defense attorney. I'm not supposed to."

Brown indicated he would seek later to have the entire police tape eliminated as evidence against Perry.

But District Attorney David Saacks and one of his assistants, Jim Dornfried, countered Thursday that nothing was deliberately removed from the tape.

Dornfried said an officer's microphone apparently was turned off during the 10 minutes in question, so there was no sound to erase.

In addition, Dornfried said he consulted the manufacturer of the police audio-video equipment, who performed a software review and concluded no alterations had occurred to the recording.

Still, Hudson expressed concern about the situation.

He said Durham's judicial system took too many "hits" in the lacrosse scandal for such evidence-tampering allegations to be swept under the carpet.

"How can they unilaterally alter anything?" the judge asked, referring to police.

"It ain't the Police Department's tape," he said. "It ain't the defendant's tape. It's the court's tape. ... If there's something embarrassing on the tape, if there's something irrelevant on the tape, what is it you can legally do about this?"

According to Hudson, police were required to surrender the entire tape, whether or not they liked its contents.

The judge said he would oversee the case until it appears to be properly on track.


Wire Service

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