Testimony based on evidence that no longer exists derailed day six of a Yakutat homicide trial.
Robert Kowalski’s defense asked to block all testimony about evidence the Alaska State Troopers destroyed. Prosecutor James Fayette noted that disposing of the evidence was routine and clearly documented.
Witnesses are often asked to testify on the accuracy of transcripts or summaries of interviews with officers. But, in this case, there was a considerable amount of physical evidence, including original tape recordings, that were burned or thrown out in 1998, two years after Sandra Perry’s death in Yakutat.
“If I could be clear, the state never told us the file was destroyed! Never!” said public defender Eric Hedland after the jury had been temporarily excused.
If the judge suppressed that testimony, it could dramatically alter the course of the trial.
Superior Court Judge Louis Menendez was not happy about Hedland bringing up the issue while the trial was already underway. Hedland said he didn’t realize the evidence was destroyed until just before jury selection last week.
Fayette, the prosecutor, said Hedland got the documents noting the routine destruction two years ago. He said Hedland was engaging in “gamesmanship and tactics” and knew about it before the jury was seated.
“Well past the deadline for pre-trial motions and let the issue hang in the air and stink,” Fayette said. “The bloody truth is that there’s no case law that supports suppression as a remedy for destroyed evidence.”
For now, jurors will be notified about any original tape recordings that were destroyed. Most of the rest of the physical evidence, like clothing and personal effects, was also disposed. The shotgun is one of the few items remaining.
It was the sixth day of the trial and prosecutors had hoped to wrap up questioning of Sgt. James Jensen Jr. He was a Yakutat police officer for only two years when he interviewed Robert Kowalski after Sandra Perry died. Jensen reported multiple conflicting accounts of what led to the fatal shotgun blast recorded from a distraught Kowalski. In one, Jensen reported Kowalski handed Perry a cigarette lighter, while in another, Kowalski reporting being scared when Perry shouted “Boo!”
She was 39-years old when she died in a room at Yakutat’s Glacier Bear Lodge.