Brooklyn defendant demands access to evidence buried under Sandy debris

April 1, 2015 By Charisma L. Troiano, Esq. Brooklyn Daily Eagle

Judge Jack Weinstein, Eagle photo by Rob Abruzzese

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A Brooklyn defendant seeking release from prison has petitioned a federal court for access to evidence that he says is buried in a Red Hook evidence warehouse underneath Superstorm Sandy debris.

The defendant, Rohan Hamilton, argued that errors made at trial and denied access to evidence prevented denied him his constitutional rights to effective counsel and a fair trial. Late last month, a decision by Brooklyn Federal Judge Jack Weinstein provided Hamilton some hope to retrieve the sought evidence, but Weinstein’s ruling made clear that even with access and the defendant’s review of the evidence, there is little chance it would disprove Hamilton’s guilt.

Hamilton was arrested in 2004 after his child’s mother, Paschal, was discovered dead in her Bedford-Stuyvesant apartment. She was bound with duct tape and had three gunshot wounds to the chest. Upon his arrest, Hamilton was fingerprinted and later gave three statements to investigators (oral, written and videotaped).

Hamilton’s prints were matched against a print found on the original duct tape that was used to bind the victim. At trial, Hamilton’s brother testified that he overheard Hamilton admit to the murder over the phone. And the victim’s mother attested that Hamilton called her the day after Paschal’s body was found and confessed to the killing.

Currently serving a sentence of 23 years to life for the murder and an additional concurrent 15-year sentence for criminal possession of a weapon, Hamilton filed a writ of habeas corpus –or release the body—petition in the Eastern District of New York. He argued that his release be granted because, as he alleged, he had previously been denied his right to confront witnesses, and that perjured testimony and the use of false and inflammatory evidence stymied his due-process rights.

Coupled with ineffective assistance of counsel at both the trial and appellate level, Hamilton asserted that this served as sufficient grounds for release.

Within the “scattershot” of allegations, as Weinstein described Hamilton’s petition, was the argument that crucial evidence may be buried in the Erie Basin Evidence Facility. As The New York Times reported, when Hurricane Sandy lashed the city in October 2013, the surge breached the Brooklyn evidence warehouse’s roll-top doors and hurtled hundreds — perhaps thousands — of its barrels into the wet muck.

Located among the evidence stored in the Red Hook facility is a piece of duct tape that Hamilton wants tested as proof of his innocence. Hamilton’s palm print was found on the original duct tape used to bind murder victim Paschal. It took NYPD latent experts four tests before revealing the single print.

Hamilton claimed that he had been unable to confront or analyze the duct tape because his lower court trial attorney, in 2007, failed to conduct a pretrial investigation or consult an independent fingerprint expert. Furthermore, Hamilton argued, he has since been denied access to the evidence that he needs in order to obtain an independent analysis.

The Sixth Amendment’s confrontation clause provides that in “all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him,” Weinstein explained in his March 27 ruling.

Fingerprint evidence can, in some instances, serve as an accusatory or testimonial witness against a defendant — particularly when a defendant’s fingerprints are gathered as evidence created for trial. While Hamilton’s fingerprints were used to against him at his trial, they were gathered at the time of his arrest, not in anticipation of litigation.

Hamilton’s prints, Weinstein noted, “were made primarily to identify [Hamilton] in order to process his arrest, not to create evidence for a trial … the fingerprint cards were created as part of a routine booking procedure.”

Although Hamilton was not denied his constitutional right to confront the fingerprint evidence, there was concern that he is being denied access to the evidence against him—evidence he claims will assist in his habeas petition and prove his actual innocence.

Because Hamilton was denied access to the evidence, his attorney argued that this was reason enough to support a habeas petition — a nimble argument Weinstein found clever but ultimately unsuccessful.

“Speculation based on surmise supported by eloquent conjecture of a skilled assigned attorney will not support federal habeas relief,” Weinstein quipped. “[Hamilton’s] case was well tried without constitutional error.”

The NYPD and Brooklyn prosecutors have restricted Hamilton’s access to the Red Hook evidence facility, noting that due to Sandy-related damage and debris, there are hazards that hinder access to the location.

Hamilton’s duct tape evidence was stored on Level 1 of the facility. Brooklyn prosecutors a March 2015 opposition letter said that Level 1 is “off limits,” and that NYPD policy is that “evidence for a criminal prosecution stored on Level 1 cannot be retrieved until after the sample testing is completed.”

Prosecutors also noted that NYPD personnel working on clearing the warehouse wear personal protective equipment. Only the NYPD commissioner has authority to override that policy, the Brooklyn District Attorney’s Office added.

Hamilton’s attorney, Lawrence Stern, told that Eagle that testing had been done on the facility and that no hazards were present. A January 2013 report by Airtek Environmental Corp, conducted for the NYPD, concluded that there were no hazards at the facility that would support non-restricted access.

Airtek did find that floodwater from Sandy physically impacted evidence stored on Level 1, but the environmental impact was “limited.” In addition, Airtek analysts noted that NYPD “may access the building with voluntary personal protection,” although protective gear was recommended.

Weinstein expressed reservations that even with access to the Erie Basin warehouse, Hamilton’s guilty conviction will likely be affirmed. “[A]lthough he claims to be ‘acutally innocent,’ powerful evidence of [Hamilton’s] guilt was introduced at trial,” Weinstein wrote. Further, Weinstein surmised, “the inference is strong that had defense counsel contested these prints, the evidence would not have helped petitioner [Hamilton].”

Weintein denied Hamilton’s habeas petition, but opened the door for an appeal on the issue of Hamilton’s right to confront the duct tape evidence, whether his defense counsel provided a constitutionally adequate defense with respect to the issue of obtaining an independent analysis of the duct tape and whether a different defense would have changed the verdict.

“The New York City Police Department is under a continuing obligation to produce the duct tape, and to expedite that production to the extent possible,” Weinstein concluded.