Mix-Up Over Evidence Delays Murder Retrial

When 31-year-old Darrell Roberts of Santa Ana went on trial on murder charges in the death of his girlfriend’s 2-year-old son two years ago, neither his attorneys nor the prosecutors were aware that much of the evidence in the case was stored in a shoe box at the lab of the autopsy physician. Nor did they know that some evidence may have disappeared altogether.

Roberts’ trial ended in a hung jury, 9 to 3 in favor of his acquittal. He is now back in Superior Court to stand trial again in the boy’s death.

But the prosecution’s attempts to retry him may be in jeopardy. Judge David O. Carter dismissed a jury panel for Roberts’ retrial on April 10 when he learned that at least 36 slides of tissue taken from the dead boy’s body were only discovered on April 9. Apparently more than 70 slides were made altogether, but only 36 were known at the first trial.

Carter is conducting a hearing this week and next on a request by defense attorney Milton Grimes to dismiss the murder charges because of the missing evidence.

Visit to Lab

Carter on Thursday approved a defense request for a visit next week to the lab of Dr. Walter Fischer in Anaheim, so the court can be shown how the slides of tissue taken from the dead boy were misplaced.

Under court discovery rules, the slides should have been made available to both the prosecutor and the defense at Roberts’ trial in July, 1983.

The prosecution is just as unhappy about it as the defense. For all the prosecutors know, the missing slides might have helped them gain a conviction at the first trial.

“It’s unfortunate,” said Deputy Dist. Atty. Franklin Carroll.

Asked if he considered Fischer’s handling of the slides negligent, Carroll said, “I suppose that’s what this hearing will determine.”

Asked if the missing slides might cost the prosecution a chance to retry Roberts, Carroll responded: “We’ll have to find out.”

Fischer found the slides two weeks ago in a shoe box where he had been storing tissue slides from drowning victims, according to his testimony at a pretrial hearing in Carter’s court this week.

“How did those slides end up in that shoe box?” Roberts’ attorney, Milton Grimes, asked Fischer.

The pathologist shook his head.

“I don’t know,” he said. “They were put there by accident.”

Fischer is an associate at Anaheim Clinical Laboratories, which has a county contract to perform most of the autopsies for the Orange County coroner’s office.

Roberts was arrested nine months after the Aug. 21, 1981, death of Julius Caesar Math III, who had been in Roberts’ care while the boy’s mother was away shortly before his death. Prosecutors said the delay in filing charges against Roberts was partly because they were waiting on test results from Dr. Fischer.

Fischer was the key witness against Roberts at his first trial in 1983. Fischer testified that the boy died of injuries suffered between two and eight hours before his death. The boy had been in Roberts’ care some seven hours before his death.

Fischer based his findings on the results of the tissue slides. But only 36 slides were introduced at the trial. Fischer did not discover until two weeks ago that there were either 74 or 72 tissue slides altogether.

36 or 38 Missing Slides

Fischer also testified this week that in addition to the 36 or 38 missing slides, there may be missing a tissue block from which the slides were made.

“We really have no idea how many slides were taken altogether,” Grimes said Thursday. “There are two issues here: One is a question of double jeopardy for Mr. Roberts, since he’s already been tried once without all the evidence available. But more important, we may never know whether evidence was destroyed which may have proved his innocence.”

Both sides agree it is difficult to keep track of the tissue slides in this case. For example, there were 36 slides at the first trial, and Fischer reported on April 9 he had another 38 slides. That would make 74. But he showed up in court with 71. One of the original 36 is somehow missing--though all sides agree that may not be Fischer’s fault, since the slides were passed back and forth repeatedly between the prosecution and the defense as they prepared their cases. And two of the second group of slides (the slides not discovered until April 9) are missing.

May Have Miscounted

Fischer testified that those two might be explained because he may have miscounted how many slides he had in the shoe box. But prosecutor Carroll said that “right now it looks like there are three slides missing.”

There is one other important point of confusion. Could it be that Fischer based his findings at the first trial on the 70-plus slides, even though only 36 were in evidence? Carroll said that question may be answered at the hearing Carter is conducting.

Roberts, who is free on $100,000 bail, has spent most of his time the past two weeks pacing the courtroom hallways while the attorneys talked in chambers.

“I’ve been waiting four years to get this over with, I can wait a little longer,” Roberts said.