DURHAM, N.C. — The defense attorney for a man charged last May with trafficking cocaine says police intentionally withheld and tampered with an audio tape before turning it over as evidence.
Ten minutes of audio from the Interstate 85 traffic stop in which Officer J.J. McDonough found 11 pounds of cocaine in Kenneth Perry's car is missing, his attorney, Bob Brown said. The cruiser's video system recorded the stop, and audio continued to record while Perry sat in the police cruiser after being arrested and McDonough spoke to his wife on his cell phone.
"They said they erased it, because they didn't want us to overhear a conversation that was carried on between the officer and his wife," Brown said in court hearing Thursday on a motion for a senior resident Superior Court judge to assume jurisdiction of the case.
Durham County Assistant District Attorney Jim Dornfried said the original tape was intact, but admitted police handed over a copy as evidence with some audio edited from it.
"The part in question that the defense counsel claims has been altered, the state doesn't believe has been altered," Dornfried said.
Senior Resident Superior Court Judge Orlando Hudson reminded Dornfried it is the court's job to decide what evidence is or is not relevant, comparing the situation with former prosecutor Mike Nifong's withholding evidence in the Duke lacrosse case.
"You can't make a tape come out the way they want it to come out," Hudson said. "That's what's wrong with this situation. I don't see that being any different than people working with the DA's office and deciding certain DNA shouldn't come out."
Durham Police Chief Jose Lopez said department policy is to not alter evidence in any way. He said his office is reviewing the tape and the officer's actions.
"If they're doing it in this case, they're probably doing it in other cases," Brown said.
But police and prosecutors insist there is nothing to hide, calling the decision to hand over the edited tape a bad one on the officer's part.