Tulsa police have reported losing two important pieces of evidence from the department's property room in separate cases -- one of which may allow a man formerly convicted of two murders to avoid the death penalty in retrial, prosecutors said.
Tulsa police Officer Jason Willingham said an internal investigation found that clerical errors led to the destruction of a murder weapon and a rape kit.
Tulsa County District Attorney Tim Harris said the murder weapon's destruction "greatly affects our ability to proceed with a death penalty request" in the retrial of Phillip Anthony Summers.
Summers' lawyer, Stanley Monroe, said that developments in cases involving Summers have led to a possible plea deal in the murder case.
Summers is already serving time regarding a gang conspiracy conviction in federal court.
"Clearly, it benefited Mr. Summers, as far as our position," Monroe said.
The murder weapon was a gun allegedly used in the shooting death of Shelly and Ples Vann Jr. in 2004.
On Friday, the Tulsa County District Attorney's Office filed an endorsement of Summers as a prosecution witness in the Neal Sweeney 2008 murder case.
Three men await separate murder trials, and one man awaits sentencing for soliciting murder, in connection with the slaying of Sweeney, a Tulsan who was fatally shot at his business.
Both Shelly and Ples Vann Jr. were shot three times in their home at 38 E. 50th Place North.
A police investigation linked the gun to Summers, 26, who was convicted in the case, court records show.
On appeal the conviction was overturned, which has led to a retrial scheduled for March, according to court documents.
The conviction was overturned because Summers' right to a fair trial was violated because the judge did not let a witness testify before the jury about an alternative perpetrator, according to the appeals court majority opinion.
Summers is also in federal court on charges filed under seal related to alleged plots to kill a former Tulsa police detective.
The other key piece of evidence determined to be missing was a rape kit in an unrelated trial that nonetheless resulted in a conviction, according to court records.
The defendant in that case, Ralph Thomas Smith Jr., was convicted Dec. 20 on six counts relating to rape, kidnapping and drug possession.
Smith admitted to having sex with the victim in 2008, which nullified the need for the rape kit evidence in court, Willingham said.
"The rape kit was a clerical error. It was a mistake we made," Willingham said.
Both pieces of missing evidence were investigated by the Police Department, which made changes to add extra protection to prevent the errors they found, Willingham said.
The gun linked to Summers' murder charges was filed as evidence under multiple cases, but a "hold" was only placed under Summers' first federal case, Willingham said.
"At that time there was no way to have two holds," he said. "So they took the hold off. They had no idea it was supposed to be on hold for homicide."
Now, officers are able to hold evidence for multiple cases, and property room staff send out a notice of the property that is marked for destruction long before it is actually destroyed, Willingham said.
Additionally, Willingham said the property room brings in about 28,000 pieces of evidence every year, while destroying about 25,000 each year from past cases.
Other than the two recently confirmed by police, there have been no other reports of missing evidence in the last year, Willingham said.
"We wish we would not make mistakes on cases as serious as that," he said. "It's a constant job to maintain that property."
Internal affairs officers stage random audits of the property room, where officers will select random cases and search for the evidence, Willingham said.
"If they find a piece missing, they go back and find out how it happened, so they are constantly updating how they operate," Willingham said.
Copyright 2012 - Tulsa World, Okla.
McClatchy-Tribune News Service
