Seized guns sometimes lost, compromising cases

THE CITY HALL room is jam-packed with guns.

From floor to ceiling, pistols are piled in dozens of plastic tubs, recycling bins and milk crates. They are stuffed in drawers inside some 60 metal filing cabinets. Atop cabinets, rows of rifles sit precariously on homemade wooden racks.

In Room 715, the so-called gun room, members of the Police Department's Evidence Custodian Unit guard thousands of guns police have seized from crime scenes. Most become vital evidence in court cases.

The problem is: Some guns are missing.

No one can say for certain how many weapons have been misplaced, but a November 2003 internal police audit obtained by the Daily News failed to locate seven guns in a sample survey of 3,187 booked into evidence.

In the audit, police officials suspected record-keeping errors. They believed that the guns most likely were melted down and destroyed, but were not recorded as such. The police captain in charge of the evidence said yesterday that all seven guns were later found. He said guns under his watch rarely get misplaced.

"It may happen sometimes," said Capt. Michael Pohar, of the Evidence Custodian Unit. "A gun may be misplaced and the only reason it is, is because it was moved on the shelf and now we have to look a little bit harder. It's just like anything else . . . like where is the black sock you lost in the house?"

But law-enforcement experts say the city's gun room seems overloaded with weapons, not fully secure and poorly organized. At worst, criminals could walk free because key evidence is lost.

At the time of the audit, there were 31,000 guns in Room 715 and most had been confiscated by police since 1995.

While the number of guns lost might seem inconsequential, just one missing weapon could result in a miscarriage of justice, experts say.

"If you don't have the gun, you don't have the gun - no matter what," said Barney Kinman, a retired police lieutenant from Kentucky who has written about evidence rooms for the "FBI Law Enforcement Bulletin." "And any time anything is missing in your property room, that's not good.

"It's just as bad to have a record showing, 'I destroyed a gun that was needed in a criminal case' as to say, 'I lost a gun, I can't find it in my property room,' " Kinman said. "They are equal in egregiousness."

Just two months ago, Assistant District Attorney Lorraine Donnelly needed a .38-caliber pistol for her case against Timothy Haines, 23, of Hunting Park. Haines was charged with drug dealing and possession of an instrument of a crime.

During a three-day trial, police Cpl. Patrick Trainor, supervisor of the gun room, testified that the pistol seized in the Haines case could not be found.

"It was a disgrace," said Andrew Heller, attorney for Haines. "How do you lose a gun?"

City cops work tirelessly to take guns off the streets, seizing about 5,000 weapons each year.

"They are taking them off the street . . . and they are losing them," Heller said last week. "That is something that I find unconscionable."

In truth, a lost gun just might be a defense attorney's dream, particularly in a "CSI" TV-show era in which jurors often expect prosecutors to present hard evidence linking the defendant to a crime.

"I mentioned it a couple of times in my closing arguments," Heller said. "It was like a cherry on a big ice-cream sundae."

A jury found Haines not guilty.

For Donnelly, the assistant district attorney, the lost gun was an additional hurdle in an already difficult case.

Shortly after the trial, Donnelly expressed in an e-mail to Pohar her irritation over the missing gun.

Pohar said he explained to Donnelly that the gun was accidentally destroyed last year.

Pohar said he and his staff looked for the gun for nearly a week.

"We had everybody in the room pulling and [inventorying] guns and looking real hard," Pohar said. "We don't just brush something like this off."

"There were so many [guns] like that one," Pohar said.

Three times a year, Pohar and his staff take about 3,500 guns to a steelmill in Coatesville, where the weapons are melted down, he said.

"That was the only [gun] we couldn't produce for court," Pohar said. "It had no effect on the case. It was just a show-and-tell. It wasn't a smoking gun in a homicide."

The Police Department's Quality Assurance Bureau has not conducted an audit since 2003. Pohar said it would cost about $350,000 to hire an outside agency to inventory all guns.

But the evidence unit performs its own quality-assurance checks, Pohar said.

Each day, the staff checks shelves and cabinets for any guns that might have dropped.

"Sometimes things will fall out of place, where you go to a drawer to get something and drawers are not secure in the back and guns will fall to the next drawers," Pohar said. "They will check it just to make sure everything is in its place."

They also conduct random inventory checks, matching guns to the computer records.

Despite being located in a busy public building, the gun room is relatively secure, but still could be vulnerable to theft, according to law-enforcement experts on evidence storage.

The room, similar to a large walk-in closet within Room 715, is typically kept open, but guarded during the day. At night, the gun room is sealed by a metal door. The floors and walls are concrete.

"This is a big bunker," Pohar said. "People talk about, 'Well, the Taliban is gonna come here and blow it up.' I don't think so."

The front door of Room 715 is locked and alarmed. But there are no motion detectors or burglar alarms within the gun room itself.

Ideally, evidence should be safeguarded by alarms or motion detectors within the room, said Ernest Dorling, a former federal agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives.

The gun room is on the same floor as City Hall's janitorial staff, several administrative offices for Common Pleas Court, and drink and snack machines.

"The property room should probably be the most secure part of your police department," said Kinman, who oversaw the evidence rooms within the Lexington-Fayette (Ky.) Urban County Division of Police. "If you've got a place that the public has access to, that's a major concern."

Anyone who enters Room 715 is greeted by an evidence-unit officer behind a counter that even police officers are not permitted to cross unescorted.

Guns checked into evidence are logged into a computer. Each gun is bar-coded, scanned and entered into a database.

To check out a gun for a trial, a police officer or prosecutor must present a property receipt and a photo I.D. The evidence staff scans the photo I.D. and records who checked out the gun in the computer system.

"Maintaining the integrity of the evidence is so important that any mishandling of it disrupts the entire judicial process," Dorling said.

But with thousands of guns flowing in and out of City Hall, mistakes are bound to happen.

"If you don't have the proper space, the proper manpower and the proper procedures, bad things are going to happen," Kinman said. "It's inevitable."

When a deli owner, Scott Hua, went to Room 715 last summer to reclaim two guns confiscated by police during a drug raid at his restaurant, evidence-unit workers couldn't locate one of the guns, according to Hua's attorney, Stephen R. Murphy.

"We were advised that the other gun was 'not there,' " Murphy said. "They could not provide us with a further explanation as to what happened to it."

Pohar, however, said a court order required the evidence unit to return only one gun to Hua.

Hua had stored two guns in a safe inside his deli at 15th and Federal streets. Both were legally registered to him and the court ruled that the guns should be returned to Hua, who was not charged with any crime, Murphy said.

"It's not a question of whether the owner has a legal right to have that property returned to him, because as you know, even if he has a court order, if the police can no longer find it, it's gone, it's vanished," Murphy said.

The only recourse, said Murphy, is for Hua to file a claim with the Risk Management Division of the city's Finance Department to recoup the cost of the gun.

Murphy said he believes the gun was simply misplaced by accident.

"We don't think it's evidence of any type of internal corruption," Murphy said. "I think it's an innocent mistake. Unfortunately, it's a sad commentary on the sheer volume of guns that are confiscated on our streets." *