# Calls to 911 out of reach as evidence



## policelaborlaw.com (Mar 7, 2006)

*Calls to 911 out of reach as evidence*

*Error entangles many recordings*

By Kim-Mai Cutler and Sacha Pfeiffer, Globe Correspondent and Globe Staff | June 21, 2006

The recordings of about a million 911 calls to the Massachusetts State Police were rendered inaccessible by a Verizon subcontractor hired to upgrade the force's archival system, according to state officials yesterday. The error could undermine criminal cases.

Kelly Nantel, spokesperson for the Executive Office of Public Safety, said that the missing data includes almost a year's worth of 911 cell phone calls routed to State Police headquarters in Framingham as well as a half million radio communications between troopers and dispatchers. The calls include some emergency calls made as recently as last week, according to Verizon.

``The vendor who was performing the upgrade erred significantly," Nantel said. ``But the good news is that Verizon recognizes the importance of the situation and they've put together a good plan of action. They've dedicated every possible resource to it."

Verizon said that while the recordings are inaccessible they were not erased, and the company was assembling a team of data-recovery experts for in-depth analysis. Verizon identified the vendor as Plant*CML Inc. of Temecula, Calif. A company representative declined to comment.

``This is an unfortunate incident, but we want to make sure we do as much as we can to retrieve the data," said John Bonomo, a Verizon spokesperson. Bonomo said the data is not in Verizon's network but may still be retrievable from the equipment that underwent the upgrade. Neither Bonomo nor Nantel could provide details about the equipment or say with certainty that it could be recovered.

About 42 percent of all emergency calls from cellphones in the state are routed through State Police headquarters, according to Nantel.

Defense attorneys said the recordings could provide important evidence that has the potential to clear defendants of wrongdoing.

``Those calls could contain exculpatory information that would be now forever gone, and losing that could harm the defense of a case," said Anne Goldbach, president of the Massachusetts Association of Criminal Defense Lawyers.

``If a witness or an alleged victim said that they called 911 and we can't verify that, that's a problem," said Goldbach, who is also a public defender and director of forensics for the Committee for Public Counsel Services. ``If a person gave one version of what happened and later said something different, we might not ever know that. If a person said they called and were very, very upset and hysterical, and in fact it was a very calm call, that's another way somebody could be contradicted, but there would be no way to demonstrate that now."

Emergency recordings can contain other vital information such as what courts refer to as ``excited utterances," or statements made by people in response to shocking events, said Timothy J. Bradl , a former Suffolk County prosecutor who is now a criminal defense attorney. Excited utterances can be important in criminal cases because ``the theory is the person hasn't had time to fabricate the statement," Bradl said.

Emergency tapes sometimes also have ``dying declarations," the deathbed words of people succumbing to violent crimes or medical fatalities. And for many law enforcement investigators, reviewing 911 tapes is the first step in a criminal investigation because the recordings often contain evidence such as names, phone numbers, and physical descriptions of perpetrators.

``Those are things you never get back," Bradl said.

``A 911 call is an invaluable window into the incident as it occurs in real time," he said. ``It's the only piece of evidence you will ever have that is a memorialization of the unfolding of the incident. So losing it is huge on so many levels."

Nantel said district attorneys were informed about the error yesterday, and that she did not yet know of any specific cases affected by the missing data. Calls to four district attorneys offices were not returned last night.

``911 [calls] are rarely the crucial piece of evidence in a case, but we don't want to minimize the importance of them," she said.

Raja Mishra of the Globe staff contributed to this report. Kim-Mai Cutler can be reached at [email protected]. Sacha Pfeiffer can be reached at [email protected].


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