The admittedly negligent handling of evidence and multiple apparent breaches of department policy stand at the heart of an attempt by a defense attorney to get the case against her client thrown out.
For several hours over two days Thursday and Friday, Sarah Schlossberg, a Philadelphia attorney representing Samuel Andrew Mizell, questioned the Massac County sheriff and deputies in a 2016 case.
Mizell faces two counts each of predatory criminal sexual assault of a victim under 13, a Class X felony, and one count of sexual exploitation of children, a Class A misdemeanor.
Schlossberg’s questioning largely centered on the actions, or lack thereof, by investigator Chad Kaylor, who is set to succeed Sheriff Ted Holder when he retires in August, according to a social media post from Metropolis radio station WMOK.
The night of Aug. 1, 2016, according to his testimony at a hearing Thursday, Massac County Deputy Josh Wiley was called to a home in the county regarding a complaint that Mizell had shown pornography to, and masturbated in front of, a 13-year-old girl and a 10-year-old boy.
Wiley testified he spoke with the children’s mother and the girl, but didn’t transcribe their statements at the time, and put his recollections of what they said in his report when he returned to the office later that night. Wiley said he didn’t separate other possible witnesses when he spoke with the girl, did not attempt to secure any physical evidence and did not apply for a search warrant. He also testified he did not call for backup and did not call for another unit to attempt to contact Mizell.
Wiley testified that he turned the case over to Kaylor in a phone call that night.
Kaylor testified he was on vacation, though in the area, at the time, and didn’t take action in the case until a week later, when he observed interviews of the two youth at a child advocacy center Aug. 8. He said law enforcement was not aware of possible sexual assault against one of the children until those interviews.
Schlossberg said, after the hearing, that the male juvenile claimed in an interview at a child advocacy center Mizell had him perform a sex act on Mizell.
Kaylor also testified he didn’t apply for a search warrant until Aug. 17 — more than two weeks after the first report from that home — and that when he entered Mizell’s room, it had been mostly cleaned out.
Kaylor, who testified he never spoke to the alleged male child victim or Mizell, arrived at the house Aug. 17 with Holder and Chief Deputy J.D. Haverkamp, according to his testimony.
Holder and Haverkamp initially searched Mizell’s room, and called Kaylor in when they found a towel, a condom, sexual lubricant, a Pokemon game box and a bottle of vape juice, Kaylor said.
He said he took care to wear gloves while handling the evidence in order not to contaminate the items, and that he only had three paper bags on hand for collecting evidence.
Kaylor testified he didn’t put the items into an official log. The evidence was placed in a temporary vault, and Kaylor said when he went to retrieve the items the next day to finish the warrant paperwork, he was called out on another matter. He said he left the items in the squad room where he had been working on labeling them.
Kaylor said he never saw the items or attempted to retrieve them again until he was notified that the defense team wanted to examine the items. He said he was unaware the evidence was missing.
He said he believed the items had been put into the evidence locker where they go after they’ve been properly logged. Kaylor confirmed he never submitted the items for physical testing.
Schlossberg also focused on an interview Kaylor said he conducted with the mother of the children.
Kaylor testified he recorded the conversation and moved it from the digital recorder onto a separate hard drive, but that that hard drive later crashed.
He testified the drive was sent to Western Digital to see if it could be recovered — he had no copy of a mailing receipt — but said the $2,000 quote and their lack of assurance the data could even be recovered convinced the sheriff’s office that it need not attempt the recovery after consulting with the state’s attorney’s office.
Schlossberg asked Kaylor if he ever interviewed Mizell, to which Kaylor answered no.
Under cross-examination from State’s Attorney Josh Stratemeyer, Kaylor admitted he handled the lost evidence “very” negligently. Stratemeyer took over as state’s attorney in January, after former State’s Attorney Patrick Windhorst — now a state representative — resigned to take that position.
Schlossberg also questioned Haverkamp, who said executing the search warrant was his only involvement in the case.
Haverkamp testified he and Holder were let into the room where Mizell had stayed, a room that was locked but the homeowner had a key.
He said no photos were taken of the evidence where it was initially found, despite the department’s policy manual stating that photos of evidence should be taken before the evidence is moved.
Schlossberg also questioned Holder, who said he had no knowledge of the case other than his involvement in the serving of the search warrant.
Schlossberg asked him repeatedly regarding department policies, and Holder stated a few times that adherence to the policies could be dictated according to the needs of the case. When she asked Holder if he followed the manual, Holder responded, “It’s up to me whether I do it or not.”
Schlossberg also asked if he investigated the matter when the hard drive crashed, to which Holder responded, “Why would I?”
Schlossberg said she took the case after multiple public defenders had worked on it, and after Mizell had been offered a plea agreement in the case.
Schlossberg, originally from the area, said she was floored by how little evidence they had on which to base the plea agreement, and that all of the physical evidence and the interview had been lost.
She said she expects other witnesses to testify that multiple officers came to the scene the night of the initial allegation, despite testimony from sheriff’s officials that Wiley was the only one who responded.
She said another witness will testify that she was involved in cleaning Mizell’s room — with permission from law enforcement prior to the execution of the search warrant. Schlossberg said that witness also will testify that she offered to Kaylor to let him look at the totes full of things she had removed from Mizell’s room, but that Kaylor declined.
When Schlossberg asked Kaylor why he didn’t attempt to get that evidence, Kaylor said simply, “I don’t know.”
Circuit Judge Joe Leberman ordered a new hearing to conclude the defense’s motion for dismissal and argue other motions that were originally set for Thursday and Friday. The date has not been set.