Evidence tampering: What it means to the Patrick Kane rape case

SI.com's legal expert Michael McCann discusses the ramifications of evidence tampering in the Patrick Kane rape case. 
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We spoke with SI.com’s legal expert Michael McCann to get his thoughts on Wednesday’s bombshell revelation that key evidence in the sexual assault investigation of Chicago Blackhawks star Patrick Kane had been tampered with and that packaging from the rape kit had been left in the doorway of the alleged victim’s mother’s home.

Here’s McCann’s insight into how this could impact the ongoing investigation and what could happen next:

SI.com: What do these developments mean to the case against Kane? How does the case proceed after this? In fact, can it proceed?

Michael McCann: This is a significant development on at least four levels.

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First, assuming the [packaging] sent to the mom of the accuser is in fact genuine, it [suggests] tainted evidence. Should the case go to trial, the rape kit can still be deemed admissible but the judge would warn jurors that it may have been contaminated by tampering. Jurors would then be instructed that they can consider possible tampering in how much weight they assign to this evidence. Published reports indicate the kit does not establish that Kane committed rape. If true, it could serve as evidence that helps to exonerate him. This development, however, means jurors may assign less weight to the kit and that would work against Kane.

Second, Kane’s attorney, Paul Cambria, will likely now demand that the investigation into his client be dropped. For starters, he has already told media that a tampered kit would prevent him and his expert witnesses from independently testing it. This raises a procedural question of fairness and could convince prosecutors to drop the case. If Kane is later convicted of a crime, Cambria would also have a stronger argument for an appeal because he would claim that jurors were misled by faulty evidence.

More generally, Cambria can now argue that the investigation has been compromised by unlawful and unethical conduct by those who are entrusted with crucial pieces of evidence and thus any evidence can be doubted. If prosecutors ultimately charge Kane with a crime, Cambria would consistently remind jurors that evidence, while under the watch of Hamburg (NY) Police Chief Gregory G. Wickett and Erie County District Attorney Frank A. Sedita III, fell into the hands of the accuser’s mother. Cambria would thus try to discredit the entire case.

Third, local and county officials may not be capable of conducting a sufficiently impartial investigation of how the [packaging] was sent. As a result, it would now be appropriate for New York State Attorney General Eric Schneiderman to launch an investigation into how the [packaging] could have been sent to the accuser’s mother.

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Every person who had custody of the kit would likely be interviewed in an investigation. All records, including e-mails and texts, related to the whereabouts of the kit at all times would also be considered. Criminal charges for obstruction of justice, tampering and conspiracy could be brought against those who were involved in the unlawful release of the [material] and its transportation to the home of the accuser’s mother. It is thus possible that Kane avoids any criminal charges while those involved in the investigation of him could themselves be charged.

Fourth, the accuser’s mother could civilly sue persons who are found to have been involved with the plot to send the [packaging] to her. The most likely claim would be intentional infliction of emotional distress, which concerns conduct that is extreme and outrageous and causes severe psychological suffering. A general negligence claim concerning the duties of those persons could also be raised.

One potential challenge in a civil lawsuit is the doctrine of sovereign immunity, which is a powerful defense for government officials since it means they can only be sued for certain claims if they agree to be sued. This doctrine, however, has been limited by court rulings and does not apply to all types of civil claims.

SI.com: This seems like an unprecedented breach of protocol. Have you ever heard of anything happening like this before?  What scenario could have led to this?

McCann: I have never heard of [something like this] being sent to the parents of an accuser. It is a heinous act by a disgusting person or persons. I hope the culprits are identified and face the legal consequences I described above.

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There are different kinds of scenarios that might have led to this happening. They depend on which government worker had custody of the [material] at the time it was sent to the mother of the accuser. Was it stolen from the worker who had custody, or did the worker himself or herself send it? These are questions that will be answered as part of a governmental investigation. As I argued above, any investigation should probably be conducted by state officials, such as the New York Attorney General, rather than by local or county officials who may have had oversight over the government officials who are responsible for the release.

SI.com:What does this say about the integrity of the local police and their ability to move forward with the investigation?

McCann: It raises serious questions about the integrity of the local police department, but before assigning blame, it is important to know who had custody of the kit when it was taken. It could be a health care professional who had custody or a law enforcement official from another agency. An investigation will be needed to identify the culprit or culprits.

UDPATE: Shortly after this story went live, Erie County (NY) police issued a statement contradicting the claims of the accuser's attorney and confirming that they remained in possession of the rape kit and the original packaging. McCann had this to say in reaction to the latest development:

"I think this makes it even more likely New York Attorney General Eric Schneiderman steps in to investigate. Someone is lying. This confusion also taints the case and makes it less likely that Kane will ever be charged. I would also find it surprising if the accuser's attorney, Thomas Eoannou, did not first check with the authorities about this alleged evidence before going to the media, since he would damage his client's case and risk sanction by the state bar if the materials received by the accuser's mother turn out to be fabricated evidence."

Michael McCann is a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. This fall he is teaching an undergraduate course at UNH titled “Deflategate.” McCann is also the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law and he teaches “Intellectual Property Law in Sports” in the Oregon Law Sports Law Institute.