MAYS LANDING— A judge will decide Tuesday whether to dismiss a murder indictment against a Mays Landing man after his defense attorney argued the Atlantic County Prosecutor's Office destroyed possible evidence.
Keshaun Earley is accused of fatally shooting 25-year-old James Jordan on Aug. 26, 2012, in Atlantic City's Carver Hall Apartments.
Earley told investigators that at the time of the killing, he was miles away at Mays Landing's Oakcrest Estates, where he lived.
Investigators took 12 hours of surveillance video from each of the complex's 18 cameras — a total of 216 hours — to check out the alibi.
But public defender Eric Shenkus received just 30 minutes of video after asking for any outstanding evidence during a court appearance in July. The rest of the video was destroyed.
"I chose anything that was consistent to the defendant or relevant to the case," Sgt. Lynn Dougherty said of portions of a hard drive she had burned on to a DVD for Shenkus.
She and others with the Prosecutor's Office told the judge that they needed to free up the hard drive to put back into service due to limited resources in the office. Dougherty stressed that is not why she chose the portions she did.
That the data — which had been in an evidence area for nearly 10 months prior — was erased two days after Shenkus asked for it is what “jumps out at you," Superior Court Judge Mark Sandson said.
Dougherty testified that she spent about six weeks going over the hours of video, and found only the two portions — 20 minutes from one camera and 10 from another — had someone matching Earley's description.
"She spent six weeks watching this stuff, but she didn't take one page of notes," Shenkus told the judge.
Sandson said the Prosecutor's Office could have offered Shenkus a chance to view the entire hard drive, if he chose to do so.
The judge continued to question why an attorney with knowledge of trial procedure and case law wouldn't have been in on the decision on whether the remaining part of the recording should be destroyed. And he was surprised to learn there apparently is no policy set in place for such decisions.
"I think what we found out is anybody can make that call," Sandson said. "I find that surprising."
Investigators make similar decisions every day, Assistant Prosecutor Seth Levy argued.
He said what was destroyed was not evidence because the defendant -- or anyone matching his description -- was not in that footage.
"That may ultimately be the case," Sandson said. "But we'll never know. That's the part of this that disturbs me: We'll never know."
He then asked Shenkus: "Do you think the only appropriate remedy is dismissal of the murder indictment?"
"Yes," he replied.
"This is evidence I cannot otherwise re-create," Shenkus said. "It's irreversible."
Trial was scheduled to begin Tuesday, but due to other outstanding motions in the case, jury selection has been pushed to Wednesday.
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